97404 Federal Register / Vol. 89, No. 235 / Friday, December 6, 2024 / Proposed Rules 

1See Updates on the Family Caregiver program 

for legacy participants and applicants, VA press 

release, April 20, 2022, available at https://

news.va.gov/102672/updates-on-the-familyDEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 71 

RIN 2900–AR96 

Amendments to the Program of 

Comprehensive Assistance for Family 

Caregivers 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to revise the 

regulations that govern VA’s Program of 

Comprehensive Assistance for Family 

Caregivers (PCAFC). This proposed rule 

explains numerous changes VA is 

considering making that would 

primarily impact PCAFC, including, but 

not limited to, removing, adding, and 

revising definitions; revising criteria 

related to eligibility, revocations, and 

discharges; revising certain processes 

related to reassessments and the timing 

of reassessments; and relaxing in-home 

visits during emergencies. 

DATES: Comments must be received on 

or before February 4, 2025. 

ADDRESSES: Comments must be 

submitted through www.regulations.gov. 

Except as provided below, comments 

received before the close of the 

comment period will be available at 

www.regulations.gov for public viewing, 

inspection, or copying, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post the comments 

received before the close of the 

comment period on the following 

website as soon as possible after they 

have been received: http://

www.regulations.gov. VA will not post 

on Regulations.gov public comments 

that make threats to individuals or 

institutions or suggest that the 

commenter will take actions to harm an 

individual. VA encourages individuals 

not to submit duplicative comments; 

however, we will post comments from 

multiple unique commenters even if the 

content is identical or nearly identical 

to other comments. Any public 

comment received after the comment 

period’s closing date is considered late 

and will not be considered in the final 

rulemaking. In accordance with the 

Providing Accountability Through 

Transparency Act of 2023, a 100 word 

Plain-Language Summary of this 

proposed rule is available at 

Regulations.gov, under RIN 2900–AR96. 

FOR FURTHER INFORMATION CONTACT: 

Colleen Richardson, PsyD, Executive 

Director, Caregiver Support Program, 

Patient Care Services, Veterans Health 

Administration, Department of Veterans 

Affairs, 810 Vermont Ave. NW, 

Washington, DC 20420, (202) 461–5649. 

(This is not a toll-free telephone 

number.) 

SUPPLEMENTARY INFORMATION: 

I. Background and Public Input 

A. Statutory Authority 

Title I of Public Law 111–163, the 

Caregivers and Veterans Omnibus 

Health Services Act of 2010 (hereinafter 

referred to as the ‘‘Caregivers Act’’), 

established section 1720G(a) of title 38 

of the United States Code (U.S.C.), 

which required VA to establish a 

program of comprehensive assistance 

for family caregivers of eligible veterans 

who incurred or aggravated a serious 

injury in the line of duty on or after 

September 11, 2001, are in need of 

personal care services, and meet other 

requirements. The Caregivers Act also 

required VA to establish a program of 

general caregiver support services, 

pursuant to 38 U.S.C. 1720G(b), for 

caregivers of covered veterans of all eras 

of military service. VA implemented 

PCAFC and the Program of General 

Caregiver Support Services (PGCSS) 

through its regulations in 38 CFR part 

71. 

On June 6, 2018, the John S. McCain 

III, Daniel K. Akaka, and Samuel R. 

Johnson VA Maintaining Internal 

Systems and Strengthening Integrated 

Outside Networks Act of 2018 

(hereinafter referred to as the ‘‘VA 

MISSION Act’’) was signed into law, 

which in part amended 38 U.S.C. 

1720G. These amendments included 

expanding eligibility for PCAFC in a 

phased approach to Family Caregivers 

(as that term is defined in 38 CFR 71.15) 

of eligible veterans who incurred or 

aggravated a serious injury in the line of 

duty before September 11, 2001, 

establishing new benefits for designated 

Primary Family Caregivers (as that term 

is defined in § 71.15) of eligible 

veterans, and making other changes 

affecting program eligibility and VA’s 

evaluation of PCAFC applications. 

B. Recent Program Improvements 

VA adopted revisions to 38 CFR part 

71 in a final rule dated July 31, 2020, 

following the enactment of the VA 

MISSION Act. 85 FR 46226 (July 31, 

2020) (hereinafter the July 31, 2020 

Final Rule). The July 31, 2020 Final 

Rule included changes to certain PCAFC 

eligibility criteria and took effect 

October 1, 2020. 

In parallel to those regulatory 

changes, VA implemented new 

processes used within PCAFC. For 

example, in late 2020, VA implemented 

the use of Centralized Eligibility and 

Appeals Teams (CEATs). CEATs are 

composed of a standardized group of 

inter-professional, licensed 

practitioners, with specific expertise 

and training in the eligibility 

requirements for PCAFC and the criteria 

for the higher stipend level. CEATs 

make determinations of PCAFC 

eligibility and, if applicable, 

determinations on whether the Primary 

Family Caregiver is eligible for the 

higher stipend level. Since 

implementing CEATs, the time required 

to evaluate PCAFC eligibility and render 

application determinations has been 

markedly reduced. At the end of fiscal 

year 2021, 62.9 percent of PCAFC 

application determinations were 

rendered within 90 days of VA receiving 

the application. By the end of fiscal year 

2023, this percentage increased and 98 

percent of PCAFC application 

determinations were rendered within 90 

days of VA receiving the application. 

Additionally, VA continues concerted 

efforts to enhance training of staff 

involved in the evaluation of PCAFC 

eligibility criteria and delivery of 

PCAFC. Further, VA continues to 

institute standardized quality assurance 

measures to monitor and support 

accuracy and consistency in decisionmaking. If VA issues a PCAFC 

determination that an individual 

disagrees with, processes are in place 

for individuals to request a review of or 

appeal such decision(s). Those 

processes are not addressed in this 

proposed rule. Information about 

options to request review of or appeal a 

PCAFC decision is available at https:// 

www.caregiver.va.gov/support/PCAFC_

Appeals.asp. 

Since these regulatory and policy 

changes have taken effect, access to 

PCAFC has expanded and the number of 

eligible veterans and Family Caregivers 

participating in PCAFC has continued to 

grow. VA has, however, continued to 

hear concerns from veterans, caregivers, 

and other stakeholders about 

inconsistency in VA’s decisions 

impacting eligibility for PCAFC, and 

concerns that certain PCAFC eligibility 

criteria may be too restrictive. 

In response to those concerns, in 

March 2022, VA initiated a review of 

PCAFC to examine areas within PCAFC 

for which changes might be considered. 

This review included engagements with 

veterans, caregivers, Veterans Service 

Organizations (VSOs) and others to hear 

direct feedback about PCAFC.1 During 


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caregiver-program-for-legacy-participants-andapplicants/ (last visited Aug. 8, 2024). 

this review, VA identified further 

opportunities for improvement. 

C. Consideration of Regulatory 

Amendments and Executive Order 

14095, Increasing Access to HighQuality Care and Supporting Caregivers 

Based on the activities outlined 

above, VA is proposing regulatory 

changes to more fully address concerns 

raised by stakeholders relating to 

PCAFC eligibility criteria and other 

program requirements. Furthermore, in 

April 2023, the President issued 

Executive Order 14095 which, among 

other things, directed the Secretary of 

Veterans Affairs to consider issuing a 

notice of proposed rulemaking to 

appropriately modify the eligibility 

criteria for PCAFC. In accordance with 

this Executive Order and based on 

feedback from caregivers, veterans, and 

other stakeholders and VA’s internal 

evaluation of the program, VA has 

considered appropriate modifications to 

PCAFC eligibility criteria as well as 

other program changes, which are 

reflected in this proposed rule. VA 

believes the regulatory amendments 

proposed below, along with changes VA 

has already made to improve its support 

of eligible veterans and Family 

Caregivers, demonstrates VA’s 

unwavering commitment to 

administering a program that is fair, 

consistent, and transparent in its 

decisions. 

D. Public Input 

VA routinely receives information 

and feedback about PCAFC from 

stakeholders. For example, on December 

5, 2023, VA conducted a virtual 

roundtable session with various VSOs 

and other caregiver advocacy 

organizations. The session provided 

these stakeholders an opportunity to 

share their views on topics related to 

PCAFC. There were 24 representatives 

from 15 organizations that attended the 

virtual roundtable session with 13 

individuals providing feedback during 

the session. Representatives provided 

information and recommendations on 

how best to improve PCAFC eligibility 

criteria, evaluation processes, and other 

aspects of PCAFC that are governed by 

regulation. Proposed modifications to 

part 71, as discussed in this proposed 

rule, address some of the feedback 

received prior to and during the 

December 5, 2023, session. A written 

transcript of the December 5, 2023, 

virtual roundtable session, including a 

list of participating organizations, is 

publicly available online at 

www.regulations.gov under RIN 2900– 

AR96. While VA did not solicit written 

statements as part of this event, those 

received by VA can also be found online 

at www.regulations.gov under RIN 

2900–AR96. 

VA welcomes comments from the 

public on all aspects of its proposed 

modifications to VA regulations in part 

71. VA also seeks specific feedback 

within certain sections of this proposed 

rule through targeted questions located 

at the end of the applicable sections. 

II. Proposed Changes to 38 CFR Part 71 

As explained in more detail below, 

VA proposes to revise part 71 by adding, 

removing, and revising definitions and 

eligibility criteria; revising the 

regulations governing reassessments; 

revising and clarifying certain 

provisions regarding the application 

process and the evaluation process for 

determining eligibility; revising 

provisions regarding adjustments to the 

stipend payments; revising and 

clarifying certain processes regarding 

revocation and discharge; extending the 

transition period for legacy participants, 

legacy applicants, and their Family 

Caregivers; and making other changes. 

VA proposes these changes to simplify 

and clarify certain aspects of VA’s 

administration of PCAFC and to support 

program integrity. Illustrative examples 

are included throughout this proposal to 

assist the reader with understanding 

VA’s intended application of the 

proposed rule. 

A. Transition Period for Legacy Cohort 

VA is proposing changes to PCAFC 

eligibility and stipend level criteria as 

part of this rulemaking. Under this 

proposal, VA would extend the 

transition period for legacy participants 

and legacy applicants, and their Family 

Caregivers, as those terms are defined in 

§ 71.15, to allow time for VA to evaluate 

their PCAFC eligibility and stipend 

level pursuant to revised regulations 

that may result from this rulemaking. 

Specifically, VA proposes to extend 

their eligibility and the time period for 

VA to complete their reassessments, 

through a date that is 18 months after 

changes from this rulemaking are made 

final and effective. 

As part of the rulemaking that took 

effect October 1, 2020, VA made 

changes to the eligibility criteria for 

PCAFC in § 71.20 and in doing so, set 

forth a transition plan for legacy 

participants and legacy applicants, and 

their Family Caregivers, collectively 

referred to herein as the legacy cohort. 

85 FR 46253 (July 31, 2020). As part of 

the transition plan, VA established a 

one-year transition period wherein the 

legacy cohort would generally continue 

to remain eligible for PCAFC while VA 

completed reassessments to determine 

their eligibility for PCAFC under the 

new eligibility criteria. Id. 

Subsequently, through publication of 

two interim final rules, VA extended the 

one-year transition period and timeline 

for VA to conduct all reassessments of 

the legacy cohort. The first interim final 

rule, Extension of Program of 

Comprehensive Assistance for Family 

Caregivers Eligibility for Legacy 

Participants and Legacy Applicants, 

referred to herein as the First PCAFC 

Extension for Legacy Cohort, was 

published and effective on September 

22, 2021. 86 FR 52614 (September 22, 

2021). The First PCAFC Extension for 

Legacy Cohort extended the transition 

period by one year. Id. VA then 

published a second interim final rule, 

Extension of Program of Comprehensive 

Assistance for Family Caregivers 

Eligibility for Legacy Participants and 

Legacy Applicants, referred to herein as 

the Second PCAFC Extension for Legacy 

Cohort, which became effective on 

September 21, 2022, and extended the 

transition period for the legacy cohort 

and timeline for completing their 

reassessments by three additional 

years—to September 30, 2025. 87 FR 

57602 (September 21, 2022). 

1. Proposal To Extend Transition Period 

for Legacy Cohort 

VA proposes to further extend the 

legacy cohort transition period through 

a date that is 18 months after the date 

this rulemaking, which proposes 

changes to PCAFC eligibility and 

stipend level criteria, becomes final and 

effective to allow members of the legacy 

cohort to be reassessed by VA pursuant 

to such criteria. Without this extension, 

members of the legacy cohort would be 

subject to inequitable treatment or 

unnecessary burden, depending on 

whether changes to PCAFC eligibility 

and stipend level criteria resulting from 

this rulemaking go into effect before or 

after September 30, 2025. 

If changes to the PCAFC eligibility 

and stipend level criteria are made final 

and effective under this rulemaking 

before September 30, 2025, VA would 

not have sufficient time to complete 

reassessments of all members of the 

legacy cohort under the revised criteria 

before such date. In this scenario, for 

reassessments not completed under the 

revised criteria before September 30, 

2025, VA would have to carry out 

discharges and stipend reductions based 

on reassessments completed under 

outdated criteria; or alternatively, VA 

would have to set those determinations 

aside and complete new reassessments 


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under the new criteria, which, after 

September 30, 2025, would result in 

inequities among members of the legacy 

cohort. This is because members of the 

legacy cohort who are reassessed under 

the new criteria and found to be no 

longer eligible for PCAFC, or eligible but 

with a reduced stipend amount, would 

be impacted at different times based 

only on when they are reassessed. 

Neither option would be fair and 

equitable to all members of the legacy 

cohort. 

If changes to the PCAFC eligibility 

and stipend level criteria are made final 

and effective under this rulemaking 

after September 30, 2025, after that date, 

VA would have to begin carrying out 

discharges and stipend reductions for 

members of the legacy cohort pursuant 

to criteria VA is proposing to change. 

Once the revised criteria are made final 

and effective, such individuals would 

be required to reapply to be considered 

under the new criteria. This could be 

perceived as unnecessarily burdensome, 

and for those who reapply and are 

found eligible, this gap would create 

disruption to the supports and services 

they receive through PCAFC. Extending 

the transition period as proposed in this 

rulemaking would avoid these 

challenges. 

VA proposes a period of 18 months 

after the effective date of this 

rulemaking to allow sufficient time to 

complete reassessments for the legacy 

cohort under the new PCAFC eligibility 

and stipend level criteria. Prior to 

initiating reassessments of PCAFC 

eligibility, VA would need to inform 

PCAFC participants, including the 

legacy cohort, about the changes to 

PCAFC eligibility and stipend level 

criteria that become effective under this 

rulemaking. VA believes 18 months will 

allow adequate time to provide such 

notification and would ensure VA can 

complete these legacy reassessments 

while also processing a potential influx 

of new applications that VA may receive 

following finalization of this 

rulemaking. There are over 14,500 

legacy applicants and legacy 

participants who have not been 

determined eligible for PCAFC under 

the criteria that went into effect on 

October 1, 2020, or who have been 

determined eligible under such criteria 

but at a lower stipend amount, and who 

could most benefit from a reassessment 

under revised criteria. 

For these reasons, VA proposes to 

amend part 71 to extend the transition 

period for the legacy cohort and 

timeline for VA to complete 

reassessments of the legacy cohort to a 

date that is 18 months after the effective 

date of a final rule under this 

rulemaking. 

2. Proposed Changes to 38 CFR 71.15, 

71.20, 71.30, and 71.40 

To effectuate an additional extension 

to the legacy cohort transition period 

and timeline for reassessments, VA 

proposes several amendments to 

§§ 71.15, 71.20, 71.30, and 71.40. 

Among other changes, proposed 

amendments would remove references 

in current regulatory text to the five-year 

period beginning on October 1, 2020, 

and ending on September 30, 2025. VA 

would instead include language that 

reflects a period that begins on October 

1, 2020, and ends on the date that is 18 

months after the effective date of a final 

rule adopting changes to eligibility and 

stipend level criteria for PCAFC. These 

specific proposed changes to the 

regulations are discussed in greater 

detail later in this rulemaking. 

VA solicits comments from the public 

on this proposal. In particular, VA 

requests comments on the following. 

1. Should VA consider a different 

legacy cohort extension period other 

than the proposed 18-month period after 

the effective date of this rulemaking 

which would adopt changes to 

eligibility and stipend level criteria for 

PCAFC? If yes, what time period should 

VA consider and why? 

2. What alternative approach(es) 

should VA consider to reassess the 

legacy cohort and ensure only those 

individuals who meet eligibility criteria 

are participating in PCAFC? 

B. 38 CFR 71.10 Purpose and Scope 

Current § 71.10 sets forth the purpose 

and scope of part 71. Paragraph (b) of 

§ 71.10 explains, among other things, 

that PCAFC and Program of General 

Caregiver Support Services (PGCSS) 

benefits are provided only to those 

individuals residing in a State as that 

term is defined in 38 U.S.C. 101(20). VA 

proposes to remove the language ‘‘as 

that term is defined in 38 U.S.C. 

101(20)’’ from 38 CFR 71.10(b) because 

VA proposes to add a definition for the 

term State in 38 CFR 71.15, as explained 

in the discussion on proposed changes 

to § 71.15. 

This proposed revision is intended to 

provide clarity and reduce the burden 

on the reader by including all 

definitions in the definitions section 

under § 71.15. 

VA proposes no other changes to 

§ 71.10. 

C. 38 CFR 71.15 Definitions 

Section 71.15 contains definitions for 

terms used throughout part 71. VA 

proposes to amend § 71.15 by adding 

definitions for the terms activity of daily 

living or activities of daily living (ADL), 

State, and typically requires; removing 

the terms inability to perform an activity 

of daily living (ADL), need for 

supervision, protection, or instruction, 

and unable to self-sustain in the 

community and their definitions; and 

revising the definitions of 

institutionalization, joint application, 

legacy applicant, legacy participant, 

and serious injury. These proposed 

changes are explained in more detail 

below in alphabetical order of the terms 

being added, removed, or revised. 

1. Activity of Daily Living or Activities 

of Daily Living (ADL) 

In § 71.15, VA proposes to add a 

definition for the term activity of daily 

living or activities of daily living (ADL). 

In the current definition of inability to 

perform an ADL, VA includes the 

following ADL as applying to this term: 

(1) dressing or undressing oneself; (2) 

bathing; (3) grooming oneself in order to 

keep oneself clean and presentable; (4) 

adjusting any special prosthetic or 

orthopedic appliance, that by reason of 

the particular disability, cannot be done 

without assistance (this does not 

include the adjustment of appliances 

that nondisabled persons would be 

unable to adjust without aid, such as 

supports, belts, lacing at the back, etc.); 

(5) toileting or attending to toileting; (6) 

feeding oneself due to loss of 

coordination of upper extremities, 

extreme weakness, inability to swallow, 

or the need for a non-oral means of 

nutrition; and (7) mobility (walking, 

going up stairs, transferring from bed to 

chair, etc.). Since, as discussed further 

below, VA proposes to remove the 

current definition of inability to perform 

an ADL which contains this list of ADL, 

VA proposes to add a standalone 

definition of ADL to § 71.15 that would 

maintain this list of ADL with minor 

changes. This separate definition is not 

intended to be a new definition that 

changes VA’s current implementation 

and use of the term ADL. This proposal 

does not seek to narrow or expand VA’s 

current interpretation of the term ADL 

but is intended to improve clarity for 

purposes of applying and implementing 

the term ADL as it is used throughout 

part 71 and in 38 U.S.C. 1720G. 

VA proposes to maintain the existing 

ADL included in the current definition 

of inability to perform an ADL as these 

are widely recognized in the health care 

context (for example, they are found in 

the Katz Basic ADL Scale (see 76 FR 

26148 (May 5, 2011)) and have been the 

ADL used for the purposes of PCAFC 

since the inception of the program. 

While VA proposes to maintain the list 


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of ADL from the definition of inability 

to perform an ADL, this new proposed 

definition for ADL revises the language 

used to describe several of the ADL as 

is discussed below. VA’s proposed 

changes would not materially change 

the activities included in the definition 

of an ADL or how VA evaluates them. 

In the ADL of dressing and undressing 

oneself, VA proposes to remove the 

word ‘‘oneself’’. Similarly, VA proposes 

to remove the phrase ‘‘oneself in order 

to keep oneself clean and presentable’’ 

from the description of the ADL of 

grooming. VA also proposes to remove 

the parenthetical following the ADL of 

mobility that includes examples (that is, 

walking, going up stairs, transferring 

from bed to chair, etc.). These words 

and phrases are not needed when listing 

the ADL and are commonly understood 

to be included in the definitions of the 

identified ADLs. 

In developing the definition of 

inability to perform an ADL, VA 

included additional clarifying language 

in the descriptions of adjusting any 

special prosthetic or orthopedic 

appliance and feeding oneself, to further 

explain the cause for why an individual 

would be unable to perform these two 

ADLs. In establishing a standalone 

definition of ADL, these additional 

clarifications are not needed and if they 

were to remain may lead to 

misinterpretation of VA’s use of the 

term ADL as it is referenced throughout 

38 CFR part 71. For the ADL of 

adjusting any special prosthetic or 

orthopedic appliance, VA proposes to 

remove the phrase ‘‘that by reason of the 

particular disability, cannot be done 

without assistance’’. For the ADL of 

feeding oneself, VA proposes to remove 

the language ‘‘due to loss of 

coordination of upper extremities, 

extreme weakness, inability to swallow, 

or the need for a non-oral means of 

nutrition’’. In addition, to further 

simplify and clarify this ADL, VA 

proposes to use the more commonly 

used term ‘‘eating’’ in place of feeding 

oneself. 

Before proposing to define ADL in 

this proposed rule, VA conducted a 

search of title 38 of the CFR to identify 

other regulatory definitions of ADL used 

by VA. VA identified several definitions 

of ADL in title 38 of the CFR, including 

in §§ 3.278, 17.62, 17.3210, and 51.2, 

that include descriptive language in 

addition to identifying specific ADL. 

While there are similarities among these 

definitions, the definition of ADL used 

in § 51.2 uses terminology VA believes 

best describes the meaning of ADL for 

purposes of part 71. Section 51.2 defines 

ADLs to mean ‘‘the functions or tasks 

for self-care usually performed in the 

normal course of a day, i.e., mobility, 

bathing, dressing, grooming, toileting, 

transferring, and eating.’’ Among other 

things, this definition is used for 

purposes of determining eligibility of a 

veteran for payment of per diem to a 

State for adult day health care. See 38 

CFR 51.52(d)(1) and (3). 

Under this proposal, the new 

definition of ADL would refer to the 

same ADLs as those currently identified 

in the definition of inability to perform 

an ADL in § 71.15. VA proposes to add 

language that is included in the 

description of ADL in § 51.2 by 

specifying in the proposed new 

definition of ADL that ADL means ‘‘any 

of the following functions or tasks for 

self-care usually performed in the 

normal course of a day’’, which is 

consistent with how VA applies ADL for 

purposes of 38 U.S.C. 1720G and 38 

CFR part 71. VA believes this language 

would be helpful to include in the 

proposed definition of ADL in § 71.15 

because it clarifies that, for purposes of 

part 71, ADL are the broad categories of 

functions and tasks listed and are those 

activities usually performed in the 

normal course of a day. VA recognizes 

that the functions and tasks for self-care 

that are ‘‘usually’’ performed in the 

‘‘normal’’ course of a day depends on 

the unique individual. VA discusses 

this in more detail in the context of 

proposed changes to §§ 71.20(a)(3) and 

71.40(c)(4)(i)(A), which outline how VA 

would apply ADL in the context of 

those sections. Additionally, the 

proposed new text of ‘‘usually 

performed in the normal course of a 

day’’ does not mandate that each 

activity must always be completed daily 

for it to be considered an ADL under 

this definition. Some ADL may be 

performed daily, such as feeding and 

toileting. However, others such as 

bathing may not always be performed 

daily. Such ADL would still be 

considered among those functions or 

tasks for self-care that are usually 

performed in the normal course of a day 

even though an individual may not need 

to perform such ADL daily in order to 

maintain their health and well-being. 

This is consistent with how VA 

interprets and applies ADL currently 

within PCAFC. See 85 FR 46226, at 

46233 (July 31, 2020). 

This proposed definition of ADL (that 

is, functions or tasks for self-care 

usually performed in the normal course 

of a day) would align with other Federal 

definitions for ADL. For example, the 

Centers for Medicare & Medicaid 

Services’ (CMS) regulations for its Home 

and Community-Based Attendant 

Services and Supports State Plan Option 

define ADL to mean basic personal 

everyday activities including, but not 

limited to, tasks such as eating, 

toileting, grooming, dressing, bathing, 

and transferring. See 42 CFR 441.505. 

Additionally, the Department of 

Housing and Urban Development’s 

regulations for its Congregate Housing 

Services Program define ADL to mean, 

in part, an activity regularly necessary 

for personal care. See 24 CFR 700.105. 

VA asserts that the proposed definition 

of ADL in this rulemaking would also 

align with the plain meaning of the term 

activity of daily living as referring to 

activities that ‘‘occur with some 

regularity’’. See Veteran Warriors, Inc. 

v. Sec’y of Veterans Affairs, 29 F.4th 

1320, 1339 (Fed. Cir. 2022) (‘‘By using 

the word daily, Congress required the 

relevant activities to occur with some 

regularity. See also 38 CFR 71.15 

(promulgating [a] list of activities of 

daily living, each of which involves 

regular conduct—like eating or 

bathing).’’). 

Thus, ADL would be defined to mean 

any of the following functions or tasks 

for self-care usually performed in the 

normal course of a day: (1) Dressing or 

undressing; (2) Bathing; (3) Grooming; 

(4) Adjusting any special prosthetic or 

orthopedic appliance (this does not 

include the adjustment of appliances 

that nondisabled persons would be 

unable to adjust without aid, such as 

supports, belts, lacing at the back, etc.); 

(5) Toileting or attending to toileting; (6) 

Eating; or (7) Mobility. 

As explained below, this proposed 

definition of ADL would be applied in 

proposed § 71.20(a)(3)(i) and (iii) for 

purposes of determining whether a 

veteran or servicemember is in need of 

personal care services based on the 

individual typically requiring hands-on 

assistance to complete one or more ADL 

or the individual typically requiring 

regular or extensive instruction or 

supervision to complete one or more 

ADL, and in proposed 

§ 71.40(c)(4)(i)(A)(2) as part of the 

criteria used to determine whether a 

Primary Family Caregiver (as that term 

is defined in § 71.15) qualifies for the 

higher stipend level. VA’s later 

discussions not only provide 

explanation of its application of the 

proposed definition of ADL, but also 

include illustrative examples. 

2. Inability To Perform an ADL 

In § 71.15 VA proposes to remove the 

term inability to perform an ADL and its 

definition. Inability to perform an ADL 

is currently defined to mean a veteran 

or servicemember requires personal care 

services each time he or she completes 

one or more of the following: (1) 

Dressing or undressing oneself; (2) 


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Bathing; (3) Grooming oneself in order 

to keep oneself clean and presentable; 

(4) Adjusting any special prosthetic or 

orthopedic appliance, that by reason of 

the particular disability, cannot be done 

without assistance (this does not 

include the adjustment of appliances 

that nondisabled persons would be 

unable to adjust without aid, such as 

supports, belts, lacing at the back, etc.); 

(5) Toileting or attending to toileting; (6) 

Feeding oneself due to loss of 

coordination of upper extremities, 

extreme weakness, inability to swallow, 

or the need for a non-oral means of 

nutrition; or (7) Mobility (walking, going 

up stairs, transferring from bed to chair, 

etc.). 

The term inability to perform an ADL 

is listed in § 71.20(a)(3)(i) as one of the 

bases for determining PCAFC eligibility 

consistent with 38 U.S.C. 

1720G(a)(2)(C)(i). The term is also 

referenced in the definition of unable to 

self-sustain in the community, which is 

applied in 38 CFR 71.40(c)(4)(i)(A)(2) 

for purposes of determining eligibility of 

a Primary Family Caregiver for the 

higher stipend level. As explained in 

more detail below, VA proposes to 

implement the statutory criterion in 38 

U.S.C. 1720G(a)(2)(C)(i) through 

regulation text in proposed 38 CFR 

71.20(a)(3)(i) and § 71.40(c)(4)(i)(A)(2) 

without referencing the term inability to 

perform an ADL in § 71.15. Those 

proposed amendments would eliminate 

the need for the current definition of 

inability to perform an ADL in § 71.15 

and reduce the potential for confusion. 

Therefore, VA proposes to remove the 

term inability to perform an ADL and its 

definition from § 71.15. 

3. Institutionalization 

In § 71.15, VA proposes to revise the 

current definition of 

institutionalization. This term is used in 

§ 71.45 for purposes of discharge from 

PCAFC and currently refers to being 

institutionalized in a setting outside the 

home residence to include a hospital, 

rehabilitation facility, jail, prison, 

assisted living facility, medical foster 

home, nursing home, or other similar 

setting. Under this proposal, VA would 

remove the language ‘‘assisted living 

facility’’ from this definition because 

residing in an assisted living facility 

should not by itself disqualify an 

eligible veteran or Family Caregiver (as 

those terms are defined in § 71.15) from 

PCAFC. VA would also clarify that 

‘‘other similar settings’’ must be 

determined by VA. 

VA has found that some eligible 

veterans residing in assisted living, or 

other similarly termed settings such as 

senior living, choose to utilize Family 

Caregivers under PCAFC for the 

provision of their personal care services 

in lieu of other paid services available 

from the assisted living facility or other 

service providers. Some assisted living 

facilities, and similarly termed 

environments, may offer room and 

board with limited additional support as 

part of the cost of residing in such 

facility. Other assisted living facilities 

may offer a menu of add-on services to 

include assistance with the personal 

care services that may have been 

provided by a Family Caregiver through 

PCAFC. However, in lieu of paying for 

such personal care services through the 

assisted living facility or other personal 

care service provider, an eligible veteran 

may prefer to receive personal care 

services from a Family Caregiver under 

PCAFC. In such cases, the assisted 

living facility would be considered the 

eligible veteran’s home for purposes of 

§ 71.20(a)(6) (conditioning PCAFC 

eligibility on the individual receiving 

care at home). 

Additionally, a Family Caregiver 

residing in an assisted living facility 

should not necessarily be precluded 

from being approved and designated as 

a Family Caregiver in PCAFC simply 

because they reside in an assisted living 

facility. Such individual, for example, 

may live in the assisted living facility 

with the eligible veteran and be able to 

provide the personal care services the 

eligible veteran requires. The ability of 

the Family Caregiver to perform 

required personal care services is based 

upon the Family Caregiver’s individual 

abilities, rather than the environment in 

which they reside. 

Thus, to ensure eligible veterans 

and/or Family Caregivers who reside in 

assisted living facilities would not be 

excluded from PCAFC based only on the 

fact that they reside in an assisted living 

facility, VA proposes to revise the term 

institutionalization to exclude ‘‘assisted 

living facility,’’ such that 

institutionalization would instead mean 

being institutionalized in a setting 

outside the home residence to include a 

hospital, rehabilitation facility, jail, 

prison, medical foster home, nursing 

home, or other similar setting as 

determined by VA. However, this 

change would not nullify any of the 

eligibility criteria otherwise applicable 

to the eligible veteran and Family 

Caregiver. For example, in instances 

when personal care services that had 

been provided by the Family Caregiver 

are instead provided to the eligible 

veteran by or through the assisted living 

facility, the veteran would no longer be 

eligible for PCAFC pursuant to 

§ 71.20(a)(5) (requiring that personal 

care services that would be provided by 

the Family Caregiver will not be 

simultaneously and regularly provided 

by or through another individual or 

entity). In such instances, the Family 

Caregiver’s designation would be 

revoked for noncompliance pursuant to 

§ 71.45(a)(1)(ii)(A) (that is, because the 

eligible veteran would not meet the 

requirements of § 71.20(a)(5)) when the 

personal care services that would be 

provided by the Family Caregiver to the 

eligible veteran are the same personal 

care services being provided by or 

through the assisted living facility to the 

eligible veteran, unless a different basis 

of revocation or discharge under § 71.45 

applies. 

For these reasons, VA proposes to 

revise the definition of 

institutionalization so as not to exclude 

from PCAFC eligible veterans and/or 

Family Caregivers who may be living at 

an assisted living facility, provided that 

the eligible veteran and Family 

Caregiver otherwise qualify for PCAFC. 

The eligibility criteria in § 71.20(a)(5) 

and (6), among other requirements, 

would help to ensure that the eligible 

veteran and Family Caregiver continue 

participating in PCAFC only when 

otherwise eligible to do so. 

The definition of institutionalization 

also references ‘‘other similar setting’’. 

VA proposes to add the phrase ‘‘as 

determined by VA’’ after ‘‘other similar 

setting’’ to clarify that what is 

considered a ‘‘similar’’ setting is a VA 

determination. This is consistent with 

current practice. VA also proposes to 

replace the phrase ‘‘refers to’’ with the 

word ‘‘means’’ within the definition of 

institutionalization. This is a nonsubstantive edit to align with the 

formatting of other definitions found 

within § 71.15. 

4. Joint Application 

In § 71.15, VA proposes to revise the 

current definition of joint application. 

The term joint application is used in the 

definitions of legacy applicant and 

legacy participant, throughout 

§ 71.25(a), in § 71.25(f), in § 71.40(d), 

and in § 71.45(b)(4)(iii). The term joint 

application is currently defined as an 

application that has all fields within the 

application completed, including 

signature and date by all applicants, 

with the following exceptions: social 

security number or tax identification 

number, middle name, sex, email, 

alternate telephone number, and name 

of facility where the veteran last 

received medical treatment, or any other 

field specifically indicated as optional. 

VA proposed this definition as part of 

a March 6, 2020 rulemaking proposal. 

See 85 FR 13356, at 13362 (March 6, 

2020) (hereinafter the March 6, 2020 


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Proposed Rule). VA explained in that 

rulemaking that an application that does 

not have all the mandatory sections 

completed would be considered 

incomplete, and VA would not be able 

to begin the application review process 

because the required sections are 

necessary for VA to begin that process. 

Id. VA further explained that failure to 

provide all the required information had 

led to delays as VA had to take steps to 

obtain the missing information. Id. VA 

received one public comment in 

response to its proposed definition of 

joint application. See 85 FR 46237 (July 

31, 2020). The commenter suggested, in 

part, that delays could still result as VA 

would still need to inform applicants 

that their applications were incomplete; 

however, VA made no changes and 

adopted the definition without change. 

Id. at 46237–46238. 

Since implementing this definition of 

joint application, VA continues to 

receive applications that do not have all 

the required fields completed. VA has 

also experienced challenges with timely 

identification of missing required 

information which has led to delays in 

providing notice to applicants about 

required information. Additionally, 

while certain minimum information is 

needed for VA to begin reviewing and 

evaluating applicants’ eligibility for 

PCAFC (for example, the name of the 

veteran or servicemember and each 

Family Caregiver applicant), some 

required information (for example, date 

of birth or zip code), can be obtained in 

the course of evaluating applicants’ 

PCAFC eligibility. 

Instead of requiring specific 

information be included in the joint 

application in regulation, VA proposes 

to define the term joint application to 

mean an application for the Program of 

Comprehensive Assistance for Family 

Caregivers in such form and manner as 

the Secretary of Veterans Affairs 

considers appropriate. This proposed 

change would be consistent with the 

statutory text at 38 U.S.C. 1720G(a)(4), 

which requires that PCAFC applicants 

‘‘jointly submit to the Secretary an 

application [for PCAFC] in such form 

and in such manner as the Secretary 

considers appropriate.’’ This proposed 

change to the definition of joint 

application would allow VA to begin 

evaluating joint applications so long as 

they contain the minimum information 

needed for VA to begin such review and 

evaluation of the applicants’ eligibility 

for PCAFC. This would allow efficient 

and timely evaluation of joint 

applications and avoid subsequent 

delays in rendering decisions. In many 

cases, if certain information is missing 

from the joint application, it may be 

gathered during VA’s evaluations rather 

than serving as a precursor to such 

evaluations being initiated. 

Furthermore, this proposed definition 

would permit the Secretary to make 

changes to the application form, as 

needed, to ensure that the appropriate 

information is requested and collected 

from PCAFC applicants in the joint 

application. 

VA would continue to require the use 

of VA Form 10–10CG as the joint 

application. However, to help alleviate 

challenges identified above, if this 

proposal is adopted, VA would update 

the form to ensure that it does not 

require completion of fields that are not 

necessary for VA to begin reviewing and 

evaluating applicants’ eligibility for 

PCAFC. 

5. Legacy Applicant and Legacy 

Participant 

In 38 CFR 71.15, VA proposes to 

revise the definitions of legacy 

applicant and legacy participant. These 

terms are currently used throughout part 

71 to describe members of the legacy 

cohort. Legacy applicant is currently 

defined to mean a veteran or 

servicemember who submits a joint 

application for PCAFC that is received 

by VA before October 1, 2020 and for 

whom a Family Caregiver(s) is approved 

and designated on or after October 1, 

2020 so long as the Primary Family 

Caregiver approved and designated for 

the veteran or servicemember on or after 

October 1, 2020 pursuant to such joint 

application (as applicable) continues to 

be approved and designated as such. 

Legacy participant is defined as an 

eligible veteran whose Family 

Caregiver(s) was approved and 

designated by VA under part 71 as of 

the day before October 1, 2020 so long 

as the Primary Family Caregiver 

approved and designated for the eligible 

veteran as of the day before October 1, 

2020 (as applicable) continues to be 

approved and designated as such. For 

both legacy applicants and legacy 

participants, the definition also states 

that if a new joint application is 

received by VA on or after October 1, 

2020 that results in approval and 

designation of the same or a new 

Primary Family Caregiver, the veteran or 

servicemember would no longer be 

considered a legacy applicant or legacy 

participant, as applicable. 

VA proposes to revise the definitions 

of legacy applicant and legacy 

participant to specify that such 

designation would be a temporary 

designation. These designations identify 

individuals who would be subject to the 

transition period and related 

requirements VA established for the 

legacy cohort through 2020 rulemaking 

and that VA extended under the First 

PCAFC Extension for Legacy Cohort and 

the Second PCAFC Extension for Legacy 

Cohort. See 85 FR 13362, 86 FR 52614, 

and 87 FR 57602. VA proposes to state 

in regulation that following expiration 

of the transition period for the legacy 

cohort, which is proposed to conclude 

18 months after the effective date of a 

final rule that implements this 

rulemaking, a veteran or servicemember 

will no longer be considered a legacy 

applicant or legacy participant. VA 

believes that inclusion of this language 

would help clarify that following the 

conclusion of the transition period for 

the legacy cohort, all individuals 

applying for and participating in PCAFC 

will be subject to the same set of criteria 

and requirements. 

VA proposes to add a sentence at the 

end of the definitions for legacy 

applicant and legacy participant, 

which, as proposed, would state that 

effective [18 months after EFFECTIVE 

DATE OF FINAL RULE], a veteran or 

servicemember is no longer considered 

a legacy applicant or legacy participant, 

respectively. 

6. Need for Supervision, Protection, or 

Instruction 

In 38 CFR 71.15, VA proposes to 

remove the term need for supervision, 

protection, or instruction and its 

definition. The term need for 

supervision, protection, or instruction is 

listed as one of the bases for 

determining eligibility under 

§ 71.20(a)(3) and is also referenced in 

the definition of unable to self-sustain 

in the community, which is applied in 

§ 71.40(c)(4)(i)(A)(2) for purposes of 

determining the amount of the monthly 

stipend for which the Primary Family 

Caregiver is eligible. The term need for 

supervision, protection, or instruction is 

currently defined to mean an individual 

has a functional impairment that 

directly impacts the individual’s ability 

to maintain his or her personal safety on 

a daily basis. This term and its 

definition were intended to implement, 

in a combined manner, two of the 

statutory bases upon which a veteran or 

servicemember can be determined to be 

in need of personal care services— 

specifically, a need for supervision or 

protection based on symptoms or 

residuals of neurological or other 

impairment or injury, and a need for 

regular or extensive instruction or 

supervision without which the ability of 

the veteran to function in daily life 

would be seriously impaired. 38 U.S.C. 

1720G(a)(2)(C)(ii) and (iii). 

However, as VA explained in its 

Interim Final Rule (IFR) dated 


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September 21, 2022, on March 25, 2022, 

the U.S. Court of Appeals for the 

Federal Circuit issued a decision in 

Veteran Warriors, Inc. v. Sec’y of 

Veterans Affairs, 29 F.4th 1320 (Fed. 

Cir. 2022) that invalidated VA’s 

definition of need for supervision, 

protection, or instruction in 38 CFR 

71.15. See 87 FR 57602–57603 

(September 21, 2022). The court 

determined that the definition was 

inconsistent with the statutory language 

in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii). 

Veteran Warriors at 1342–43. 

Specifically, the court held that VA’s 

decision to create a single frequency 

requirement for ‘‘supervision’’ under 

clauses (ii) and (iii) of section 

1720G(a)(2)(C) was inconsistent with 

the statutory language. Id. at 1342. The 

court also found that clauses (ii) and 

(iii) of section 1720G(a)(2)(C) did not 

restrict eligibility based on ‘‘personal 

safety’’ in all cases, such that the 

‘‘personal safety’’ requirement in VA’s 

definition was inconsistent with the 

statutory text. Id. at 1342–43. As a result 

of this ruling, VA has applied clauses 

(ii) and (iii) of section 1720G(a)(2)(C) in 

place of the regulatory term need for 

supervision, protection, or instruction 

and its definition in 38 CFR 71.15 when 

making determinations under PCAFC 

regulations that became effective on 

October 1, 2020. Thus, where the term 

need for supervision, protection, or 

instruction is referenced, VA applies the 

statutory language in 38 U.S.C. 

1720G(a)(2)(C)(ii) and (iii) instead. 

As explained below, at this time, VA 

is not proposing a new definition of 

need for supervision, protection, or 

instruction for purposes of interpreting 

clauses (ii) and (iii) of 38 U.S.C. 

1720G(a)(2)(C). Instead, VA’s proposed 

interpretation of those clauses would be 

addressed in proposed 38 CFR 

71.20(a)(3)(ii) and (iii) for purposes of 

determining PCAFC eligibility and in 

proposed § 71.40(c)(4)(i)(A)(2) for 

purposes of determining eligibility for 

the higher stipend level. Those 

amendments, if adopted, would 

eliminate the need for a new definition 

of need for supervision, protection, or 

instruction in § 71.15. 

For these reasons, VA proposes to 

remove the term need for supervision, 

protection, or instruction and its 

definition from § 71.15. 

7. Unable to Self-Sustain in the 

Community 

In § 71.15, VA proposes to remove the 

term unable to self-sustain in the 

community and its definition. Unable to 

self-sustain in the community currently 

is defined to mean that an eligible 

veteran: (1) requires personal care 

services each time he or she completes 

three or more of the seven activities of 

daily living (ADL) listed in the 

definition of an inability to perform an 

activity of daily living in § 71.15, and is 

fully dependent on a caregiver to 

complete such ADLs; or (2) has a need 

for supervision, protection, or 

instruction on a continuous basis. This 

term and its definition are used for 

purposes of determining eligibility for 

the higher stipend level under 

§ 71.40(c)(4)(i)(A)(2). This term and its 

definition are also used in § 71.30, as 

reassessments under that section 

include consideration of whether the 

eligible veteran is unable to self-sustain 

in the community for purposes of the 

monthly stipend level determination 

under § 71.40(c)(4)(i)(A). 

As explained below, VA proposes to 

revise § 71.40(c)(4)(i)(A)(2), which 

currently explains that if VA determines 

that the eligible veteran is unable to selfsustain in the community, the Primary 

Family Caregiver’s monthly stipend is 

calculated by multiplying the monthly 

stipend rate by 1.00. In proposed 

§ 71.40(c)(4)(i)(A)(2), VA would list the 

criteria for the higher stipend level 

without referencing the term unable to 

self-sustain in the community. 

Consistent with that change, VA would 

also remove the term unable to selfsustain in the community from § 71.30, 

as discussed below. As VA would 

discontinue use of the term unable to 

self-sustain in the community and its 

definition in part 71, VA proposes to 

remove them from § 71.15. 

8. Serious Injury 

In § 71.15, VA proposes to revise the 

definition of serious injury. The current 

definition in § 71.15 states that serious 

injury means any service-connected 

disability that: (1) is rated at 70 percent 

or more by VA; or (2) is combined with 

any other service-connected disability 

or disabilities, and a combined rating of 

70 percent or more is assigned by VA. 

This definition is applied by VA when 

determining whether an individual 

meets the eligibility criteria in 

§ 71.20(a)(2), which requires the 

individual to have a serious injury 

incurred or aggravated in the line of 

duty to qualify for PCAFC. 

VA proposes to revise the definition 

of serious injury in § 71.15 to include a 

total disability rating for compensation 

based on individual unemployability 

(IU) assigned by VA. IU ratings allow 

VA to compensate certain veterans at 

the 100 percent disability rate even 

though their service-connected 

disability or disabilities are not rated as 

100 percent disabling by reference to 

specific rating schedule criteria. Under 

§ 4.16(a), total disability ratings may be 

assigned when a veteran’s schedular 

rating is less than total (which is to say, 

less than 100 percent) but where the 

veteran is unable to secure or follow a 

substantially gainful occupation due to 

service-connected disabilities. In other 

words, even though the veteran may not 

meet the requirements for a total (or 100 

percent) disability rating by reference to 

the VA disability rating schedule 

criteria, the veteran may be 

compensated as if they were 100 

percent disabled if their serviceconnected disability or the combination 

of their service-connected disabilities 

prevents them from engaging in 

substantial gainful employment. 

The requirements for IU include that 

a veteran either (1) has one serviceconnected disability rated at least 60 

percent disabling, or (2) has two or more 

service-connected disabilities with at 

least one rated at least 40 percent 

disabling and a combined rating of at 

least 70 percent. See § 4.16(a). VA also 

allows for extra-schedular consideration 

for an IU rating in cases of veterans who 

are unemployable by reason of serviceconnected disabilities, but who fail to 

meet these percentage standards. See 

§ 4.16(b). 

In VA’s July 31, 2020 Final Rule, VA 

revised the definition of serious injury. 

85 FR 46245–46251 (July 31, 2020). In 

promulgating this definition, VA 

declined to adopt a recommendation 

from a commenter who recommended 

that VA consider including in the 

definition of serious injury serviceconnected veterans who are in receipt of 

an IU rating. Id. at 46249–46250. IU may 

encompass veterans with serviceconnected disabilities rated less than 70 

percent, and VA did not believe it 

would be appropriate to use IU as a 

substitute for having a single or 

combined 70 percent rating for the 

purposes of PCAFC. Id. at 46250. VA 

explained that not all veterans and 

servicemembers applying for or 

participating in PCAFC would have 

been evaluated by VA for such rating, 

and if VA were to create an exception 

in the definition of serious injury for 

individuals with an IU rating, VA would 

also need to consider whether other 

exceptions should also satisfy the 

definition. Id. Additionally, VA 

referenced that IU had proven to be a 

very difficult concept to apply 

consistently in the context of disability 

compensation and had been the source 

of considerable dissatisfaction with VA 

adjudications and of litigation. Id. 

Observing that importing this standard 

could introduce potential inconsistency 

into PCAFC, VA declined to make any 

changes to incorporate IU into the 


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2An IU rating under 38 CFR 4.16 would not 

ordinarily be awarded as a proposed rating to a 

servicemember undergoing medical discharge 

through the Integrated Disability Evaluation 

System. However, a servicemember undergoing 

medical discharge would still be able to meet the 

definition of serious injury for purposes of 

satisfying the requirement in § 71.20(a)(2), based on 

a proposed service-connected disability rating of 70 

percent or higher. See 85 FR 13356, at 13369 

(March 6, 2020) (explaining that ‘‘[f]or 

servicemembers undergoing medical discharge . . . 

who apply for PCAFC, we would accept their 

proposed VA rating of disability when determining 

whether the servicemember has a serious injury’’). 

Additionally, VA notes that servicemembers 

undergoing medical discharge can be considered for 

an IU rating upon discharge. 

definition of serious injury in VA’s July 

31, 2020 Final Rule. Id. 

Following VA’s implementation of the 

revised definition of serious injury, 

veterans and other stakeholders 

continued to raise concerns regarding 

the exclusion of IU from the definition 

of serious injury. VA therefore took 

another look at this topic and 

reexamined the exclusion of IU. Upon 

further review and reconsideration, VA 

now proposes to include a total 

disability rating for compensation based 

on IU within the definition of serious 

injury for purposes of PCAFC, regardless 

of the schedular disability rating 

assigned as VA has concluded the 

advantages of including IU in the 

definition of serious injury outweigh the 

concerns VA identified with doing so in 

VA’s 2020 final rule. 

VA’s Schedule for Rating Disabilities 

(VASRD) percentage ratings represent 

the average impairment in earning 

capacity resulting from serviceconnected disabilities. See § 4.1. When 

the VASRD does not adequately account 

for the severity of the veteran’s 

disability and its impact on the 

veteran’s employability, VA may assign 

a total disability rating by establishing 

IU when the requirements under § 4.16 

are met. An IU determination reflects 

VA’s assessment that even though the 

veteran has a less than total schedular 

rating, their service-connected 

disability, or the combination of their 

service-connected disabilities, precludes 

them from engaging in substantial 

gainful employment and entitles them 

to payment at the 100 percent disability 

rate. See § 4.16. VA’s assignment of an 

IU rating establishes that the veteran’s 

service-connected disability or 

disabilities renders them unemployable 

and compensable as if they were 100 

percent disabled. Therefore, individuals 

with IU assigned by VA have the same 

level of impairment in earning capacity 

as that of an individual with a schedular 

100 percent disability rating, regardless 

of whether the individual’s disability 

picture warrants a 100-percent rating 

under the rating schedule(s) for the 

service-connected disability or 

disabilities. 

In proposing this change, VA also 

reexamined its prior concerns with 

including IU in the definition of serious 

injury, and VA no longer believes those 

concerns necessitate the same approach. 

One such concern was the fact that not 

all veterans and servicemembers 

applying for or participating in PCAFC 

will have been evaluated by VA for IU. 

See 85 FR 46250 (July 31, 2020). While 

this is still true, VA notes that any 

individual who does not currently have 

a total disability rating, including those 

that do not meet the definition of 

serious injury because their serviceconnected disability rating is less than 

70 percent, can file a claim for an 

increased rating, which may include a 

request for IU if they believe such a 

rating is warranted.2 There are existing 

processes for individuals to request 

consideration for IU, and adding IU to 

the definition of serious injury as 

proposed would provide an additional 

opportunity for veterans to satisfy the 

serious injury requirement in 

§ 71.20(a)(2). 

VA also considered that IU was a 

difficult concept to apply consistently 

in the context of disability 

compensation. Id. While VA knows that 

IU may be challenging to apply 

consistently and has been the source of 

litigation, it does not want to exclude 

veterans with IU ratings from meeting 

the definition of serious injury based on 

these challenges and prevent them from 

participating in PCAFC when all other 

eligibility requirements are met. 

Additionally, VA has examined 

whether other criteria should meet the 

definition of serious injury (based on 

disability rating criteria or otherwise). 

Based on this review, the only criterion 

VA identified as being equivalent to 

having a single or combined 70 percent 

service-connected rating or higher, is a 

VA rating of IU. However, as indicated 

below, VA welcomes input from the 

public on any other VA ratings or other 

criteria that VA should consider as 

potentially meeting the definition of 

serious injury for purposes of PCAFC. 

Accordingly, VA believes its earlier 

concerns about including IU in the 

definition of serious injury are now 

outweighed by the advantages that 

would result for individuals with an IU 

rating who satisfy all other PCAFC 

eligibility criteria. Thus, when VA 

determines that a veteran’s serviceconnected disability or disabilities are 

so severe as to render them unable to 

secure or follow a substantially gainful 

occupation and grants the veteran 

entitlement to IU, VA believes such 

disability, or disabilities, should be 

considered a serious injury for purposes 

of PCAFC. VA believes this is true 

regardless of the basis for VA’s IU rating 

under § 4.16(a) or (b). Further, VA 

reached this conclusion, in part, based 

on continued feedback from VSOs and 

other stakeholders. VA believes for the 

reasons set forth above, the proposed 

inclusion of IU in the definition of 

serious injury is a reasonable expansion 

of the definition for purposes of PCAFC. 

Given the above, VA proposes to 

revise the definition of serious injury in 

§ 71.15 to include a total disability 

rating for compensation based on IU 

assigned by VA. VA proposes to revise 

the definition of serious injury by 

reorganizing the introductory text and 

paragraphs (1) and (2), including the 

current criteria from paragraphs (1) and 

(2) in revised paragraphs (1) and (2), and 

adding this new basis in a new 

paragraph (3). This change, if adopted, 

would allow individuals who do not 

currently have a single or combined 70 

percent disability rating to meet the 

definition of serious injury if they have 

an IU rating assigned by VA. As 

proposed, the definition of serious 

injury would state serious injury means 

any of the following as assigned by VA: 

(1) a service-connected disability rated 

at 70 percent or more; (2) any serviceconnected disabilities that result in a 

combined rating of 70 percent or more; 

or (3) any service-connected disability 

or disabilities that result in a total 

disability rating for compensation based 

on individual unemployability. 

9. State 

In § 71.15 VA proposes to add a 

definition for the term State. As 

explained above, current § 71.10(b) 

explains, among other things, that 

PCAFC and PGCSS benefits are 

provided only to those individuals 

residing in a State as that term is 

defined in 38 U.S.C. 101(20). Currently, 

§ 71.10(b) is the only instance in which 

part 71 refers to the term State and its 

definition in 38 U.S.C. 101(20). 

However, this rulemaking proposal, if 

adopted, would add the term State in 

other sections of part 71 as well. 

Specifically, this term would be used in 

a new basis for revocation under 

proposed revisions to 38 CFR 71.45 and 

regarding State-declared emergencies in 

proposed § 71.55, as discussed in more 

detail below. Thus, as the term is 

proposed to be used in multiple sections 

in part 71, it would be appropriate to 

define it in § 71.15. VA’s proposed 

definition would be consistent with 

current § 71.10(b), as VA would define 

State in proposed § 71.15 to have the 

meaning given to that term in 38 U.S.C. 


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3Cambridge University Press & Assessment, 2023, 

https://dictionary.cambridge.org/dictionary/ 

english/typically (last visited Feb. 8, 2024) (also 

defining ‘‘typically’’ as ‘‘used when you are giving 

an average or usual example of a particular thing’’ 

and ‘‘in a way that shows the characteristics of a 

particular kind of person or thing; or gives a usual 

example of a particular thing’’). 

4The Britannica Dictionary, 2023, https://

www.britannica.com/dictionary/typically (last 

visited Feb. 8, 2024). 

101(20). In 38 U.S.C. 101(20), State is 

defined to mean ‘‘each of the several 

States, Territories, and possessions of 

the United States, the District of 

Columbia, and the Commonwealth of 

Puerto Rico. For the purpose of section 

2303 and chapters 34 and 35 of [title 

38], such term also includes the Canal 

Zone.’’ 

As this is the definition VA currently 

uses for this term in 38 CFR 71.10(b), 

this change would have no substantive 

impact on that section. However, to 

provide clarity and consistency 

throughout part 71, VA proposes to 

include a new definition for the term 

State in § 71.15 so that it is easier to 

locate, understand, and reference the 

definition of this term. 

10. Typically Requires 

In § 71.15, VA proposes to add a 

definition for the term typically 

requires. VA proposes to use the term 

typically requires in the bases for 

PCAFC eligibility in proposed 

§ 71.20(a)(3)(i) and (iii) and the monthly 

stipend payment criteria in proposed 

§ 71.40(c)(4)(i)(A)(2)(i). As this term is 

proposed to be used in multiple sections 

of part 71, and VA intends for this term 

to have the same meaning when 

referenced throughout part 71, VA 

proposes to add a definition for 

typically requires in § 71.15. 

VA proposes to add a definition 

stating that typically requires means a 

clinical determination which refers to 

that which is generally necessary. 

Cambridge Dictionary defines 

‘‘typically’’ as ‘‘in a way that shows all 

the characteristics that you would 

expect from the stated person, thing, or 

group.’’ 3 The Britannica Dictionary 

defines ‘‘typically’’ as ‘‘generally or 

normally—used to say what normally 

happens’’ and ‘‘in the usual way—used 

to describe what is normal or expected 

of a certain place, person, situation, 

etc.’’ 4 VA’s use of ‘‘typically’’ denotes 

frequency for purposes of proposed 

§ 71.20(a)(3)(i) and (iii) and for proposed 

§ 71.40(c)(4)(i)(A)(2)(i) and would be 

consistent with these dictionary 

definitions. As frequency occurs on a 

continuum, to further demonstrate 

where on the continuum VA’s proposed 

term typically requires would fall in 

comparison to other terms of frequency, 

VA provides the below graphic. See also 

the visual aid published at 

www.regulations.gov under RIN 2900– 

AR96. 

Figure 1—Typically Requires 

Additionally, like the definition of in 

the best interest in § 71.15, VA’s 

proposed definition of typically requires 

would make clear that it is a clinical 

determination. This definition would 

allow VA to consider each individual’s 

unique functional needs, abilities, and 

usual routines when making the clinical 

determination of whether the criteria in 

proposed § 71.20(a)(3)(i) and (iii) and 

proposed § 71.40(c)(4)(i)(A)(2)(i) are 

met. Additional discussion on how VA 

proposes to use the term typically 

requires is found in VA’s discussion on 

proposed changes to §§ 71.20 and 71.40 

below. 

VA solicits comments from the public 

on all aspects of this proposed rule. In 

particular, VA asks the following 

questions on specific aspects of this 

proposal. 

1. Please identify any similarly 

situated veterans or servicemembers 

who may not have an IU rating but 

nonetheless should be found to have a 

serious injury under the definition of 

that term in § 71.15 based on other VA 

ratings or other criteria. 

2. VA has proposed a definition for 

the term typically requires that, in part, 

refers to that which is generally 

necessary. What other phrasing should 

VA consider as an alternative to 

generally necessary and why? Are there 

other criteria with regard to frequency 

that should be considered in defining 

typically requires? 

3. Is there an alternative term other 

than typically requires that would be 

better defined to mean that which is 

generally necessary? For example, 

would the phrasing usually, most of the 

time, routinely, or ordinarily requires be 

clearer than the phrasing typically 

requires? 

4. What factors should VA consider 

when determining what is generally 

necessary? 

D. 38 CFR 71.20 Eligible Veterans and 

Servicemembers 

Section 71.20(a) sets forth seven 

criteria for veterans and servicemembers 

to be determined eligible for a Primary 

Family Caregiver or Secondary Family 

Caregiver under part 71. In this 

rulemaking proposal, VA proposes to 

make substantive revisions to only two 

of the current criteria in § 71.20(a): (1) 

the individual is in need of personal 

care services for a minimum of six 

continuous months based on an 

inability to perform an activity of daily 

living, or a need for supervision, 

protection, or instruction (see 

§ 71.20(a)(3)); and (2) the individual 

receives ongoing care from a primary 

care team or will do so if VA designates 

a Family Caregiver (see § 71.20(a)(7)). 

VA also proposes to make technical 

edits to § 71.20(a), as described in more 

detail below. VA’s discussions of 

proposed changes include illustrative 

examples of how a veteran or 

servicemember could meet the two 

referenced criteria; however, this does 

not guarantee eligibility of the veteran 

or servicemember or caregiver applicant 

for participation in PCAFC, particularly 

as all the other criteria in § 71.20(a) 

would also have to be met, in addition 

to meeting other requirements in part 

71. 


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1. Section 71.20(a)(3)—Bases Upon 

Which the Individual May Be 

Determined To Be in Need of Personal 

Care Services for a Minimum of Six 

Continuous Months 

Current § 71.20(a)(3) requires that the 

individual be in need of personal care 

services for a minimum of six 

continuous months based on (i) an 

inability to perform an activity of daily 

living; or (ii) a need for supervision, 

protection, or instruction. VA 

established these criteria based on its 

interpretation of 38 U.S.C. 

1720G(a)(2)(C)(i) through (iii). 85 FR 

13371–13372 (March 6, 2020). However, 

VA’s use of the term need for 

supervision, protection, or instruction, 

including its definition, was invalidated 

by the court’s decision in Veteran 

Warriors, as explained in the above 

discussion on the proposed removal of 

such term and definition from 38 CFR 

71.15. As such, and to make other 

changes to better clarify the three 

statutory bases upon which an 

individual may be determined to be in 

need of personal care services in 38 

U.S.C. 1720G(a)(2)(C)(i) through (iii), 

VA proposes to amend 38 CFR 

71.20(a)(3) by revising the language in 

paragraphs (i) and (ii) and adding a new 

paragraph (iii). 

As proposed, § 71.20(a)(3) would state 

the individual is in need of personal 

care services for a minimum of six 

continuous months based on any one of 

the following: (i) the individual 

typically requires hands-on assistance to 

complete one or more ADL; (ii) the 

individual has a frequent need for 

supervision or protection based on 

symptoms or residuals of neurological 

or other impairment or injury; or (iii) 

the individual typically requires regular 

or extensive instruction or supervision 

to complete one or more ADL. 

a. Proposed § 71.20(a)(3)(i)—The 

Individual Typically Requires HandsOn Assistance To Complete One or 

More ADL 

As explained in the discussion of the 

definition of the term inability to 

perform an ADL, VA proposes to 

remove such term and its definition 

from § 71.15 and address the statutory 

basis under 38 U.S.C. 1720G(a)(2)(C)(i) 

(that is, the individual is in need of 

personal care services because of an 

inability to perform one or more ADL) 

in proposed 38 CFR 71.20(a)(3)(i) for 

purposes of determining a veteran’s or 

servicemember’s eligibility for PCAFC. 

Therefore, VA proposes to revise 

§ 71.20(a)(3)(i) to remove the current 

language of an inability to perform an 

activity of daily living and replace it 

with the individual typically requires 

hands-on assistance to complete one or 

more ADL. An individual who typically 

requires hands-on assistance to 

complete one or more ADL would have 

an inability to perform such ADL 

without such assistance, which would 

be consistent with the criterion in 38 

U.S.C. 1720G(a)(2)(C)(i). This would 

include individuals who require 

assistance with some, or all of the tasks 

associated with an ADL, thus permitting 

individuals who are unable to 

contribute to the completion of the ADL 

to meet this criterion. VA explains 

below how this proposed change would 

clarify and differ from the current 

eligibility criterion in § 71.20(a)(3)(i). 

i. Hands-On Assistance 

First, in determining whether an 

individual is in need of personal care 

services under proposed § 71.20(a)(3)(i), 

VA would consider whether the 

individual typically requires ‘‘handson’’ assistance to complete one or more 

ADL. VA would require ‘‘hands-on’’ 

assistance for purposes of proposed 

paragraph (i), as this would be 

consistent with how VA has interpreted 

and applied the term inability to 

perform an ADL, (and remains 

consistent with 38 U.S.C. 

1720G(a)(2)(C)(i)), for purposes of 

determining whether a veteran or 

servicemember is in need of personal 

care services on such basis. See 85 FR 

46229, 46233, 46235 (July 31, 2020). In 

VA’s July 31, 2020 Final Rule, VA noted 

that if an eligible veteran is eligible for 

PCAFC because they meet the definition 

of inability to perform an ADL, the inperson personal care services required 

to perform an ADL would be hands-on 

care. Id. at 46229. This is how VA has 

implemented this requirement since 

that final rule took effect on October 1, 

2020. Individuals who do not meet the 

‘‘hands-on’’ requirement may still meet 

the requirement for being in need of 

personal care services under current 38 

CFR 71.20(a)(3) based on the statutory 

text in 38 U.S.C. 1720G(a)(2)(C)(ii) or 

(iii)—even though their needs are 

related to ADLs. See 85 FR 46235 (July 

31, 2020). To provide further clarity and 

remove uncertainty concerning the type 

of assistance an individual must 

typically require in order to meet the 

criterion in proposed 38 CFR 

71.20(a)(3)(i), VA proposes to include 

the words ‘‘hands-on’’. 

By using the phrase ‘‘assistance to 

complete’’ in proposed § 71.20(a)(3)(i), 

in reference to situations in which 

hands-on assistance is typically 

required, it is not VA’s intent to require 

any minimum amount of contribution 

by the veteran or servicemember in 

completing the ADL. If a caregiver 

performs an ADL entirely on behalf of 

the veteran or servicemember (such as 

dressing and undressing or bathing a 

veteran or servicemember who is unable 

to contribute to the completion of such 

ADL because of a physical or cognitive 

disability), the veteran or 

servicemember could still meet this 

proposed criterion. 

In addition to being consistent with 

current practice, including the words 

‘‘hands-on’’ in proposed § 71.20(a)(3)(i) 

would also make clear a distinction 

between proposed § 71.20(a)(3)(i), and 

proposed § 71.20(a)(3)(ii) and (iii), as 

proposed paragraph (iii) would set forth 

an additional explicit basis upon which 

an individual can be determined to be 

in need of personal care services related 

to an ADL, even without a need for 

‘‘hands-on’’ assistance with the 

performance of one or more ADL. 

ii. Removal of ‘‘Each Time’’ 

Requirement 

Next, VA proposes to change the 

requirement that an individual must 

require personal care services ‘‘each 

time’’ the veteran or servicemember 

completes one or more ADL to be 

determined eligible for PCAFC under 

the basis in § 71.20(a)(3)(i). To do this, 

VA proposes to modify the current 

language in § 71.20(a)(3)(i) to remove 

reference to the term inability to 

perform an ADL. In current § 71.15, the 

definition of inability to perform an 

ADL means a veteran or servicemember 

requires personal care services ‘‘each 

time’’ they complete one or more ADL. 

Since VA proposes to remove the term 

inability to perform an ADL and its 

definition from § 71.15 and instead 

interpret the statutory requirement in 38 

U.S.C. 1720G(a)(2)(C)(i) in proposed 38 

CFR 71.20(a)(3)(i), VA believes it is 

important to acknowledge that VA’s 

proposed revisions to § 71.20(a)(3)(i) 

would not retain the ‘‘each time’’ 

requirement for purposes of determining 

whether an individual typically requires 

hands-on assistance to complete one or 

more ADL, as VA has found ‘‘each time’’ 

to be too restrictive. 

In establishing this requirement of 

‘‘each time’’, VA believed that 

specifying the frequency with which 

personal care services would be needed 

(that is, ‘‘each time’’ the veteran or 

servicemember completes one or more 

ADL) would establish a clear, objective 

standard that could be consistently 

applied throughout PCAFC. See 85 FR 

13360–13361 (March 6, 2020); 85 FR 

46233 (July 31, 2020). It was also 

established to align with VA’s goal of 

focusing PCAFC on eligible veterans 

with moderate and severe needs. Id. 


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However, VA received comments when 

it originally proposed the ‘‘each time’’ 

requirement, which included concerns 

that the ‘‘each time’’ requirement would 

be too restrictive and may result in 

denial of eligibility for some individuals 

with moderate and severe needs. Id. at 

46232–46234. In the July 31, 2020 Final 

Rule, VA explained that if, over time, 

VA found that the definition of inability 

to perform an ADL was as restrictive as 

the commenters asserted it would be, 

VA would adjust and revise the 

definition accordingly in a future 

rulemaking. Id. at 46234. 

Since that time, VA has continued to 

receive feedback from stakeholders that 

the requirement of ‘‘each time’’ in the 

current definition of the term inability 

to perform an ADL is too restrictive. For 

example, this issue was raised by 

stakeholders that participated in VA’s 

roundtable listening session conducted 

on December 5, 2023. (See written 

transcript of roundtable discussion 

available online at www.regulations.gov 

under RIN 2900–AR96). VA agrees 

based on VA’s review of denied 

applications. Through exchanges with 

stakeholders, including veterans, 

caregivers, VSOs, and members of 

Congress, and reviews of de-identified 

PCAFC evaluations that have been 

completed, VA identified instances of 

veterans with moderate or severe needs 

who almost always require assistance 

with one or more ADL yet, because of 

occasional episodes of independence, 

do not meet the current standard of 

requiring personal care services ‘‘each 

time’’ the veteran completes one or 

more ADL. This does not align with 

VA’s intent to focus PCAFC on 

individuals with moderate and severe 

needs. VA provides illustrative 

examples below to showcase the 

restrictive nature of the ‘‘each time’’ 

requirement. 

For example, a veteran may 

experience tremors and weakness due to 

their disability and consequently, 

require hands-on assistance from 

another individual when feeding and 

dressing on most occasions. However, 

due to waxing and waning of such 

symptoms over the course of an 

occasional day, this veteran can feed 

and dress themselves without assistance 

from another individual when they are 

experiencing limited symptoms. Such 

episodes in which the veteran 

experiences limited symptoms are not 

common for the veteran’s level of 

function, and the reprieve of symptoms 

is infrequent. Because this veteran has 

occasional episodes of independence to 

complete one or more ADL, the veteran 

does not meet the current definition of 

inability to perform an ADL because 

personal care services are not required 

‘‘each time’’ they feed and dress 

themselves. 

Similarly, as another example, a 

veteran who usually requires hands-on 

assistance with toileting and mobility 

may have occasional days when the 

veteran, following a full night of rest, 

can perform each of these ADL 

independently for a limited period of 

time in the morning. However, as the 

day progresses, this veteran becomes 

fatigued and is unable to sustain the 

level of exertion needed to 

independently perform these ADL for 

the remainder of the day, thus requiring 

the assistance of another individual. 

This veteran also does not meet the 

current definition of inability to perform 

an ADL because they do not require 

assistance ‘‘each time’’ they perform 

these ADL. 

In these and similar illustrative 

examples, VA has found that the ‘‘each 

time’’ standard has excluded 

individuals from meeting the 

requirement to be in need of personal 

care services based on an inability to 

perform an ADL despite having what 

VA considers to be moderate or severe 

needs. Such individuals are determined 

to not meet the current definition of 

inability to perform an ADL because 

they have episodes of independence 

that do not result in such individuals 

requiring personal care services ‘‘each 

time’’ they perform an ADL and they do 

not meet the requirement under current 

§ 71.20(a)(3)(i). VA has thus determined 

that the requirement of ‘‘each time’’ in 

the current definition of inability to 

perform an ADL is too restrictive. 

VA acknowledges that when the 

‘‘each time’’ requirement in the 

definition of inability to perform an 

ADL was established, VA believed that 

such an objective and clear frequency 

requirement was necessary to create a 

consistent standard that could be 

operationalized across PCAFC. 85 FR 

46233 (July 31, 2020). However, VA no 

longer believes this standard is 

necessary to create consistency when 

evaluating an individual’s inability to 

perform an ADL. This is because VA’s 

process for evaluating veterans and 

servicemembers under § 71.20(a)(3) 

includes comprehensive assessments 

that are able to identify specific 

variability in a veteran’s or 

servicemember’s unique functional 

needs, abilities, and usual routines. VA 

therefore asserts it is reasonable and 

appropriate to propose a standard that is 

less strict than ‘‘each time’’ in order to 

accommodate veterans and 

servicemembers with moderate and 

severe needs who would otherwise be 

excluded from PCAFC. 

As an alternative to this proposal, VA 

considered whether to include a specific 

frequency requirement other than ‘‘each 

time’’, and whether that should be a 

quantitative standard. VA recognizes the 

importance of ensuring VA’s 

interpretation of 38 U.S.C. 

1720G(a)(2)(C)(i) in proposed 38 CFR 

71.20(a)(3)(i) accounts for the unique 

functional needs, abilities, and usual 

routines of individual veterans and 

servicemembers who require hands-on 

assistance to complete one or more ADL 

and decided not to propose a 

quantitative standard and instead focus 

on what a veteran or servicemember 

typically requires. As discussed in 

regard to proposed changes to § 71.15, 

VA proposes to add a definition stating 

that typically requires means a clinical 

determination which refers to that 

which is generally necessary. 

As identified by the Federal Circuit in 

Veteran Warriors, ‘‘[t]here is a statutory 

gap’’ as to how often an individual must 

be unable to perform an ADL under 38 

U.S.C. 1720G(a)(2)(C)(i). See Veteran 

Warriors at 1339. Previously, VA 

adopted the ‘‘each time’’ requirement to 

fill that gap for purposes of interpreting 

and applying 38 U.S.C. 

1720G(a)(2)(C)(i), and now, VA proposes 

to modify the requirement by replacing 

it with typically requires in 38 CFR 

71.20(a)(3)(i). Inclusion of the term 

typically requires would address such 

questions as how often a veteran or 

servicemember must be unable to 

perform an ADL, how often the inability 

must be present, and how pervasive the 

inability must be for purposes of 

establishing inability to perform an 

ADL. Id. 

In proposing to revise § 71.20(a)(3)(i) 

to focus on what is typically required by 

each veteran or servicemember rather 

than use another quantitative standard, 

VA would avoid setting a specific 

quantifiable threshold. VA 

acknowledges that in its July 31, 2020 

Final Rule VA stated it did not want to 

use a non-specific threshold (for 

example, most or majority of time) for 

purposes of defining inability to perform 

an ADL because using such thresholds 

would be vague, subjective, arbitrary, 

difficult to quantify, and could lead to 

inconsistencies. 85 FR 46233–46234 

(July 31, 2020). However, VA now 

believes using the term typically 

requires is appropriate because the 

determination of whether a veteran or 

servicemember is in need of personal 

care services based on an inability to 

perform an ADL is a clinical 

determination that inherently accounts 

for the individual’s unique functional 

needs, abilities, and usual routines. A 

specific quantifiable threshold that 


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5See Merriam-Webster Dictionary, 2023, https:// 

www.merriam-webster.com/dictionary/frequent 

(last visited Jul. 26, 2024); The Britannica 

Dictionary, 2023, https://www.britannica.com/ 

dictionary/frequent (last visited Jul. 26, 2024); and 

Oxford English Dictionary, 2023, https://

www.oed.com/search/dictionary/

?scope=Entries&q=frequent (last visited Jul. 26, 

2024). 

6See Merriam-Webster Dictionary, 2023, https:// 

www.merriam-webster.com/dictionary/supervision 

(last visited Feb. 8, 2024); The Britannica 

Dictionary, 2023, https://www.britannica.com/ 

dictionary/supervision (last visited Feb. 8, 2024); 

and Oxford English Dictionary, 2023, https://

www.oed.com/search/dictionary/?scope=Entries&

q=supervision (last visited Feb. 8, 2024). 

applies equally to all individuals could 

potentially result in the exclusion of 

some veterans and servicemembers with 

moderate and severe needs from PCAFC 

as was the case with VA’s 

implementation of the ‘‘each time’’ 

requirement. This is because such a 

threshold would not provide the 

flexibility that would be required to 

account for each individual’s unique 

functional needs, abilities, and usual 

routines in making the determination of 

whether they are in need of personal 

care services. 

iii. Implementation of Proposed 

§ 71.20(a)(3)(i) 

A determination that a veteran or 

servicemember typically requires handson assistance to complete one or more 

ADL under proposed § 71.20(a)(3)(i) 

would be a clinical determination based 

on an assessment of the veteran’s or 

servicemember’s unique functional 

needs, abilities, and usual routines and 

take into consideration the tasks 

required to complete the ADL. In 

making this clinical determination VA 

may consider, for example, the 

frequency with which the ADL is 

completed, the functions and tasks 

performed by the individual to complete 

the ADL, and the frequency with which 

hands-on assistance from another 

individual is needed to complete such 

ADL, as each of these can vary from 

person to person. 

A. Frequency of the Functions and 

Tasks Required To Complete an ADL 

VA first must determine what 

functions and tasks are performed by an 

individual in order to complete an ADL, 

as this can vary from person to person. 

VA notes that requiring hands-on 

assistance only to complete functions or 

tasks performed on an occasional basis 

that are not part of the individual’s 

usual self-care routine would not mean 

the veteran or servicemember typically 

requires hands-on assistance to 

complete an ADL. For example, one 

veteran may shave on a daily basis as 

part of completing the ADL of grooming, 

while a different veteran who chooses to 

maintain a full beard does not shave as 

part of their grooming routine. 

B. Frequency of Need for Hands-On 

Assistance 

VA would not require assistance 

‘‘each time’’ the veteran or 

servicemember completes the ADL, as 

was explained above. Rather, VA would 

assess how frequently hands-on 

assistance is needed in conjunction with 

how often the ADL is completed. This 

would be a more expansive basis than 

what VA applies today. 

Failure to meet the proposed criterion 

in § 71.20(a)(3)(i) would not preclude 

individuals from being determined to be 

in need of personal care services under 

another basis in § 71.20(a)(3). Veterans 

and servicemembers could also be 

determined to be in need of personal 

care services based on proposed 

§ 71.20(a)(3)(ii) or (iii) (that is, the 

individual has a frequent need for 

supervision or protection based on 

symptoms or residuals of neurological 

or other impairment or injury; or the 

individual typically requires regular or 

extensive instruction or supervision to 

complete one or more ADL), which are 

discussed below. 

b. Proposed § 71.20(a)(3)(ii)—The 

Individual Has a Frequent Need for 

Supervision or Protection Based on 

Symptoms or Residuals of Neurological 

or Other Impairment or Injury 

Under current § 71.20(a)(3)(ii), an 

individual may be determined to be in 

need of personal care services for a 

minimum of six continuous months 

based on a need for supervision, 

protection, or instruction. As explained 

above, this criterion was intended to 

implement the statutory criteria in 38 

U.S.C. 1720G(a)(2)(C)(ii) and (iii) in a 

combined manner. However, the U.S. 

Court of Appeals for the Federal Circuit 

invalidated this term and its definition 

in the Veteran Warriors decision. Since 

the Veteran Warriors decision, in place 

of the term need for supervision, 

protection, or instruction and its 

definition in current § 71.15, VA has 

applied the statutory language in 38 

U.S.C. 1720G(a)(2)(C)(ii) and (iii) when 

determining whether a veteran or 

servicemember is in need of personal 

care services under 38 CFR 

71.20(a)(3)(ii). 

VA proposes to update its regulations 

to align with VA’s current practice of 

interpreting the statutory criteria in 38 

U.S.C. 1720G(a)(2)(C)(ii) and (iii) 

separately. To do so, VA proposes to 

revise 38 CFR 71.20(a)(3)(ii) to align 

with how VA has implemented the 

statutory criteria for 38 U.S.C. 

1720G(a)(2)(C)(ii) (that is, a need for 

supervision or protection based on 

symptoms or residuals of neurological 

or other impairment or injury) as a 

result of the Veteran Warriors decision. 

For purposes of interpreting 38 U.S.C. 

1720G(a)(2)(C)(ii), VA proposes to revise 

38 CFR 71.20(a)(3)(ii) by replacing the 

language ‘‘[a] need for supervision, 

protection, or instruction’’ with the 

language ‘‘[t]he individual has a 

frequent need for supervision or 

protection based on symptoms or 

residuals of neurological or other 

impairment or injury’’. This would be 

consistent with the statutory language in 

38 U.S.C. 1720G(a)(2)(C)(ii). However, 

as previously discussed regarding 38 

U.S.C. 1720G(a)(2)(C)(i), the statutory 

language in section 1720G(a)(2)(C)(ii) 

does not include an explicit frequency 

requirement; therefore, VA proposes to 

include the phrase ‘‘has a frequent 

need’’ in proposed 38 CFR 71.20(a)(3)(ii) 

to address that gap. Such term would be 

reflective of how VA has been applying 

this statutory basis since the Veteran 

Warriors ruling. Consistent with that, 

VA intends to apply common dictionary 

definitions of the word ‘‘frequent’’, 

which refer to an action occurring 

‘‘repeatedly, ‘‘habitually’’, or ‘‘on many 

occasions’’, when implementing this 

new criterion.5 VA discusses its 

proposed implementation of this 

language in greater detail further below. 

In implementing this proposed 

change, VA would continue to apply the 

statutory criteria as it relates to the 

interpretation of ‘‘supervision or 

protection’’ and ‘‘symptoms or residuals 

of neurological or other impairment or 

injury’’ as VA does in current practice. 

VA discusses this interpretation below. 

i. Supervision or Protection 

The statutory language in 38 U.S.C. 

1720G(a)(2)(C)(ii) does not define 

supervision or protection. Therefore, VA 

has relied on common definitions and 

uses of these terms to inform VA’s 

interpretation of this statutory 

provision. For instance, consistent with 

dictionary definitions of the term, VA 

considers ‘‘supervision’’ to be critical 

watching of an individual to provide 

oversight or directing (such as of 

activities or actions).6 For the purposes 

of proposed 38 CFR 71.20(a)(3)(ii), 

supervision would not be limited to or 

dependent upon the veteran’s or 

servicemember’s needs related to 

specific activities or functions, which is 

in contrast to VA’s interpretation of 

‘‘supervision’’ under proposed 

§ 71.20(a)(3)(iii), as discussed in more 

detail below. When VA evaluates a 

veteran or servicemember on the basis 

of whether the individual has a frequent 


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7See Merriam-Webster Dictionary, 2023, https:// 

www.merriam-webster.com/dictionary/protect (last 

visited Feb. 8, 2024); and The Britannica 

Dictionary, 2023, https://www.britannica.com/ 

dictionary/protection (last visited Feb. 8, 2024). 

need for supervision based on 

symptoms or residuals of neurological 

or other impairment or injury, VA 

considers their overall need for 

supervision in general. VA interprets 

the word ‘‘protection’’ to mean keep, 

cover, or shield from harm. This is also 

consistent with common definitions for 

such term.7

VA considers the need for both 

supervision and protection when 

evaluating the statutory criterion in 38 

U.S.C. 1720G(a)(2)(C)(ii). Although VA 

recognizes that the terms are distinct, 

VA does not believe it is necessary in its 

determinations to parse out whether an 

individual needs supervision, 

protection, or both under proposed 38 

CFR 71.20(a)(3)(ii) because either one 

would satisfy this regulatory basis. 

Additionally, making this distinction 

would prove challenging because 

individuals who have a need for 

protection, generally also have a need 

for supervision. Likewise, an individual 

who needs supervision may need such 

supervision at times as a means of 

protection; however, at other times, 

supervision may be needed in the 

absence of a need for protection. When 

a caregiver takes action to protect a 

veteran or servicemember from harm, 

they may do so in the course of also 

overseeing (or supervising) that 

individual. For example, a veteran with 

a history of hypervigilance and 

hallucinations and who acts upon such 

hallucinations may need protection to 

support their safety during 

hallucinations. In such instances, the 

caregiver must provide supervision to 

identify whether protection is needed. 

ii. Symptoms or Residuals of 

Neurological or Other Impairment or 

Injury 

Next, VA describes its interpretation 

of the basis for such supervision and 

protection, that is, symptoms or 

residuals of neurological or other 

impairment or injury. Consistent with 

VA’s current practice, in evaluating and 

determining whether a veteran or 

servicemember has a frequent need for 

supervision or protection based on 

symptoms or residuals of neurological 

or other impairment or injury under 

proposed § 71.20(a)(3)(ii), VA would not 

have a discrete list of symptoms or 

residuals of neurological or other 

impairment or injury by which a veteran 

or servicemember may be determined 

eligible under this criterion as these can 

vary by individual. As clinical practices 

evolve over time, VA would not want to 

list in regulation specific symptoms or 

residuals as doing so could 

unnecessarily limit VA’s ability to find 

individuals eligible under this criterion. 

However, examples of symptoms and 

residuals of neurological or other 

impairment or injury for which a 

veteran or servicemember may require 

supervision or protection may include, 

but are not limited to, unmanaged 

impulse control, command 

hallucinations, uncontrolled seizures, 

loss of muscular control, or cognitive 

impairments. 

VA does not currently have a discrete 

list of neurological or other impairments 

or injuries that would make a veteran or 

servicemember eligible under this 

criterion. See 85 FR 13363–13364 

(March 6, 2020). This is because 

individuals with similar impairments or 

injuries may experience a wide 

variation of symptoms leading to a 

variety of functional impacts. While VA 

does not propose to maintain a discrete 

list of impairments or injuries in regard 

to this criterion, examples of 

impairments or injuries for which 

symptoms or residuals may lead to a 

veteran or servicemember typically 

requiring supervision or protection may 

include, but are not limited to, 

traumatic brain injury, mental health 

conditions, Parkinson’s disease, 

dementia, and neuromuscular disorders 

such as muscular dystrophy, multiple 

sclerosis, or amyotrophic lateral 

sclerosis. 

iii. Implementation of Proposed 

§ 71.20(a)(3)(ii) 

While VA would consider whether an 

individual has a frequent need for 

supervision or protection when 

evaluating whether an individual is in 

need of personal care services on this 

basis, VA would not set forth a specific 

quantitative requirement for the 

frequency with which a veteran or 

servicemember may require supervision 

or protection other than specifying that 

the need for supervision or protection is 

frequent. VA has found that there is no 

uniform frequency of individuals’ need 

for supervision or protection based on 

symptoms or residuals of neurological 

or other impairment or injury. The 

frequency of need varies based on each 

individual’s unique needs and depends 

on severity of their symptomology. 

Therefore, when implementing 

proposed § 71.20(a)(3)(ii), VA would 

consider how frequently a veteran or 

servicemember is in need of personal 

care services under this basis. VA would 

consider how symptoms manifest for 

each unique individual, whether their 

symptoms are well-controlled, and 

whether the veteran or servicemember 

has a past pattern or history of requiring 

supervision or protection because of 

such symptomology. Although a past 

pattern or history of requiring 

supervision or protection will be 

considered, VA notes that it is not 

necessarily determinative of whether an 

individual would be determined to meet 

proposed § 71.20(a)(3)(ii), as such 

individual may not continue to need 

supervision or protection on a frequent 

basis. 

In requiring a ‘‘frequent need’’, VA 

can allow for variance in the type of 

need and circumstances presented in 

each individual case, while still 

maintaining a consistent standard. This 

approach differs from the frequency 

proposed under 38 CFR 71.20(a)(3)(i) 

and (iii) (that is, typically requires). This 

is because unlike the criteria in 

proposed § 71.20(a)(3)(i) and (iii), which 

focus on ADLs, the need for supervision 

or protection based on symptoms or 

residuals of neurological or other 

impairment or injury proposed in 

§ 71.20(a)(3)(ii) does not have a discrete 

list of needs or circumstances. In this 

regard, determining what is typically 

required for an individual would be 

impractical. 

To illustrate how the requirement for 

a frequent need would be applied, VA 

provides the following example. There 

may be two veterans with the same 

diagnosis of multiple sclerosis who both 

have symptoms of muscle weakness that 

require a caregiver to stay in close 

proximity and intervene if the veteran 

stumbles, to minimize or prevent falls. 

In this example, one veteran 

experiences muscle weakness on a 

daily, or near daily, basis and has a 

history of multiple falls, resulting in a 

daily or near daily need for supervision 

and/or protection by a caregiver. The 

other veteran experiences occasional 

muscle weakness one or two days per 

week for limited amounts of time 

following completion of recommended 

strengthening exercises, resulting in an 

occasional need for supervision or 

protection by a caregiver on these days. 

While these two veterans have the same 

diagnosis and both experience the same 

symptoms of muscle weakness, the 

former veteran may have a frequent 

need for supervision and protection 

while the latter veteran may only 

occasionally have such need. In the case 

of the second veteran in this example, 

where the need for supervision or 

protection only occurs after 

participating in their recommended 

strengthening exercises, the veteran may 

not be considered to have a frequent 

need for supervision or protection 


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8Even if not viewed as a statutory gap, the 

language in 38 U.S.C. 1720G(a)(2)(C)(iii) is at least 

ambiguous as to the frequency with which an 

individual would need regular or extensive 

instruction to be determined in need of personal 

care services on this basis. For the reasons 

explained below, VA would resolve that ambiguity 

by establishing in proposed 38 CFR 71.20(a)(3)(iii), 

that the individual typically requires regular or 

extensive instruction or supervision to meet this 

criterion. 

9See Cambridge Dictionary, 2023, https:// 

dictionary.cambridge.org/us/dictionary/english/ 

instruction (last visited Feb. 8, 2024); The 

Britannica Dictionary, 2023, https://

www.britannica.com/dictionary/instruction (last 

visited Feb. 8, 2024); and Oxford English 

Dictionary, 2023, https://www.oed.com/search/ 

dictionary/?scope=Entries&q=instruction (last 

visited Feb. 8, 2024). 

10See Merriam-Webster Dictionary, 2023, https:// 

www.merriam-webster.com/dictionary/supervision 

(last visited Sept. 24, 2023); The Britannica 

Dictionary, 2023, https://www.britannica.com/ 

dictionary/supervision (last visited Feb. 8, 2024); 

and Oxford English Dictionary, 2023, https://

www.oed.com/search/dictionary/?scope=Entries&

q=supervision (last visited Feb. 8, 2024). 

because such need is infrequent and not 

generally necessary. 

Additionally, under proposed 38 CFR 

71.20(a)(3)(ii), VA would consider 

whether an individual has a 

demonstrated past pattern or history 

when determining whether the 

individual has a frequent need for 

supervision or protection based on 

symptoms or residuals of neurological 

or other impairment or injury. However, 

a past pattern or history of needing 

supervision or protection is not 

necessarily determinative of whether an 

individual would be determined to meet 

proposed § 71.20(a)(3)(ii), as such 

individual may not continue to have a 

frequent need for supervision or 

protection. 

VA looks forward to receiving public 

comments on this proposal. 

Additionally, VA notes that if the 

changes under proposed § 71.20(a)(3)(ii) 

become effective, VA would develop 

trainings and guidance materials to 

support consistent evaluation of this 

standard. 

c. Proposed § 71.20(a)(3)(iii)—The 

Individual Typically Requires Regular 

or Extensive Instruction or Supervision 

To Complete One or More ADL 

As previously explained, the current 

regulatory text in § 71.20(a)(3)(ii) was 

intended to implement the statutory 

criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) 

and (iii) in a combined manner by 

establishing that an individual could be 

determined to be in need of personal 

care services based on a need for 

supervision, protection, or instruction. 

However, the Veteran Warriors 

decision, issued on March 25, 2022, 

invalidated VA’s definition of need for 

supervision, protection, or instruction. 

Since that decision, VA has been 

applying the statutory language in 38 

U.S.C. 1720G(a)(2)(C)(ii) and (iii) in 

place of the criterion in current 38 CFR 

71.20(a)(3)(ii). VA discussed its 

proposed interpretation of 38 U.S.C. 

1720G(a)(2)(C)(ii) above and proposes to 

further interpret 38 U.S.C. 

1720G(a)(2)(C)(iii) in proposed 

modifications to the regulations as 

discussed in more detail below. 

For purposes of interpreting 38 U.S.C. 

1720G(a)(2)(C)(iii) (that is, a need for 

regular or extensive instruction or 

supervision without which the ability of 

the veteran to function in daily life 

would be seriously impaired), VA 

proposes to add 38 CFR 71.20(a)(3)(iii) 

to state that the individual typically 

requires regular or extensive instruction 

or supervision to complete one or more 

ADL. This proposed interpretation of 

the statutory criteria deviates from 

current practice in two ways. The first 

is VA’s inclusion of the term typically 

requires, which would specify how 

often a veteran or servicemember would 

be in need of personal care services on 

this basis. The second is that VA 

identified a need to further define its 

interpretation of the statutory phrase 

‘‘without which the ability of the 

veteran to function in daily life would 

be seriously impaired’’. In proposed 

§ 71.20(a)(3)(iii), VA would interpret 

this statutory phrase to mean ‘‘to 

complete one or more ADL’’. VA 

discusses its interpretation of the 

statutory language and its proposed 

criterion in greater detail further below. 

i. Typically Requires 

Including the term typically requires 

in proposed § 71.20(a)(3)(iii) would 

specify the frequency with which an 

eligible veteran would be in need of 

personal care services on this basis and 

would align with VA’s use of the term 

typically requires in proposed 

§ 71.20(a)(3)(i), as discussed above. 

Although the words ‘‘regular’’ and 

‘‘daily’’ in 38 U.S.C. 1720G(a)(2)(C)(iii) 

could be viewed in isolation as referring 

to specific frequencies, for the reasons 

explained below, VA does not believe 

that Congress intended those words to 

establish any frequency requirement in 

section 1720G(a)(2)(C)(iii). Accordingly, 

VA proposes to include the term 

typically requires in proposed 38 CFR 

71.20(a)(3)(iii) to modify the frequency 

requirement previously established in 

the definition of supervision, protection, 

or instruction that referred to a ‘‘daily 

basis’’.8

ii. Regular or Extensive Instruction or 

Supervision 

In 38 U.S.C. 1720G(a)(2)(C)(iii), 

Congress did not define what is meant 

by regular or extensive instruction or 

supervision. In implementing this 

statutory criterion, VA has relied upon 

common definitions of the terms 

‘‘regular’’, ‘‘extensive’’, ‘‘instruction’’, 

and ‘‘supervision’’ to inform VA’s 

interpretation. Today, ‘‘regular’’ has 

been applied to mean some amount of 

supervision or instruction while 

‘‘extensive’’ has generally been applied 

to mean a large amount of supervision 

or instruction. Additionally, to date, VA 

has applied common definitions of 

‘‘instruction’’ and ‘‘supervision’’ when 

implementing the statutory criteria 

under section 1720G(a)(2)(C)(iii). VA 

now seeks to clarify and further define 

its interpretation of the statutory 

criterion and use of these terms. 

The term ‘‘instruction’’ commonly 

refers to the provision of guidance or 

detailed information to complete or 

perform an action. It is defined as 

‘‘something that someone tells you to 

do,’’ as ‘‘a statement that describes how 

to do something; an order or command; 

the action or process of teaching’’ and 

‘‘that which is taught; knowledge or 

authoritative guidance imparted by one 

person to another.’’ 9 VA’s use of the 

term ‘‘instruction’’ in proposed 

§ 71.20(a)(3)(iii) would be consistent 

with these definitions, as VA would 

consider the need for instruction to 

mean the need for detailed information 

is necessary to perform an activity as 

VA does in current practice. 

VA’s interpretation of the meaning of 

‘‘supervision’’ is addressed in the 

discussion above regarding proposed 38 

CFR 71.20(a)(3)(ii) (that is, VA considers 

‘‘supervision’’ to be critical watching of 

an individual to provide oversight or 

directing (such as of activities or 

actions)).10 While the term 

‘‘supervision’’ has the same meaning in 

proposed paragraphs (a)(3)(ii) and (iii), 

in proposed paragraph (a)(3)(iii) 

supervision would be needed with 

respect to the veteran’s or 

servicemember’s ability to complete one 

or more ADL, in contrast to supervision 

under proposed paragraph (a)(3)(ii) 

which does not include that same 

requirement. 

Additionally, VA recognizes that the 

terms ‘‘instruction’’ and ‘‘supervision’’ 

are distinct terms. However, consistent 

with VA’s proposed approach with 

regard to supervision or protection 

under proposed 38 CFR 71.20(a)(3)(ii) 

discussed above, VA does not believe it 

is necessary in its determinations to 

parse out whether an individual 

typically requires instruction, 

supervision, or both under proposed 


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11See Cambridge Dictionary, 2023, https://

dictionary.cambridge.org/us/dictionary/english/ 

regular (last visited Feb. 8, 2024); The Britannica 

Dictionary, 2023, https://www.britannica.com/ 

dictionary/regular (last visited Feb. 8, 2024); and 

Oxford English Dictionary, 2023, https://

www.oed.com/search/dictionary/?scope=Entries&

q=regular (last visited Feb. 8, 2024). 

12See Merriam-Webster Dictionary, 2023, https:// 

www.merriam-webster.com/dictionary/regular (last 

visited Feb. 8, 2024). 

13See for example, Regular Military 

Compensation (RMC) Calculator, Department of 

Defense, https://militarypay.defense.gov/ 

calculators/rmc-calculator/ (Describing ‘‘regular 

military compensation’’ as a basic level of 

compensation that every servicemember receives.) 

(last visited Feb. 8, 2024). 

14One could argue that use of the word ‘‘daily’’ 

in section 1720G(a)(2)(C)(iii) refers to a frequency 

requirement and could imply that a veteran or 

servicemember must experience the need each day. 

However, in section 1720G(a)(2)(C)(iii) the word 

‘‘daily’’ is used to modify the word ‘‘life’’ and is 

better understood to refer to the types of activities 

that the veteran or servicemember ordinarily 

completes to function in the normal course of a day 

(such as ADL). For this reason, VA does not read 

the word ‘‘daily’’ in section 1720G(a)(2)(C)(iii) to 

contain a frequency requirement. Additional 

discussion of VA’s interpretation of the phrase 

‘‘ability of the veteran to function in daily life 

would be seriously impaired’’ in section 

1720G(a)(2)(C)(iii) is below. 

15See Merriam-Webster Dictionary, 2023, https:// 

www.merriam-webster.com/dictionary/extensive 

(last visited Feb. 8, 2024); The Britannica 

Dictionary, 2023, https://www.britannica.com/ 

dictionary/extensive (last visited Feb. 8, 2024); and 

Oxford English Dictionary, 2023, https://

www.oed.com/search/dictionary/?scope=Entries&

q=extensive (last visited Feb. 8, 2024). 

§ 71.20(a)(3)(iii) because either one 

would satisfy this regulatory basis. 

Next, VA explains its proposed 

interpretations of ‘‘regular’’ instruction 

or supervision and ‘‘extensive’’ 

instruction or supervision and the 

distinction between the two. The word 

‘‘regular’’ can carry several meanings, 

such as ‘‘characterized by evenness, 

order, or harmony in physical form, 

structure, or organization; arranged in or 

constituting a constant or definite 

pattern; happening over and over again 

at the same time or in the same way; 

happening or done very often; normal or 

usual.’’ 11 Merriam Webster Dictionary 

describes ‘‘regular’’ as meaning, 

‘‘recurring, attending, or functioning at 

fixed, uniform, or normal intervals; 

normal, standard; something of average 

or medium size.’’ 12 It is this latter 

meaning, that is, that which is 

something of average or medium size, 

which VA interprets to have the most 

applicability for purposes of evaluating 

that which is ‘‘regular’’ instruction or 

supervision under proposed 

§ 71.20(a)(3)(iii). Notably, ‘‘regular’’ is 

commonly used to refer to a standard or 

indicative of size, such as regular 

clothing size versus petite or long, 

regular warranty versus extended 

warranty, regular display versus 

extended display, or an amount, such as 

with regular (basic) rates of pay.13 These 

common definitions and usages that 

align with the term meaning a size or 

degree, inform VA’s interpretation of the 

statutory language and its use of the 

term ‘‘regular’’ in proposed 

§ 71.20(a)(3)(iii). This is also consistent 

with how VA currently interprets this 

term when applying the statutory 

criteria today. 

VA’s use of the term ‘‘regular’’ in 

proposed § 71.20(a)(3)(iii) aligns with 

common usage of the term relating to 

size or degree, such as a standard 

amount. VA considered the use of 

‘‘regular’’ in terms of frequency. 

However, Congress did not include a 

frequency requirement in either of the 

criteria found in 38 U.S.C. 

1720G(a)(2)(C)(i) or (ii). Therefore, VA 

does not believe that Congress intended 

to add a frequency requirement in the 

context of only one basis that an 

individual could be determined to be in 

need of personal care services.14 As 

previously discussed, VA is proposing 

to establish a consistent frequency 

requirement for the two statutory bases 

VA proposes would apply to the need 

for personal care services to complete 

ADLs through VA’s use of the term 

typically requires in the proposed 

criterion discussed here and the 

criterion in proposed 38 CFR 

71.20(a)(3)(i) discussed above. As 

referenced in VA’s discussion of 

proposed § 71.15, typically requires 

would be a clinical determination that 

would take into consideration an 

individual’s unique functional needs, 

abilities, and usual routines when 

assessing the frequency of the 

individual’s need for personal care 

services. 

Similarly, VA would continue to 

interpret the term ‘‘extensive’’ to also 

account for size or degree but on a larger 

scale than regular. The term ‘‘extensive’’ 

commonly refers to that which is large 

in size or amount, having a wide or 

considerable extent, or extending over 

or occupying a large surface or space, 

covering a large area or being a large 

amount.15 Each of these meanings for 

extensive refers to a size or degree. VA 

therefore equates ‘‘extensive’’ with a 

greater size or higher degree of personal 

care services requiring instruction or 

supervision than that of ‘‘regular’’ as 

explained below. 

VA interprets the terms regular 

(something of average or medium size) 

and extensive (that which is large in 

size), to reflect different points along a 

spectrum. VA interprets this difference 

in size or degree to reflect a distinction 

in the size or degree of personal care 

services required by the veteran or 

servicemember. This means that a 

regular need for instruction or 

supervision is of a lower size or degree 

than an extensive need for instruction or 

supervision. 

Using this proposed standard, if 

adopted as final, when applying the 

criterion in proposed 38 CFR 

71.20(a)(3)(iii), VA would interpret the 

need for extensive instruction or 

supervision to mean that such 

instruction or supervision is required 

throughout the performance of the 

activity; hence the personal care 

services (that is, instruction or 

supervision) required to complete the 

activity would be of a large size or 

degree. In contrast, VA would interpret 

the need for regular instruction or 

supervision to mean such personal care 

services are only needed to complete a 

portion of the activity. Thus, VA would 

consider ‘‘regular’’ to refer to a lesser 

size or degree of instruction or 

supervision than that of ‘‘extensive’’. 

Although VA interprets ‘‘regular’’ and 

‘‘extensive’’ to reflect different sizes or 

degrees of personal care services 

required by the veteran or 

servicemember, having either a 

‘‘regular’’ or ‘‘extensive’’ need for 

instruction or supervision to complete 

one or more ADL would satisfy the 

criterion in proposed § 71.20(a)(3)(iii). 

This is consistent with VA’s proposed 

approach with regard to supervision or 

protection under proposed 

§ 71.20(a)(3)(ii) and instruction or 

supervision under § 71.20(a)(3)(iii) 

discussed above. However, the 

distinction between ‘‘regular’’ and 

‘‘extensive’’ would be relevant to 

determinations under proposed 

§ 71.40(c)(4)(A)(2)(i) regarding stipend 

level determinations, as discussed 

further below. 

iii. Ability To Function in Daily Life 

Would Be Seriously Impaired 

Finally, in proposed 38 CFR 

71.20(a)(3)(iii), VA also proposes to 

interpret ‘‘without which the ability of 

the veteran to function in daily life 

would be seriously impaired’’ in 38 

U.S.C. 1720G(a)(2)(C)(iii) to mean that 

such individual typically requires 

regular or extensive instruction or 

supervision ‘‘to complete one or more 

ADL’’. This is a deviation from current 

practice as currently VA may include 

other activities or functions in addition 

to ADL when applying this statutory 

criterion as is explained below. VA 

believes it is reasonable to interpret 

ADL as the ‘‘ability of the veteran to 

function in daily life’’ contemplated in 

38 U.S.C. 1720G(a)(2)(C)(iii). Activities 

or functions other than ADL for which 


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16Rajeev Ramchand, et al., Hidden Heroes: 

America’s Military Caregivers. Santa Monica, CA: 

RAND Corporation (2014), pages 54–56, available at 

https://www.rand.org/pubs/research_reports/ 

RR499.html. 

17Note that the individual with a greater need 

may qualify under a separate criterion under 

proposed 38 CFR 71.20(a)(3)(i) or (ii) and the failure 

to qualify under this basis in § 71.20(a)(3)(iii) would 

not mean that an individual is necessarily ineligible 

for PCAFC. 

veterans and servicemembers with 

moderate or severe needs may be in 

need of personal care services could be 

captured under the basis proposed in 38 

CFR 71.20(a)(3)(ii) (that is, the 

individual has a frequent need for 

supervision or protection based on 

symptoms or residuals of neurological 

or other impairment or injury). 

Therefore, proposed 38 CFR 

71.20(a)(3)(iii) would refer to instruction 

or supervision to complete one or more 

ADL rather than repeating the verbiage 

in 38 U.S.C. 1720G(a)(2)(C)(iii). 

As VA explained above regarding the 

term ‘‘regular’’ in section 

1720G(a)(2)(C)(iii), VA does not believe 

Congress intended the term ‘‘daily’’ in 

such section to establish a frequency 

requirement—especially one more 

restrictive than would apply under 

clauses (i) and (ii) of section 

1720G(a)(2)(C). The statute does not say 

that the veteran or servicemember 

would have a daily need for regular or 

extensive instruction or supervision. 

Rather, it says that without such regular 

or extensive instruction or supervision, 

the ability to ‘‘function in daily life 

would be seriously impaired.’’ In this 

context, VA interprets ‘‘function in 

daily life’’ to align with VA’s proposed 

definition of ADL in 38 CFR 71.15. In 

proposed § 71.15, ADL would be 

defined, in part, as the functions or 

tasks for self-care usually performed in 

the normal course of a day. VA believes 

this is consistent with the language 38 

U.S.C. 1720G(a)(2)(C)(iii) concerning 

functioning in daily life, as ADL are 

typically performed on a daily basis. 

However, similar to VA’s discussion on 

proposed 38 CFR 71.20(a)(3)(i) and the 

proposed definition of ADL in § 71.15, 

VA would not require that the ADL with 

which the individual requires regular or 

extensive instruction or supervision be 

performed on a daily basis. ADL often 

occur on a daily basis, but not always 

(for example, bathing). For purposes of 

this criterion, VA would apply the 

proposed definition of ADL in 38 CFR 

71.15, and the term typically requires 

would set forth the applicable frequency 

of need. VA explains its rationale for 

this interpretation in more detail below. 

In determining whether the ability of 

the veteran or servicemember to 

function in daily life would be seriously 

impaired for purposes of 38 U.S.C. 

1720G(a)(2)(C)(iii), VA contemplated 

what other essential functions or 

activities, beyond or instead of ADL, 

might be considered functions in daily 

life that would be seriously impaired 

without regular or extensive instruction 

or supervision under proposed 38 CFR 

71.20(a)(3)(iii). Specifically, VA 

considered activities caregivers 

commonly assist veterans with beyond 

ADL. Such activities include but are not 

limited to meal preparation, shopping 

for essential needs, managing finances, 

housework, and coordinating medical 

care.16 VA does not believe Congress 

intended to capture such activities 

under 38 U.S.C. 1720G(a)(2)(C)(iii) for 

the reasons discussed below. 

First, and most noteworthy, the 

phrasing of this criterion in 38 U.S.C. 

1720G(a)(2)(C)(iii) implies the veteran or 

servicemember is the individual who 

performs the activity. To have a need for 

regular or extensive instruction or 

supervision without which the ability to 

function in daily life would be seriously 

impaired suggests that the veteran or 

servicemember must be capable of 

performing some activity to function in 

daily life with the provision of such 

instruction or supervision. This means 

that if a veteran or servicemember is not 

capable of performing such activity 

because that veteran or servicemember 

is physically or cognitively incapable of 

doing so, and no amount of instruction 

or supervision would enable that 

veteran or servicemember to perform 

that activity, such veteran or 

servicemember would not qualify under 

this basis. This means an individual 

who may have a greater need, that is, 

who requires another person to 

complete the activity necessary for 

functioning in daily life in its entirely 

or on behalf of the veteran, would not 

qualify under this basis, while an 

individual who can complete the 

activity with assistance (instruction or 

supervision) could qualify.17

Second, VA does not believe Congress 

intended to include activities classified 

as instrumental activities of daily living 

(IADL) such as meal preparation, 

shopping for essential needs, managing 

finances, housework, or coordinating 

medical care within the criterion in 38 

U.S.C. 1720G(a)(2)(C)(iii) because such 

activities are those that may be 

completed entirely by another 

individual without the veteran’s or 

servicemember’s presence or 

involvement. Therefore, if these 

activities are not performed by the 

veteran or servicemember either by 

choice or inability, and are instead 

completed by another individual, the 

veteran’s or servicemember’s 

functioning in daily life would not be 

seriously impaired—with or without 

instruction or supervision in performing 

such activities, as they do not perform 

the activity. This would not mean that 

individuals who are incapable of 

performing or who otherwise need 

assistance with these activities would be 

excluded from PCAFC. Such 

individuals may still be in need of 

personal care services based on meeting 

the other criteria under proposed 

§ 71.20(a)(3). 

Therefore, ADL are the only activities 

VA identified for which the ability of 

the veteran or servicemember to 

function in daily life would be seriously 

impaired in the absence of regular or 

extensive instruction or supervision and 

that pursuant to this interpretation, the 

criterion in proposed § 71.20(a)(3)(iii) 

would not unduly disadvantage one 

group over another. Furthermore, in 

contrast to the other functions or 

activities VA considered, ADL cannot be 

done without the veteran’s or 

servicemember’s presence or 

involvement. The veteran’s or 

servicemember’s physical presence is 

necessary for the ADL to be completed 

because the ADL that is completed is 

performed on, or directly impacts, the 

veteran’s body. Thus, VA finds it 

appropriate to interpret 38 U.S.C. 

1720G(a)(2)(C)(iii) to mean the 

individual typically requires regular or 

extensive instruction or supervision to 

complete one or more ADL. While there 

are indeed other activities which could 

result in a veteran’s or servicemember’s 

ability to function in daily life being 

seriously impaired that are not related 

to ADL, such as but not limited to a 

veteran or servicemember who requires 

supervision due to frequent falls, or a 

veteran or servicemember who requires 

instruction or supervision to properly 

self-administer medications, such needs 

could be captured under proposed 38 

CFR 71.20(a)(3)(ii). An illustrative 

example is provided below when VA 

addresses multiple bases for being 

determined to be in need of personal 

care services. 

Although VA did not identify any 

other life activities or functions that 

would meet the statutory language 

beyond that which are ADL and which 

are not already covered under the other 

bases (that is, a need for hands-on 

assistance or a need for regular or 

extensive supervision or instruction to 

complete one or more ADL), VA 

specifically requests comments on this 

topic from the public on whether there 

are certain IADL, or other activities or 

functions in daily life that VA should 

consider for purposes of determining 

that an individual is in need of personal 


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care services under 38 U.S.C. 

1720G(a)(2)(C)(iii) and proposed 38 CFR 

71.20(a)(3)(iii). 

iv. Implementation of Proposed 

§ 71.20(a)(3)(iii) 

Similar to VA’s discussions above 

regarding proposed 38 CFR 

71.20(a)(3)(i), in evaluating whether the 

individual typically requires regular or 

extensive instruction or supervision to 

complete one or more ADL should this 

proposed regulation text become final, 

VA would consider the instruction or 

supervision that is generally necessary 

when the individual is completing one 

or more ADL. In determining if an 

individual typically requires regular or 

extensive instruction or supervision to 

complete one or more ADL, VA would 

consider for each individual, factors 

such as how often the ADL is completed 

as well as the frequency with which 

instruction or supervision is needed to 

complete such ADL. What is typically 

required would be a clinical 

determination based on an assessment 

of the veteran’s or servicemember’s 

needs and would take into 

consideration things like the individual 

veteran’s or servicemember’s unique 

functional needs, abilities, usual 

routines, and the tasks required to be 

able to complete the ADL. 

d. Eligibility Under Multiple Proposed 

Bases 

Under VA’s proposed interpretation 

of 38 CFR 71.20(a)(3)(i) through (iii), 

some veterans and servicemembers may 

be determined to be in need of personal 

care services based on more than one 

criterion. This means that a veteran or 

servicemember may be determined to be 

in need of multiple types of personal 

care services (that is, hands-on 

assistance with ADL, supervision or 

protection, and/or instruction or 

supervision). For example, while both 

proposed § 71.20(a)(3)(i) and (iii) would 

require a veteran or servicemember to 

typically require personal care services 

with respect to one or more ADL, the 

type of personal care services that 

would be required by the veteran to 

satisfy each proposed criterion differ. 

Under proposed § 71.20(a)(3)(i), the 

individual would typically require 

hands-on assistance, and under 

proposed § 71.20(a)(3)(iii), the 

individual would typically require 

regular or extensive instruction or 

supervision, which VA would consider 

to be something other than hands-on 

assistance. For example, a veteran may 

typically require hands-on assistance 

with bathing and also typically require 

regular or extensive instruction for 

dressing. In such instance, the veteran 

may meet both proposed § 71.20(a)(3)(i) 

and (iii). This is just one example; 

however, an individual could be 

determined to be in need of personal 

care services based on meeting various 

combinations of the criteria in proposed 

§ 71.20(a)(3) such as meeting the 

criterion in proposed § 71.20(a)(3)(i) and 

(ii) or meeting all three criteria in 

proposed § 71.20(a)(3)(i) through (iii). 

2. Section 71.20(a)(7)—Ongoing Care 

From a Primary Care Team 

Current § 71.20(a)(7) requires that the 

individual receives ongoing care from a 

primary care team or will do so if VA 

designates a Family Caregiver. VA 

proposes to revise this paragraph to 

require that the individual receives 

ongoing care from a primary care team 

or will do so within 120 days of the date 

VA designates a Family Caregiver. VA 

would further propose to state in this 

paragraph that if the individual is 

unable to receive such care due, at least 

in part, to an event or action within 

VA’s control, VA may extend this 120- 

day period. 

As explained in VA’s 2011 IFR and 

2015 Final Rule implementing PCAFC, 

the current requirement to receive 

ongoing care in § 71.20(a)(7) is 

necessary to enable VA to perform 

statutorily required functions, including 

documenting findings related to the 

delivery of personal care services and 

ensuring appropriate follow-up. See 76 

FR 26151 (May 5, 2011) and 80 FR 

1363–1364 (January 9, 2015) (citing 38 

U.S.C. 1720G(a)(9)). 

As proposed, VA would continue to 

require that the individual receives 

ongoing care from a primary care team 

or will do so if VA designates a Family 

Caregiver. However, VA proposes to add 

a timeframe, specifically, within 120 

days of the date VA designates a Family 

Caregiver, within which the individual 

must do so. Requiring the individual to 

receive ongoing care from a primary 

care team within a specified time frame 

would enable VA to ensure that it 

continues to provide appropriate followup and perform statutorily mandated 

functions within a reasonable amount of 

time following designation of a Family 

Caregiver, as described above. This is 

especially important for those 

individuals who are not already 

receiving ongoing care from a primary 

care team, as that could result in 

delayed access to necessary care, 

including supports and services, which 

could lead to potentially unsafe 

situations. 

VA believes that allowing for 120 

days to receive such care is a reasonable 

amount of time to schedule and receive 

care from a primary care team following 

VA’s designation of a Family Caregiver. 

Furthermore, it would align with the 

timing within which VA would conduct 

the first wellness contact, which is 

generally conducted 120 days after 

approval. See 38 CFR 71.40(b)(2). 

Wellness contacts include but are not 

limited to a review of the eligible 

veteran’s well-being and allow VA the 

opportunity to identify and provide any 

additional support, services, or referrals 

for services needed by the eligible 

veteran or Family Caregiver. See 85 FR 

13380 (March 6, 2020). Additionally, 

while eligible veterans and Family 

Caregivers may request additional 

supports and services at any time, such 

requests are often made and discussed 

during wellness contacts. Ensuring the 

eligible veteran is receiving ongoing 

care from a primary care team within 

120 days of the date VA designates a 

Family Caregiver would avoid delay in 

the eligible veteran obtaining needed 

services. 

Pursuant to proposed paragraph (a)(7), 

VA would also have the discretion to 

extend this time period if the individual 

is unable to receive ongoing care from 

a primary care team due, at least in part, 

to an event or action within VA’s 

control. While VA anticipates an 

individual who seeks to receive care 

from a primary care team will be able 

to receive such care within 120 days, 

VA recognizes there may be extenuating 

circumstances in which receipt of such 

care may take longer than 120 days. 

This provision, as proposed, would 

continue to allow for some flexibility in 

such instances. 

3. Section 71.20(b) and (c)—Legacy 

Applicants and Legacy Participants 

Currently, under paragraphs (b) and 

(c) of § 71.20, for five years beginning on 

October 1, 2020, a veteran or 

servicemember is eligible for a Primary 

or Secondary Family Caregiver under 

part 71 if they are a legacy applicant or 

legacy participant. As discussed earlier 

in this rulemaking, VA proposes to 

extend this transition period for the 

legacy cohort. To provide for this 

additional period, VA proposes to 

amend § 71.20(b) and (c). 

First, VA proposes to amend 

§ 71.20(b) and (c) by removing the 

phrase ‘‘For five years beginning on 

October 1, 2020’’ and adding in its 

place, the phrase ‘‘Beginning on October 

1, 2020 through [18 months after 

EFFECTIVE DATE OF FINAL RULE]’’. 

Additionally, VA would replace 

‘‘Primary or Secondary Family 

Caregiver’’ with ‘‘Primary Family 

Caregiver or Secondary Family 

Caregiver’’ to reference those terms as 

they are defined in § 71.15. Finally, VA 


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would replace the phrase ‘‘he or she’’ 

with ‘‘veteran or servicemember’’ to 

conform to VA’s goal to ensure its 

regulations are gender neutral. 

As proposed, paragraph (b) would 

state beginning on October 1, 2020 

through [18 months after EFFECTIVE 

DATE OF FINAL RULE], a veteran or 

servicemember is eligible for a Primary 

Family Caregiver or Secondary Family 

Caregiver under this part if the veteran 

or servicemember is a legacy 

participant. Proposed paragraph (c) 

would state beginning on October 1, 

2020 through [18 months after 

EFFECTIVE DATE OF FINAL RULE], a 

veteran or servicemember is eligible for 

a Primary Family Caregiver or 

Secondary Family Caregiver under this 

part if the veteran or servicemember is 

a legacy applicant. 

VA solicits comments from the public 

on all aspects of this proposed rule. In 

particular, VA asks the following 

questions on specific aspects of this 

proposal. 

1. What activities or tasks in addition 

to or other than ADL should VA 

consider when determining whether a 

veteran or servicemember has a need for 

regular or extensive instruction or 

supervision without which the ability of 

the veteran to function in daily life 

would be seriously impaired? 

2. VA has explained VA’s 

interpretation of the words ‘‘regular’’ 

and ‘‘extensive’’ instruction or 

supervision. How else might ‘‘regular’’ 

be distinguished from ‘‘extensive’’ 

instruction or supervision? 

3. As explained above, VA would not 

set forth a specific quantitative 

requirement for the frequency with 

which a veteran or servicemember may 

require supervision or protection other 

than specifying that the individual has 

a frequent need for supervision or 

protection. This is because the need for 

supervision or protection is not limited 

to a discrete list of activities or 

circumstances. VA has found that there 

is no uniform frequency of individuals’ 

need for supervision or protection based 

on symptoms or residuals of 

neurological or other impairment or 

injury. The frequency of need varies 

based on each individual’s unique 

needs and depends on severity of their 

symptomology. Is there a different 

frequency standard VA should consider, 

and if so, what is that standard? 

E. 38 CFR 71.25 Approval and 

Designation of Primary Family 

Caregivers and Secondary Family 

Caregivers 

Section 71.25 describes the process 

for approval and designation of Primary 

Family Caregivers and Secondary 

Family Caregivers. As described below, 

VA proposes to amend § 71.25(a) and (b) 

by revising certain terminology, 

restructuring certain language, and 

adding additional language to address 

application and eligibility requirements. 

1. Section 71.25(a)—Application 

Requirement 

Current § 71.25(a) explains the 

requirement for submission of a joint 

application for approval and 

designation of a Primary Family 

Caregiver or Secondary Family 

Caregiver. In current § 71.25(a)(1), VA 

requires individuals who wish to be 

considered for designation by VA as 

Primary Family Caregivers or Secondary 

Family Caregivers to submit a joint 

application, along with the veteran or 

servicemember. Individuals interested 

in serving as Family Caregivers must be 

identified as such on the joint 

application, and no more than three 

individuals may serve as Family 

Caregivers at one time for an eligible 

veteran, with no more than one serving 

as the Primary Family Caregiver and no 

more than two serving as Secondary 

Family Caregivers. 

VA proposes to add a paragraph to 

§ 71.25(a)(1) to address instances of a 

Secondary Family Caregiver seeking 

designation as the Primary Family 

Caregiver and would reorganize 

§ 71.25(a)(1) as a result. As proposed, 

§ 71.25(a)(1) would state that 

individuals who wish to be considered 

for designation by VA as Primary 

Family Caregivers or Secondary Family 

Caregivers must submit a joint 

application, along with the veteran or 

servicemember. However, VA would 

add two paragraphs to proposed 

§ 71.25(a)(1). 

Proposed § 71.25(a)(1)(i) would 

consist of the second sentence of current 

paragraph § 71.25(a)(1) without change. 

Proposed § 71.25(a)(1)(ii) would state a 

currently approved Secondary Family 

Caregiver for the eligible veteran may 

apply for designation as the Primary 

Family Caregiver by submitting a new 

joint application along with the eligible 

veteran. 

VA proposes to add § 71.25(a)(1)(ii) to 

clarify that the joint application 

requirement still applies when an 

individual who is currently serving as a 

Secondary Family Caregiver wishes to 

be designated as the Primary Family 

Caregiver. If a Primary Family 

Caregiver’s designation is revoked, they 

are discharged from PCAFC, or if the 

Primary Family Caregiver’s revocation 

or discharge is pending, then the 

eligible veteran and their approved and 

designated Secondary Family Caregiver 

may want the Secondary Family 

Caregiver to be approved and designated 

as the Primary Family Caregiver. VA’s 

current practice is to require that the 

Secondary Family Caregiver submit a 

new joint application, along with the 

eligible veteran. VA would continue 

with its current practice as it ensures 

the statutory requirements in 38 U.S.C. 

1720G(a)(7) are met, including the 

requirement in section 

1720G(a)(7)(B)(iii), that the eligible 

veteran consents to VA’s designation of 

the individual as the Primary Family 

Caregiver for the eligible veteran. By 

submitting a new joint application, both 

the eligible veteran and the individual 

applying as the Primary Family 

Caregiver make their intentions known 

and it ensures that both parties are 

seeking the change in designation. 

Therefore, new proposed 38 CFR 

71.25(a)(1)(ii) would state a currently 

approved Secondary Family Caregiver 

for the eligible veteran may apply for 

designation as the Primary Family 

Caregiver by submitting a new joint 

application along with the eligible 

veteran. 

Although this is not a proposed 

change, it is important to note that if the 

eligible veteran is a legacy participant or 

legacy applicant and a new joint 

application is received by VA on or after 

October 1, 2020 that results in approval 

and designation of the same or a new 

Primary Family Caregiver, the eligible 

veteran would no longer be considered 

a legacy participant or legacy applicant 

as those terms are defined in 38 CFR 

71.15. See 85 FR 13375–13376 (March 6, 

2020). 

VA also proposes to amend 

§ 71.25(a)(2)(i) to address evaluation 

requirements when a current Secondary 

Family Caregiver seeks designation as a 

Primary Family Caregiver. Pursuant to 

current § 71.25(a)(2)(i), upon receiving a 

joint application, VA (in collaboration 

with the primary care team to the 

maximum extent practicable) will 

perform the evaluations required to 

determine the eligibility of the 

applicants under part 71, and if eligible, 

determine the applicable monthly 

stipend amount under § 71.40(c)(4). See 

§ 71.25(a)(2)(i). Notwithstanding that, 

VA will not evaluate a veteran’s or 

servicemember’s eligibility under 

§ 71.20 as part of the application process 

when a joint application is received 

seeking to designate a Secondary Family 

Caregiver for an eligible veteran who 

has a designated Primary Family 

Caregiver. Id. 

VA proposes to add an additional 

exception when it would not evaluate a 

veteran’s or servicemember’s eligibility 

under § 71.20 as part of the application 

process and proposes to reorganize 


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§ 71.25(a)(2)(i) as a result. VA proposes 

to revise § 71.25(a)(2)(i) by adding the 

phrase ‘‘except as provided in 

paragraphs (a)(2)(i)(A) and (B) of this 

section,’’ in the first sentence and 

adding new paragraphs (A) and (B). In 

proposed § 71.25(a)(2)(i), VA would 

refer to the ‘‘monthly stipend payment’’ 

instead of the term ‘‘monthly stipend 

amount’’ that appears in the first 

sentence of current § 71.25(a)(2)(i). This 

proposed change would ensure 

consistency with terminology used 

elsewhere in part 71. VA also proposes 

to move part of the last sentence in 

current § 71.25(a)(2)(i) regarding when a 

joint application is received seeking to 

designate a Secondary Family Caregiver 

for an eligible veteran who already has 

a designated Primary Family Caregiver 

to new paragraphs (A) and (A)(1). In 

addition to reorganizing that language 

into a new paragraph (a)(2)(i)(A) and 

paragraph (A)(1), VA would add ‘‘as 

part of the application process’’, change 

‘‘add’’ to ‘‘designate’’, and add 

‘‘already’’. These proposed edits are 

intended to be non-substantive 

technical changes that would further 

clarify this provision. VA proposes no 

other changes to that language. 

VA also proposes to add new 

paragraph § 71.25(a)(2)(i)(A)(2) to 

address situations in which a current 

Secondary Family Caregiver seeks to 

change their designation to a Primary 

Family Caregiver. Under proposed 

§ 71.25(a)(2)(i)(A)(2), VA would not 

reevaluate an eligible veteran under 

§ 71.20 when an eligible veteran seeks to 

designate a current Secondary Family 

Caregiver for the eligible veteran as the 

Primary Family Caregiver for that same 

eligible veteran so long as the eligible 

veteran has already been determined to 

meet the eligibility criteria found in 

current § 71.20(a) or proposed 

§ 71.20(a). In proposing this change, VA 

seeks to eliminate unnecessary 

evaluations of eligible veterans while 

also ensuring that VA approves and 

designates a Primary Family Caregiver 

only for a veteran or servicemember 

who has been determined to meet 

PCAFC eligibility criteria in § 71.20(a). 

In proposed § 71.25(a)(2)(i)(A)(2), VA 

would reference the § 71.20(a) criteria 

that would be in effect as of the effective 

date of this proposed rulemaking, if 

adopted, as well as the current 

§ 71.20(a) criteria (which may have 

included the statutory criteria in 38 

U.S.C. 1720G(a)(2)(C)(ii) and (iii) in 

place of the definition of need for 

supervision, protection, or instruction). 

This is because, those who have been 

determined to meet the eligibility 

criteria in current § 71.20(a) would also 

meet the eligibility criteria in proposed 

§ 71.20(a). Instead of evaluating 

eligibility under § 71.20(a) when a joint 

application is received to change the 

Secondary Family Caregiver to Primary 

Family Caregiver, VA proposes to rely 

on its most recent evaluation of the 

personal care needs of the eligible 

veteran to inform the determination of 

the Secondary Family Caregiver’s ability 

to serve in the role of Primary Family 

Caregiver, and if eligible, the monthly 

stipend payment the Primary Family 

Caregiver would be eligible to receive as 

set forth in proposed revisions to 

§ 71.40(c)(4)(i)(A). This most recent 

evaluation of the personal care needs of 

the eligible veteran would have 

included the Family Caregiver’s 

assessment of the needs and limitations 

of the eligible veteran to the extent 

required by 38 U.S.C. 

1720G(a)(3)(C)(iii)(I). In this scenario, 

re-evaluation of the eligible veteran 

would be unnecessary. However, at any 

time after the Secondary Family 

Caregiver transitions to being approved 

and designated as the Primary Family 

Caregiver, the eligible veteran or 

Primary Family Caregiver may request a 

reassessment in writing pursuant to 

proposed § 71.30(c), which is discussed 

below. 

As proposed, § 71.25(a)(2)(i) would 

state upon receiving such application, 

except as provided in paragraphs 

(a)(2)(i)(A) and (B) of § 71.25, VA (in 

collaboration with the primary care 

team to the maximum extent 

practicable) will perform the 

evaluations required to determine the 

eligibility of the applicants under part 

71, and if eligible, determine the 

applicable monthly stipend payment 

under § 71.40(c)(4). Proposed 

§ 71.25(a)(2)(i)(A) would state VA will 

not evaluate a veteran’s or 

servicemember’s eligibility under 

§ 71.20 as part of the application process 

when: (1) A joint application is received 

seeking to designate a Secondary Family 

Caregiver for an eligible veteran who 

already has a designated Primary Family 

Caregiver; or (2) A joint application is 

received that seeks to change the 

designation of a current Secondary 

Family Caregiver for an eligible veteran 

to designation as the Primary Family 

Caregiver for that same eligible veteran 

so long as the eligible veteran has 

already been determined to meet the 

eligibility criteria under proposed 

§ 71.20(a) or § 71.20(a) (2021) (which 

may have included the statutory criteria 

in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) 

in place of the criterion in 

§ 71.20(a)(3)(ii)). 

Additionally, VA proposes to add 

new § 71.25(a)(2)(i)(B) to indicate that 

the required evaluations for Family 

Caregiver applicants found in § 71.25 

may not all be required when a current 

approved Secondary Family Caregiver 

applies to be designated as the Primary 

Family Caregiver for the same eligible 

veteran. Proposed § 71.25(a)(2)(i)(B) 

would state upon receipt of a joint 

application that seeks to designate a 

current Secondary Family Caregiver as 

the Primary Family Caregiver for the 

same eligible veteran, VA will 

determine which evaluations under 

§ 71.25 are necessary to assess the 

individual’s eligibility as the Primary 

Family Caregiver. VA proposes this new 

paragraph as VA may not require reevaluation of each eligibility criteria for 

such individuals, as those serving as a 

Secondary Family Caregiver for an 

eligible veteran would have already 

been determined to meet the eligibility 

requirements found in § 71.25. The 

individual designated as a Secondary 

Family Caregiver would have already 

completed caregiver training and 

demonstrated the ability to carry out the 

specific personal care services, core 

competencies, and additional care 

requirements needed by the eligible 

veteran. For these reasons, VA believes 

that a more limited evaluation may be 

warranted to determine eligibility of a 

current Secondary Family Caregiver to 

serve as the Primary Family Caregiver. 

While VA is not proposing to amend 

§ 71.40(d) regarding the effective date of 

PCAFC benefits, VA notes that new 

benefits for Secondary Family 

Caregivers who are subsequently 

designated as a Primary Family 

Caregiver would become effective 

pursuant to § 71.40(d). This would mean 

that in the event a Secondary Family 

Caregiver applies for and is designated 

as the Primary Family Caregiver for the 

same eligible veteran, additional 

benefits exclusive to the role of Primary 

Family Caregiver, such as the monthly 

stipend, would become effective 

pursuant to § 71.40(d) requirements. 

Current § 71.25(a)(2)(ii) explains that 

individuals who apply to be Family 

Caregivers must complete all necessary 

eligibility evaluations (along with the 

veteran or servicemember), education 

and training, and the initial home-care 

assessment (along with the veteran or 

servicemember) so that VA may 

complete the designation process no 

later than 90 days after the date the joint 

application was received by VA. Current 

§ 71.25(a)(2)(ii) further explains that if 

such requirements are not completed 

within 90 days from the date the joint 

application is received by VA, the joint 

application will be denied, and a new 

joint application will be required. VA 

may extend the 90-day period based on 


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VA’s inability to complete the eligibility 

evaluations, provide necessary 

education and training, or conduct the 

initial home-care assessment, when 

such inability is solely due to VA’s 

action. 

VA has had instances in which VA 

has extended the 90-day timeline based 

on VA’s inability to approve and 

designate a Family Caregiver solely 

because of actions taken or not taken by 

VA. However, VA has found that such 

inability is rarely because of one 

discrete event where responsibility for 

the delay is easily identified and 

attributed to VA. More often, VA has 

experienced instances when there may 

be an initial delay in VA scheduling an 

evaluation, for example, and because of 

this delay the veteran (or 

servicemember) or Family Caregiver 

applicant may be delayed in completing 

other requirements, or vice versa. VA 

proposes to provide flexibility to VA to 

extend the 90-day period rather than 

deny the application and require the 

veteran and Family Caregiver applicant 

to re-submit a joint application, which 

would further delay access to PCAFC. 

Thus, VA proposes to revise this last 

sentence of § 71.25(a)(2)(ii) to remove 

the word solely and explain that VA 

may extend the 90-day period based on 

VA’s inability to complete the eligibility 

evaluations, provide necessary 

education and training, or conduct the 

initial home-care assessment, when 

such inability is, at least in part, due to 

VA’s action. This proposal, if adopted, 

would give VA greater flexibility to 

extend the deadline for completing the 

designation process, and VA expects 

that this change would reduce burdens 

on VA staff as well as PCAFC applicants 

who would otherwise be required to resubmit a joint application if the 

designation process was not completed 

within the 90-day timeline. 

VA also proposes to amend 

§ 71.25(a)(3) to address how it would 

evaluate joint applications if the 

proposed revisions to the definition of 

joint application under § 71.15 and 

other proposed changes to eligibility 

criteria discussed in this proposed rule 

are made final and effective. Current 

§ 71.25(a)(3) explains how VA will 

evaluate joint applications received 

before, on, and after October 1, 2020, 

which is the date that the July 31, 2020 

Final Rule became effective. Joint 

applications received by VA before 

October 1, 2020 were evaluated by VA 

based on 38 CFR 71.15, 71.20, and 71.25 

(2019) except that the term joint 

application as defined in current § 71.15 

applied to such applications. Joint 

applications received on or after 

October 1, 2020 were and are evaluated 

based on the criteria in effect on or after 

such date. § 71.25(a)(3)(ii). Paragraphs 

(A) and (B) of § 71.25(a)(3)(ii) further 

address joint applications submitted by 

veterans and servicemembers seeking to 

qualify for PCAFC based on the phased 

expansion of PCAFC eligibility criteria 

in current § 71.20(a)(2)(ii) and (iii) 

(codifying the criteria for the phased 

expansion of PCAFC to qualifying 

veterans and servicemembers who 

incurred or aggravated a serious injury 

in the line of duty before September 11, 

2001). See 85 FR 13376 (March 6, 2020). 

As VA has evaluated all joint 

applications received by VA before 

October 1, 2020, the regulation text 

addressing those joint applications in 

§ 71.25(a)(3)(i) is no longer necessary. 

Similarly, the regulation text found in 

paragraphs (A) and (B) of 

§ 71.25(a)(3)(ii) is also obsolete as VA 

has evaluated all joint applications 

referenced in those paragraphs. 

Therefore, VA proposes to remove the 

current text found in § 71.25(a)(3)(i) and 

(a)(3)(ii)(A) and (B) addressing joint 

applications received by VA before 

October 1, 2020 and to further revise 

these paragraphs as discussed below. 

The application process for PCAFC 

requires evaluation, training, and 

assessments that occur over a period of 

time. Given this, VA expects there will 

be joint applications received by VA 

prior to the effective date of this 

proposed rule for which eligibility 

determinations are still pending on the 

effective date of the rule. Consistent 

with the approach taken in the July 31, 

2020 Final Rule, VA proposes to review 

pending joint applications received by 

VA before the effective date of the final 

rule, if adopted, using the eligibility 

criteria in place on the day the joint 

application was received, unless 

otherwise noted. 85 FR 13375 (March 6, 

2020). Since VA proposes to change 

certain eligibility criteria, including 

certain terms and definitions that would 

affect VA’s review of joint applications 

received, among other things in this 

proposed rule, VA believes it is 

reasonable for VA to continue to 

evaluate joint applications received 

prior to the effective date of any final 

rule adopting amendments to eligibility 

criteria, under the statutes and 

regulations in effect at the time the joint 

application was received by VA. This 

approach would provide transparency 

for applicants and reduce the likelihood 

of inconsistencies or delays when 

rendering a decision as certain 

evaluations may need to be repeated if 

VA were to apply the new criteria to 

joint applications pending on the date a 

final rule becomes effective. While VA 

would seek to mitigate these concerns 

through applying the statutes and 

regulations in effect at the time VA 

received the joint application, VA 

proposes certain exceptions as 

explained below. 

First, VA would not apply the 

definition of joint application as it 

currently appears in § 71.15 if this rule 

is adopted as proposed. Rather VA 

would apply the new proposed 

definition of joint application discussed 

above regarding proposed changes to 

§ 71.15. VA discusses the challenges 

associated with the current definition of 

this term and VA’s rationale for this 

proposed definition above. If adopted, 

VA would apply the proposed 

definition of joint application in 

rendering a determination under the 

regulations in effect from October 1, 

2020, through the effective date of any 

rule changes, thereby eliminating any 

use of the current definition once rule 

changes become final and effective. 

Given the challenges associated with the 

current definition of joint application, 

VA sees no reason to maintain its use 

in evaluating joint applications received 

prior to the effective date of any rule 

changes to the definition of joint 

application. 

Next, VA proposes to make clear how 

VA has addressed the term need for 

supervision, protection, or instruction in 

part 71 since the term was invalidated 

by Veteran Warriors, and how VA 

would continue to address it when 

evaluating joint applications received 

prior to the effective date of any rule 

changes to delete the definition of need 

for supervision, protection, or 

instruction in § 71.15. Specifically, this 

proposed change would codify in 

regulations the criteria used by VA since 

the court’s ruling in Veteran Warriors. 

As explained above, the Veteran 

Warriors decision, issued on March 25, 

2022, invalidated VA’s definition of 

need for supervision, protection, or 

instruction in § 71.15. Since that 

decision, VA no longer applies this term 

or its definition when rendering PCAFC 

decisions. Instead, VA applies the 

statutory criteria found in 38 U.S.C. 

1720G(a)(2)(C)(ii) and (iii). As proposed, 

38 CFR 71.25(a)(3)(ii) would establish in 

VA’s regulations that for PCAFC 

applications received between October 

1, 2020 and the effective date of a final 

rule adopting the amendments to part 

71 in this proposed rule, VA would not 

apply the term need for supervision, 

protection, or instruction and would 

apply the statutory criteria under 38 

U.S.C. 1720G(a)(2)(C)(ii) and (iii) 

instead. 

To incorporate these changes into 38 

CFR 71.25(a)(3), VA proposes to revise 


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§§ 71.25(a)(3)(i)–(ii) and (a)(3)(ii)(A)–(B) 

and add new § 71.25(a)(3)(ii)(B)(1)–(2). 

As proposed, § 71.25(a)(3)(i) would state 

that a joint application under part 71 is 

evaluated in accordance with the 

statutes and regulations in effect on the 

date VA receives such joint application. 

Section 71.25(a)(3)(ii) and (a)(3)(ii)(A)– 

(B) would state notwithstanding 

paragraph (a)(3)(i) of § 71.25, in 

rendering a determination under part 

71, based on the regulations that were 

in effect from October 1, 2020 through 

the effective date of the final rule: (A) 

the definition of ‘‘joint application’’ in 

§ 71.15 that would become effective on 

the effective date of the final rule would 

apply, and (B) the definition of ‘‘need 

for supervision, protection, or 

instruction’’ in § 71.15 does not apply. 

Proposed § 71.25(a)(3)(ii)(B)(1)–(2) 

would explain that in place of the 

definition of ‘‘need for supervision, 

protection, or instruction’’ in § 71.15, 

the following criteria apply: (1) a need 

for supervision or protection based on 

symptoms or residuals of neurological 

or other impairment or injury; or (2) a 

need for regular or extensive instruction 

or supervision without which the ability 

of the veteran to function in daily life 

would be seriously impaired. 

2. Section 71.25(b)—Eligibility To Serve 

as Primary Family Caregiver or 

Secondary Family Caregiver 

Current § 71.25(b) explains the 

requirements to serve as a Primary 

Family Caregiver or Secondary Family 

Caregiver. This includes being either a 

family member or someone who lives 

with the eligible veteran full-time or 

will do so if designated as a Family 

Caregiver. See § 71.25(b)(2)(i) and (ii). 

VA proposes to revise § 71.25(b)(2)(ii) to 

refer to someone who lives with the 

eligible veteran full-time or will do so 

within 120 days of the date VA 

designates the individual as a Family 

Caregiver. This proposed change would 

account for Family Caregiver applicants 

who are not family members of the 

veteran or servicemember and who may 

be living apart from the veteran or 

servicemember during the application 

process but who intend to live with 

them once the Family Caregiver is 

approved and designated. The personal 

care needs of a veteran or 

servicemember applying for PCAFC may 

be provided by a non-family member 

who only intends to live with the 

veteran or servicemember if approved 

and designated as a Family Caregiver, 

since doing so would be a condition of 

participation in PCAFC. Upon approval 

and designation, VA would not expect 

the newly designated Family Caregiver 

to be prepared to move in with the 

veteran or servicemember instantly and 

without advance notice. Rather a period 

of transition may be needed, and 

appropriate, so VA proposes to establish 

a time period for such transition in 

§ 71.25(b)(2)(ii). VA believes a period of 

up to 120 days is an adequate amount 

of time for a Family Caregiver or the 

veteran or servicemember to relocate if 

necessary. This 120-day period also 

aligns with the time period within 

which VA would conduct the first 

wellness contact, which is generally 

conducted 120 days after approval and 

designation. See § 71.40(b)(2). During 

this wellness contact, VA would have 

the opportunity to confirm the nonfamily member Family Caregiver is 

living with the eligible veteran full-time. 

Finally, VA proposes to revise the 

section heading for § 71.25 by replacing 

the word ‘‘Primary’’ with the term 

‘‘Primary Family Caregivers’’. As 

proposed, the section heading would 

state ‘‘Approval and designation of 

Primary Family Caregivers and 

Secondary Family Caregivers’’. VA 

proposes a similar edit to the heading 

and introductory sentence for § 71.25(b), 

which would state ‘‘Eligibility to serve 

as Primary Family Caregiver or 

Secondary Family Caregiver. In order to 

serve as a Primary Family Caregiver or 

Secondary Family Caregiver, the 

applicant must meet all of the following 

requirements’’. If adopted, these 

changes, along with a similar change to 

proposed § 71.25(a)(1), discussed above, 

would be non-substantive technical 

edits to fully reference the term Primary 

Family Caregiver as such term is defined 

in § 71.15. 

F. 38 CFR 71.30 Reassessment of 

Eligible Veterans and Family Caregivers 

Current § 71.30 describes the process 

for reassessments of eligible veterans 

and Family Caregivers under PCAFC. 

VA proposes to amend § 71.30 to revise 

the language regarding the frequency of 

VA-initiated reassessments, incorporate 

a standard by which eligible veterans 

and Primary Family Caregivers can 

request a reassessment and to make 

other technical and conforming 

amendments consistent with other 

changes included in this proposed rule. 

1. Proposed Changes to the Frequency of 

VA-Initiated Reassessments 

VA proposes to revise § 71.30 by 

removing the language that 

reassessments will occur on an annual 

basis. Currently, § 71.30(a) requires that, 

except as provided in paragraphs (b) or 

(c), each eligible veteran and Family 

Caregiver will be reassessed by VA (in 

collaboration with the primary care 

team to the maximum extent 

practicable) on an annual basis to 

determine their continued eligibility for 

participation in PCAFC. The 

reassessment of eligible veterans and 

Family Caregivers under § 71.30 

includes consideration of PCAFC 

eligibility criteria and, if applicable, the 

criteria in § 71.40(c)(4)(i)(A) for 

purposes of the monthly stipend rate. 

See § 71.30(a). 

VA believes it is important to conduct 

reassessments to monitor an eligible 

veteran’s need for personal care services 

and the needs and capabilities of the 

designated Family Caregiver(s), to 

determine if any of these needs have 

changed over time. Reassessments also 

provide Family Caregivers and eligible 

veterans with an opportunity to provide 

feedback to VA, which can inform 

whether additional instruction, 

preparation, training, or technical 

support may be warranted. See 85 FR 

13379 (March 6, 2020). See also 38 

U.S.C. 1720G(a)(3)(D). The reassessment 

process may also result in changes to a 

Primary Family Caregiver’s monthly 

stipend. VA takes the Family Caregiver’s 

assessment of the eligible veteran’s 

needs and limitations into account 

when determining the Primary Family 

Caregiver’s monthly stipend payment, if 

applicable. See 85 FR 13379 (March 6, 

2020). See also 38 U.S.C. 

1720G(a)(3)(C)(iii)(I). 

Reassessments are necessary to ensure 

that individuals participating in PCAFC 

continue to meet eligibility 

requirements. VA proposes to maintain 

reassessments but proposes to remove 

the language in § 71.30(a) which states 

reassessments will occur on an annual 

basis, except as provided under 

paragraphs (b) and (c). VA originally 

proposed this default frequency for 

reassessments under § 71.30(a) because 

it recognized that an eligible veteran’s 

need for personal care services may 

change over time, and the reassessments 

provided an opportunity for VA to 

consider whether an eligible veteran’s 

assessed level of need had increased or 

decreased during the year. 85 FR 13378 

(March 6, 2020). In addition, VA 

believed that requiring annual 

reassessments would create consistency 

across the program and ensure that 

reassessments were generally conducted 

on a standard timeline. Id. at 13378–79. 

While applying the provision of 

annual reassessments provided 

standardization in the frequency of 

reassessments, VA no longer believes 

that annually is the appropriate 

standard cadence to assess continued 

eligibility for PCAFC. Although VA has 

the authority to conduct reassessments 

more or less frequently than annually 

pursuant to current § 71.30(b) and (c), 


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VA believes that this proposal, if 

adopted in a final rule, would provide 

transparency for the public that VA 

intends to no longer maintain a default 

threshold of an annual reassessment. 

VA would continue to provide notice to 

PCAFC participants regarding the 

timeline for future reassessments 

through issuance of VA policy and 

written communication with PCAFC 

participants. VA also would continue 

monitoring the results of reassessments 

over time and use data to inform any 

changes to the cadence of reassessments 

within policy. 

To remove the default frequency of 

conducting annual reassessments, VA 

proposes to revise the first sentence of 

§ 71.30(a) by removing the phrase ‘‘on 

an annual basis’’. VA would also 

remove the phrase ‘‘[e]xcept as provided 

in paragraphs (b) and (c) of this 

section,’’ from the first sentence because 

the exceptions to the annual 

requirement currently set forth in 

§ 71.30(b) and (c) would no longer be 

necessary. VA is proposing additional 

changes to paragraphs (b) and (c), which 

are discussed further below. 

VA also proposes a technical edit to 

clarify that reassessments are completed 

for the eligible veteran and all Family 

Caregivers of the eligible veteran (in 

cases where there is more than one), by 

adding the word ‘‘each’’ before ‘‘Family 

Caregiver’’ in the first sentence of 

proposed § 71.30(a). Thus, as proposed, 

the first sentence of § 71.30(a) would 

state that the eligible veteran and each 

Family Caregiver will be reassessed by 

VA (in collaboration with the primary 

care team to the maximum extent 

practicable) to determine their 

continued eligibility for participation in 

PCAFC under part 71. 

Finally, VA proposes to change the 

second sentence of § 71.30(a) which 

explains that in the context of 

reassessments, VA considers whether 

the eligible veteran is unable to selfsustain in the community for purposes 

of the monthly stipend rate under 

§ 71.40(c)(4)(i)(A). VA proposes to add 

the phrase ‘‘if applicable’’ to the end of 

the second sentence because 

consideration of the monthly stipend 

only occurs as part of a reassessment 

when the eligible veteran and Primary 

Family Caregiver are determined 

eligible for PCAFC. Also, in proposed 

§ 71.30(a), VA would refer to the 

‘‘monthly stipend payment’’ instead of 

the term monthly stipend rate that 

appears in the second sentence of 

current § 71.30(a). The phrase ‘‘monthly 

stipend payment’’ would refer to the 

applicable stipend amount authorized 

under § 71.40(c)(4) and would account 

for the term monthly stipend rate and its 

definition in § 71.15. VA also proposes 

to remove reference to the term unable 

to self-sustain in the community from 

§ 71.30(a), consistent with its proposed 

removal of such term and its definition 

from § 71.15 as discussed above and 

further below in the context of proposed 

changes to § 71.40(c)(4)(i)(A). As 

proposed, the second sentence would 

state that reassessments will include 

consideration of the monthly stipend 

payment under § 71.40(c)(4)(i)(A), if 

applicable. 

2. Proposed Changes To Reassessing 

Eligible Veterans’ Continued Eligibility 

Under § 71.20(a)(3) 

Current § 71.20(a)(3) sets forth one of 

the seven criteria in § 71.20(a) that a 

veteran or servicemember must meet to 

be determined eligible for a Family 

Caregiver under PCAFC, and it requires 

the individual to be ‘‘in need of 

personal care services for a minimum of 

six continuous months’’ based on any 

one of multiple enumerated bases. VA 

proposes to limit when VA would 

reassess an eligible veteran under the 

criteria in § 71.20(a)(3) through 

proposed revisions to § 71.30(b). 

Section 71.30(b) currently states that 

reassessments may occur more 

frequently than annually if a 

determination is made and documented 

by VA that more frequent reassessment 

is appropriate. VA proposes to remove 

the current regulation text found in 

§ 71.30(b) as it would no longer be 

necessary if proposed changes to 

§ 71.30(a) are adopted, as explained 

above. For the reasons explained below, 

VA proposes to add, in its place, a 

standard under which VA would 

reassess an eligible veteran’s continued 

eligibility under § 71.20(a)(3) not more 

frequently than every two years, with 

certain exceptions. 

VA reviewed findings from 

reassessments conducted pursuant to 

§ 71.30(a) for participants that joined 

PCAFC on or after October 1, 2020. 

Since implementing annual 

reassessments pursuant to § 71.30(a), 

VA has found the majority of 

reassessments conducted have 

identified minimal changes in an 

eligible veteran’s need for personal care 

services under § 71.20(a)(3) since their 

assessment in the previous year. As 

PCAFC is designed for eligible veterans 

with moderate and severe needs (85 FR 

46228 (July 31, 2020)) who are in need 

of personal care services for at least six 

continuous months (§ 71.20(a)(3)), VA 

believes it is reasonable to expect there 

would be limited change in the 

functions and needs of the eligible 

veterans within a 12-month period. 

Additionally, when reassessments 

require the evaluation of § 71.20(a)(3), 

the clinical evaluations associated with 

§ 71.20(a)(3) criteria may be lengthy and 

may be burdensome to veterans and 

servicemembers. In proposing a 

standard for reassessing an eligible 

veteran’s continued eligibility under 

§ 71.20(a)(3) of not more frequently than 

every two years, VA would extend the 

time period between such evaluations 

while still providing flexibility for VA 

to continue to monitor the outcome of 

such reassessments and extend the 

cadence beyond every two years, as 

appropriate, to ensure that individuals 

participating in PCAFC continue to 

meet eligibility requirements and have 

access to the appropriate level of 

supports. VA believes proposed changes 

to § 71.30(b) would reduce 

reassessments that may be unnecessary 

and would do so in a standardized 

manner. Given this, VA believes 

reassessment of an eligible veteran’s 

continued eligibility under § 71.20(a)(3) 

not more frequently than every two 

years would be reasonable and 

appropriate. 

Notwithstanding these changes, 

certain instances exist when VA would 

need to reassess an eligible veteran 

under § 71.30(a)(3) on a more frequent 

basis than every two years. To address 

these situations, VA proposes to include 

two exceptions to the ‘‘not more 

frequently than every two years’’ 

provision in proposed § 71.30(b). 

The first exception would apply when 

an eligible veteran or Primary Family 

Caregiver requests a reassessment 

pursuant to proposed changes to 

§ 71.30(c). To be responsive to the needs 

of veterans and Primary Family 

Caregivers, VA would conduct 

reassessments upon request, even if it 

has been less than two years since the 

previous evaluation of the eligible 

veteran’s eligibility under § 71.30(a)(3). 

More details about how reassessments 

could be requested under proposed 

§ 71.30(c) and how those requests would 

be addressed are outlined further below. 

The second exception would apply 

when a reassessment of an eligible 

veteran’s continued eligibility under 

§ 71.20(a)(3) is necessary for VA to 

evaluate a Family Caregiver’s ability to 

carry out specific personal care services, 

core competencies, or additional care 

requirements. Per 38 U.S.C. 

1720G(a)(3)(D), the Secretary is required 

to ‘‘periodically evaluate . . . the skills 

of the family caregiver of such veteran 

to determine if additional instruction, 

preparation, training, or technical 

support’’ is needed. In these instances, 

an evaluation of the needs of the eligible 

veteran pursuant to proposed 38 CFR 

71.20(a)(3) may be necessary to 


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determine whether a Family Caregiver 

has the ability to carry out the specific 

personal care services, core 

competencies, and additional care 

requirements described in § 71.25(c)(2). 

This second proposed exception in 

§ 71.30(b) would provide VA with the 

ability to review the quality of personal 

care services being provided to an 

eligible veteran in the context of a 

reassessment and take corrective action 

as applicable. See 38 U.S.C. 

1720G(a)(9)(C)(i)–(ii). 

Thus, as proposed, § 71.30(b) would 

state that except as provided in 

paragraph (c) of § 71.30, VA will 

reassess an eligible veteran’s continued 

eligibility under § 71.20(a)(3) not more 

frequently than every two years unless 

such a reassessment is necessary for VA 

to evaluate the Family Caregiver’s 

ability to carry out specific personal 

care services, core competencies, or 

additional care requirements. 

3. Proposed Changes To Address 

Requests for Reassessments 

Currently, § 71.30(c) states that 

reassessments may occur on a less than 

annual basis if a determination is made 

and documented by VA that an annual 

reassessment is unnecessary. As noted 

above, VA proposes to remove the 

reference to an annual reassessment 

frequency under § 71.30(a), and as a 

result, VA would also remove the 

exception found in § 71.30(c). VA 

proposes to further revise § 71.30(c) by 

adding a new provision explaining the 

option for eligible veterans and Primary 

Family Caregivers to request 

reassessment at any time through a 

written request. 

When eligible veterans and Family 

Caregivers have specifically requested 

reassessments before an annual 

reassessment was due, VA has 

considered such requests when making 

a determination under current § 71.30(b) 

that a more frequent than annual 

reassessment is appropriate. For 

example, a Primary Family Caregiver 

may find they are providing physical 

assistance with more ADL than they 

were at the time they were designated 

as the Primary Family Caregiver. In this 

case, the Primary Family Caregiver may 

request a reassessment, in part, because 

they believe they may qualify for a 

higher monthly stipend. 

To make clear the opportunity for an 

eligible Veteran or Primary Family 

Caregiver to request a reassessment, VA 

proposes to establish procedural 

requirements for these types of requests 

in proposed § 71.30(c). As proposed, 

§ 71.30(c) would state that 

reassessments may occur when an 

eligible veteran or a Primary Family 

Caregiver of an eligible veteran submits 

to VA a written request indicating that 

a reassessment is requested, and such 

request contains the signature of the 

eligible veteran or the Primary Family 

Caregiver. In accordance with the 

‘‘[e]xcept as provided in paragraph (c)’’ 

clause in proposed § 71.30(b), 

reassessments requested under 

proposed § 71.30(c) would include a 

reassessment of an eligible veteran’s 

continued eligibility under § 71.20(a)(3). 

For reassessment requests under 

proposed § 71.30(c), VA proposes not to 

mandate use of a specific standardized 

form because VA would like to provide 

flexibility to eligible veterans and 

Primary Family Caregivers. However, 

VA does propose to require requests be 

submitted to VA in writing, indicate the 

nature of the request (that is, a request 

for reassessment), and contain the 

signature of the eligible veteran or the 

Primary Family Caregiver of an eligible 

veteran. These requirements would 

ensure that: (1) the request is from an 

individual authorized to make such a 

request under proposed § 71.30(c) (that 

is, an eligible veteran or Primary Family 

Caregiver), (2) VA has enough 

information to associate the request 

with the correct eligible veteran, and (3) 

VA can understand the nature of the 

request and intent of the requestor. If 

verbal requests for reassessment are 

made, VA would inform eligible 

veterans and Primary Family Caregivers 

of the process for submitting a written 

request for reassessment. 

Additionally, requiring a written 

request for reassessment would provide 

VA with documentation of the request 

and VA could formally track receipt of 

such request. This would be important 

because if the requested reassessment 

results in an increase in the monthly 

stipend payment pursuant to a 

determination under proposed 

§ 71.40(c)(4)(i)(A)(2), the date the 

written request under proposed 

§ 71.30(c) is received by VA could be 

the effective date of the increase under 

proposed § 71.40(c)(4)(ii)(C)(1)(ii). This 

is discussed further below regarding 

proposed changes to § 71.40 under 

heading ‘‘G. 38 CFR 71.40 Caregiver 

benefits’’. In implementing this 

requirement for a written request in 

proposed § 71.30(c), if adopted in a final 

rule, VA would provide further written 

guidance and instructions to Primary 

Family Caregivers and eligible veterans 

about how and where such requests 

should be submitted. 

VA does not propose to include 

reassessment requests from Secondary 

Family Caregivers in proposed 

§ 71.30(c). This is because VA does not 

believe individuals other than the 

eligible veteran or Primary Family 

Caregiver should be able to initiate a 

process that could uniquely impact the 

benefits provided to the Primary Family 

Caregiver. Although certain PCAFC 

benefits are provided to both Primary 

Family Caregivers and Secondary 

Family Caregivers, others are provided 

only to Primary Family Caregivers, 

including the monthly stipend. 

Additionally, Secondary Family 

Caregivers who would like to request 

additional supports or services do not 

need to request a reassessment under 

§ 71.30 to receive such supports or 

services. All Family Caregivers who are 

seeking additional training, education or 

other PCAFC assistance, can do so 

without requesting a reassessment. For 

example, a Family Caregiver who 

wishes to engage with a peer support 

mentor under § 71.40(b)(5), can make 

this request at any time to the local 

Caregiver Support Program (CSP) Team. 

Similarly, a Family Caregiver who is 

seeking other counseling services under 

§ 71.40(b)(5), can make such a request at 

any time, including during wellness 

contacts. An increase in the monthly 

stipend level for Primary Family 

Caregivers under § 71.40(c)(4)(i)(A), 

however, can only be provided as a 

result of a reassessment which includes 

consideration of an eligible veteran’s 

need for personal care services pursuant 

to § 71.20(a)(3). For this reason, a 

Primary Family Caregiver may wish to 

request a reassessment to be considered 

for the higher stipend level. Therefore, 

under proposed § 71.30(c), VA would 

conduct a requested reassessment only 

if submitted in writing by the eligible 

veteran or Primary Family Caregiver 

(and that meets the other requirements 

previously described). 

Although Secondary Family 

Caregivers would not be included in 

proposed § 71.30(c), when a request for 

reassessment is received from the 

eligible veteran or Primary Family 

Caregiver under such paragraph, the 

reassessment would apply to the eligible 

veteran and all Family Caregivers of the 

eligible veteran. This is because 

reassessments initiated based on the 

request of an eligible veteran or Primary 

Family Caregiver, would be carried out 

using the same processes in § 71.30 for 

reassessments initiated by VA. In 

completing reassessments under § 71.30, 

VA determines the eligibility of the 

eligible veteran and each Family 

Caregiver, which necessarily requires 

consideration of whether each Family 

Caregiver, including Secondary Family 

Caregivers, has the ability to carry out 

the specific personal care services 

required by the eligible veteran. 


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4. Proposed Changes to Legacy 

Reassessments 

Current paragraph (e)(1) of § 71.30 

requires VA to conduct reassessments of 

members of the legacy cohort within the 

five-year period beginning on October 1, 

2020 to determine whether the eligible 

veteran meets the requirements of 

§ 71.20(a). If the eligible veteran meets 

the requirements of § 71.20(a), the 

reassessment will take into 

consideration whether the eligible 

veteran is unable to self-sustain in the 

community for purposes of the monthly 

stipend rate under § 71.40(c)(4)(i)(A). 

See § 71.30(e)(1). 

For reasons discussed earlier in this 

rulemaking, VA proposes to extend the 

transition period for continued 

eligibility of members of the legacy 

cohort and the timeframe for completing 

reassessments of this cohort to a date 

that is 18 months after the effective date 

of a final rule under this rulemaking. 

The following conforming amendments 

to § 71.30(e) are also proposed to extend 

the timeframe for conducting legacy 

reassessments. 

First, VA proposes to add 

introduction text to paragraph (e) that 

would describe a legacy reassessment. 

Currently, paragraph (e)(1) states the 

reassessment will be done in 

collaboration with a primary care team 

to the maximum extent practicable, may 

include a visit to the eligible veteran’s 

home, and may include consideration of 

the monthly stipend. These provisions 

mirror the requirements for the 

reassessment under current and 

proposed § 71.30(a). To provide clarity, 

VA proposes to remove this language 

from paragraph (e)(1) and would instead 

state in the introduction text for 

paragraph (e) that a legacy reassessment 

is a reassessment to determine 

continued eligibility under § 71.20(a) for 

legacy applicants and legacy 

participants that is conducted in 

accordance with the requirements of 

§ 71.30(a). 

VA would further revise paragraph 

(e)(1) to address the timeframe for 

completing legacy reassessments. VA 

proposes to remove the phrase ‘‘fiveyear period beginning on October 1, 

2020’’ and add in its place, the phrase 

‘‘period beginning on October 1, 2020 

and ending on [18 months after 

EFFECTIVE DATE OF FINAL RULE]’’. 

VA would also include the language 

currently found in paragraph (e)(2) 

regarding exceptions to this rule. 

Currently, paragraph (e)(2) states that 

notwithstanding paragraph (e)(1), a 

reassessment will not be completed 

under paragraph (e)(1) if at some point 

before a reassessment is completed 

during the five-year period beginning on 

October 1, 2020 the individual no longer 

meets the requirements of § 71.20(b) or 

(c). VA proposes to move this language 

to paragraph (e)(1) with minor 

conforming changes to remove the cross 

reference to paragraph (e)(1) and 

reference to the ‘‘five-year’’ period. 

As proposed, paragraph (e)(1) would 

state if the eligible veteran meets the 

requirements of § 71.20(b) or (c) (i.e., is 

a legacy participant or a legacy 

applicant), VA will conduct a legacy 

reassessment for the eligible veteran and 

each Family Caregiver within the time 

period beginning on October 1, 2020 

and ending on [18 months after 

EFFECTIVE DATE OF FINAL RULE]. It 

would also state that notwithstanding 

the previous sentence, a legacy 

reassessment will not be completed if at 

some point before such reassessment is 

completed, the eligible veteran no 

longer meets the requirements of 

§ 71.20(b) or (c). 

Finally, VA proposes to revise 

paragraph (e)(2) to address monthly 

stipend payments. As part of the legacy 

reassessment, for eligible veterans who 

meet the requirements of § 71.20(a), VA 

considers the monthly stipend payment 

under § 71.40(c)(4)(i)(A) and eligibility 

for a one-time retroactive monthly 

stipend payment under current 

§ 71.40(c)(4)(ii)(C)(2)(i). This one-time 

retroactive stipend payment is not 

currently addressed in § 71.30(e). VA 

believes including a reference to the 

regulations that govern the one-time 

retroactive stipend payment within 

§ 71.30(e) would assist the reader in 

understanding this facet of the legacy 

reassessment. VA proposes to relocate 

the provisions currently found in 

§ 71.40(c)(4)(ii)(C)(2)(i) to 

§ 71.40(c)(4)(iii), therefore, this latter 

citation is proposed to be included in 

paragraph (e)(2). Accordingly, VA 

proposes to revise paragraph (e)(2) to 

state, if the eligible veteran meets the 

requirements of § 71.20(a), the legacy 

reassessment will include consideration 

of the monthly stipend payment under 

§ 71.40(c)(4)(i)(A) and whether the 

Primary Family Caregiver is eligible for 

a one-time retroactive stipend payment 

pursuant to § 71.40(c)(4)(iii). 

5. Proposed Technical Edits To Conform 

With Proposed Changes 

VA proposes to add paragraph 

headings to paragraphs (a) through (e) of 

§ 71.30 to assist the reader. If adopted, 

the heading for paragraph (a) would 

state ‘‘General.’’ The heading for 

paragraph (b) would state ‘‘Frequency of 

reassessment.’’ The heading for 

paragraph (c) would state ‘‘Requests for 

reassessment.’’ The heading for 

paragraph (d) would state ‘‘Required 

participation’’ and the heading for 

paragraph (e) would state ‘‘Legacy 

reassessments.’’ 

VA solicits comments from the public 

on all aspects of this proposed rule. In 

particular, VA asks the following 

questions on specific aspects of this 

proposal. 

1. Other than the changes proposed, 

what changes, if any, to the frequency 

of reassessments should VA consider 

and why? 

2. What models or standards are used 

by programs other than PCAFC to 

determine continued eligibility and 

benefits that could inform the 

appropriate frequency for PCAFC 

reassessments? 

G. 38 CFR 71.40 Caregiver Benefits 

Section 71.40 describes the benefits 

available to General Caregivers, 

Secondary Family Caregivers, and 

Primary Family Caregivers. Section 

71.40(c) explains the benefits available 

to Primary Family Caregivers, which 

includes a monthly stipend payment. 

See § 71.40(c)(4). VA proposes changes 

to the eligibility requirements for the 

higher stipend level and provisions 

regarding adjustments to monthly 

stipend payments. 

1. Stipend Level Criteria 

Under current § 71.40(c)(4)(i)(A)(1), 

the Primary Family Caregiver’s monthly 

stipend is calculated by multiplying the 

monthly stipend rate (as that term is 

defined in § 71.15) by 0.625. However, 

if VA determines the eligible veteran is 

unable to self-sustain in the community, 

the monthly stipend payment is 

calculated by multiplying the monthly 

stipend rate by 1.00. See 

§ 71.40(c)(4)(i)(A)(2). These two levels 

for the monthly stipend payment were 

intended to align with VA’s aim at 

targeting PCAFC to those veterans and 

servicemembers with moderate and 

severe needs, with the higher stipend 

level provided to Primary Family 

Caregivers of eligible veterans with 

severe needs. See 85 FR 13383 (March 

6, 2020). Thus, the Primary Family 

Caregiver of an eligible veteran who is 

determined to be unable to self-sustain 

in the community would be eligible for 

the higher stipend level under 

§ 71.40(c)(4)(i)(A)(2). 

Currently, unable to self-sustain in 

the community is defined in § 71.15 to 

mean that an eligible veteran (1) 

requires personal care services each 

time he or she completes three or more 

of the seven activities of daily living 

(ADL) listed in the definition of an 

inability to perform an activity of daily 

living in § 71.15, and is fully dependent 


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on a caregiver to complete such ADLs; 

or (2) has a need for supervision, 

protection, or instruction on a 

continuous basis. Although the 

definition of unable to self-sustain in 

the community includes the term need 

for supervision, protection, or 

instruction, following the Veteran 

Warriors decision, VA no longer applies 

that term and instead has applied the 

statutory language in 38 U.S.C. 

1720G(a)(2)(C)(ii) and (iii) in place of 

the term need for supervision, 

protection, or instruction when 

determining whether a veteran is unable 

to self-sustain in the community as 

explained below. 

a. Determining the Monthly Stipend 

Payment Following the Veteran 

Warriors Decision 

As discussed earlier in this 

rulemaking regarding VA’s proposed 

removal of the term and definition of 

need for supervision, protection, or 

instruction from § 71.15 and the 

proposed changes to § 71.20(a)(3), the 

U.S. Court of Appeals for the Federal 

Circuit in Veteran Warriors invalidated 

VA’s definition of the term need for 

supervision, protection, or instruction. 

Notably, the court dismissed or denied 

the petition for review with respect to 

the other regulatory provisions 

challenged, including the definition of 

unable to self-sustain in the community. 

See Veteran Warriors at 1348–51. 

However, because the term need for 

supervision, protection, or instruction is 

included in the definition of unable to 

self-sustain in the community, following 

the court’s decision, VA has applied the 

criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) 

and (iii) in place of the term need for 

supervision, protection, or instruction, 

when making determinations about 

whether an eligible veteran is unable to 

self-sustain in the community for 

purposes of determining the monthly 

stipend payment. Following the court’s 

decision, a Primary Family Caregiver is 

eligible for the higher stipend level if 

the eligible veteran has a need for 

supervision or protection based on 

symptoms or residuals of neurological 

or other impairment or injury on a 

continuous basis or a need for regular or 

extensive instruction or supervision 

without which the ability of the veteran 

to function in daily life would be 

seriously impaired on a continuous 

basis. 

b. Proposed Changes to the Higher 

Stipend Level Criteria 

VA proposes to revise the criteria for 

determining the monthly stipend 

payment in § 71.40(c)(4)(i)(A)(2). In 

proposing to amend 

§ 71.40(c)(4)(i)(A)(2), VA would 

maintain the methodology for 

calculating the monthly stipend rate, 

such that the higher stipend level would 

continue to be calculated by multiplying 

the monthly stipend rate (as that term is 

defined in § 71.15) by 1.00. However, 

VA would revise the criteria under 

which a Primary Family Caregiver 

would qualify for the higher stipend 

level. Specifically, VA proposes to 

remove the term unable to self-sustain 

in the community from 

§ 71.40(c)(4)(i)(A)(2) and add multiple 

new bases upon which a Primary 

Family Caregiver may be eligible for the 

higher stipend level. VA’s new 

proposed bases for the higher stipend 

level would align with the proposed 

bases in § 71.20(a)(3) upon which a 

veteran or servicemember may be 

determined to be in need of personal 

care services. 

Instead of proposing to update the 

current definition of unable to selfsustain in the community in § 71.15 to 

reflect VA’s proposed criteria for 

determining the higher stipend level, 

VA proposes removing the term unable 

to self-sustain in the community and its 

definition from § 71.15 and adding the 

criteria for determining the higher 

stipend level in proposed 

§ 71.40(c)(4)(i)(A)(2). This approach is 

consistent with VA’s proposed changes 

to § 71.15 and § 71.20(a)(3), under 

which VA would remove the terms 

inability to perform an ADL and need 

for supervision, protection, or 

instruction, and their definitions from 

§ 71.15 and add the bases for being in 

need of personal care services into 

proposed § 71.20(a)(3)(i) through (iii) 

rather than referring to criteria 

contained mostly in terms and 

definitions found in § 71.15. 

In proposed § 71.40(c)(4)(i)(A)(2), VA 

would explain how Primary Family 

Caregivers could be eligible for the 

higher stipend level for each basis upon 

which an individual may be determined 

to be in need of personal care services 

consistent with 38 U.S.C. 1720G(a)(2)(C) 

and proposed 38 CFR 71.20(a)(3). VA 

believes the changes VA proposes to 38 

CFR 71.40(c)(4)(i)(A)(2), as explained in 

more detail in this section, would 

improve clarity and consistency when 

determining eligibility for the higher 

stipend level. They would also ensure 

each basis upon which an eligible 

veteran may be determined to be in 

need of personal care services under 

proposed 38 CFR 71.20(a)(3) includes a 

related basis by which a Primary Family 

Caregiver may be eligible for the higher 

stipend level. If these proposed changes 

are adopted, the Primary Family 

Caregiver could be eligible for the 

higher stipend level based on any of the 

criteria in proposed 

§ 71.40(c)(4)(i)(A)(2), just as eligible 

veterans could meet more than one of 

the bases in proposed § 71.20(a)(3)(i) 

through (iii). 

Additionally, in contrast to the 

current definition of unable to selfsustain in the community, which refers 

exclusively to the needs of the eligible 

veteran, the criteria in proposed 

§ 71.40(c)(4)(i)(A)(2) would be phrased 

to reflect both the eligible veteran’s 

needs as well as the amount and degree 

of personal care services the Primary 

Family Caregiver provides to the eligible 

veteran. This change would ensure VA’s 

regulations are reflective of the statutory 

requirement that the stipend be ‘‘based 

upon the amount and degree of personal 

care services provided.’’ 38 U.S.C. 

1720G(a)(3)(C)(i). VA recognizes that the 

Primary Family Caregiver may not 

provide all the personal care services 

required by an eligible veteran, as the 

eligible veteran’s care needs may also be 

met, in part, by Secondary Family 

Caregivers or through other services and 

supports. However, because it is the 

Primary Family Caregiver who receives 

the stipend payment, VA believes it is 

reasonable to interpret the phrase 

‘‘personal care services provided’’ in 38 

U.S.C. 1720G(a)(3)(C)(i) to refer to those 

personal care services provided by the 

Primary Family Caregiver. 

VA does not believe it would be 

reasonable to base the monthly stipend 

payment for the Primary Family 

Caregiver upon the amount and degree 

of personal care services provided by 

individuals and entities other than the 

Primary Family Caregiver. Under 38 

U.S.C. 1720G(a)(3)(C)(ii), the Secretary 

is required to ensure, to the extent 

practicable, that ‘‘the schedule required 

by clause (i) specifies that the amount 

of the monthly personal caregiver 

stipend provided to a primary provider 

of personal care services for the 

provision of personal care services to an 

eligible veteran is not less than the 

monthly amount a commercial home 

health care entity would pay an 

individual in the geographic area of the 

eligible veteran to provide equivalent 

personal care services to the eligible 

veteran.’’ By referring to ‘‘an 

individual’’ providing ‘‘equivalent 

personal care services to the eligible 

veteran’’, this requirement supports 

VA’s proposed interpretation that the 

monthly stipend payment is based on 

the personal care services that only the 

Primary Family Caregiver provides to 

the eligible veteran and not the personal 

care services provided by another 

individual or entity. By referring to the 

required personal care services that the 


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eligible veteran receives from the 

Primary Family Caregiver, proposed 38 

CFR 71.40(c)(4)(i)(A)(2) would make 

clear that the amount of the monthly 

stipend is based upon the amount and 

degree of personal care services that the 

Primary Family Caregiver provides to 

the eligible veteran. 

In addition, VA proposes to add 

language to proposed paragraph 

(c)(4)(i)(A)(2) as a technical edit to 

clarify that the proposed criteria in 

paragraph (c)(4)(i)(A)(2) would apply 

notwithstanding paragraph 

(c)(4)(i)(A)(1). Currently, and under 

VA’s proposed revisions to 

§ 71.40(c)(4)(i)(A), a Primary Family 

Caregiver’s monthly stipend payment is 

calculated under paragraph 

(c)(4)(i)(A)(1) (by multiplying the 

monthly stipend rate by 0.625) unless 

the criteria in paragraph (c)(4)(i)(A)(2) 

are met, in which case the Primary 

Family Caregiver’s monthly stipend 

payment is calculated under paragraph 

(c)(4)(i)(A)(2) (by multiplying the 

monthly stipend rate by 1.00). VA also 

proposes to add a heading to paragraph 

§ 71.40(c)(4)(i)(A)(1) which states ‘‘Level 

1 Stipend’’ and a heading to paragraph 

§ 71.40(c)(4)(i)(A)(2) that states ‘‘Level 2 

Stipend’’ to further distinguish the two 

different stipend levels described in 

these paragraphs. 

As proposed, § 71.40(c)(4)(i)(A)(2) 

would state that notwithstanding 

paragraph (c)(4)(i)(A)(1) of § 71.40, the 

Primary Family Caregiver’s monthly 

stipend payment is calculated by 

multiplying the monthly stipend rate by 

1.00 if VA determines that: (i) the 

eligible veteran typically requires 

personal care services to complete three 

or more distinct ADL, and for each 

distinct ADL, the eligible veteran either 

is substantially dependent on the 

Primary Family Caregiver for hands-on 

assistance or requires extensive 

instruction or supervision from the 

Primary Family Caregiver; or (ii) the 

eligible veteran has a frequent need for 

supervision or protection on a 

continuous basis from the Primary 

Family Caregiver based on the eligible 

veteran’s symptoms or residuals of 

neurological or other impairment or 

injury. 

The meaning of the term typically 

requires throughout proposed 

§ 71.40(c)(4)(i)(A)(2) would be 

consistent with its meaning in proposed 

§ 71.20(a)(3)(i) and (iii) based on the 

proposed definition in § 71.15 (that is, 

typically requires would mean a clinical 

determination which refers to that 

which is generally necessary). Please see 

the discussion of proposed changes to 

§§ 71.15 and 71.20(a)(3)(i) and (iii) for 

additional information on the term 

typically requires. VA further explains 

the multiple bases for eligibility for the 

higher stipend level that VA is 

proposing under the two criterion in 

proposed § 71.40(c)(4)(i)(A)(2)(i) and (ii), 

as well as its proposed use of the term 

typically requires in 

§ 71.40(c)(4)(i)(A)(2)(i), in greater detail 

below. 

i. First Proposed Basis for the Higher 

Stipend Level Payment 

Under this proposal, 

§ 71.40(c)(4)(i)(A)(2)(i) would set forth 

the first proposed basis upon which a 

Primary Family Caregiver would be 

eligible for the higher stipend level 

payment and would refer to a VA 

determination that the eligible veteran 

typically requires personal care services 

to complete three or more distinct ADL, 

and for each distinct ADL, the eligible 

veteran is substantially dependent on 

the Primary Family Caregiver for handson assistance. 

If adopted, this would amend the 

standard applied under the first basis in 

the current definition of unable to selfsustain in the community (that is, an 

eligible veteran requires personal care 

services each time he or she completes 

three or more of the seven ADL listed in 

the definition of an inability to perform 

an activity of daily living in § 71.15 and 

is fully dependent on a caregiver to 

complete such ADL). That basis was 

intended to establish the higher stipend 

level for the Primary Family Caregiver 

of an eligible veteran with physical 

impairment. 85 FR 13383 (March 6, 

2020). In addition, this proposed basis 

in § 71.40(c)(4)(i)(A)(2)(i) would align 

with the eligibility criteria in proposed 

38 CFR 71.20(a)(3)(i) (that is, the 

individual typically requires hands-on 

assistance to complete one or more 

ADL). It would therefore account for 

those Primary Family Caregivers of 

eligible veterans who are in need of 

personal care services based on an 

inability to perform an ADL (38 U.S.C. 

1720G(a)(2)(C)(i)) and who have severe 

needs. 

This first proposed basis for the 

higher stipend level payment would be 

consistent with the requirement in 38 

U.S.C. 1720G(a)(3)(C)(i) to base the 

monthly stipend payment upon the 

amount and degree of personal care 

services provided because it would refer 

to three or more distinct ADL and it 

would include a requirement that the 

eligible veteran be substantially 

dependent upon the Primary Family 

Caregiver. The proposal to require three 

or more distinct ADL would address the 

amount of personal care services 

provided by the Primary Family 

Caregiver because a greater amount of 

personal care services would be 

provided if an eligible veteran requires 

hands-on assistance to complete three or 

more distinct ADL versus to complete 

fewer than three ADL. Notably, the 

eligibility criterion in proposed 

§ 71.20(a)(3)(i) refers to the individual 

typically requiring hands-on assistance 

to complete just one or more ADL. In 

addition, the proposed requirement that 

the eligible veteran be substantially 

dependent on the Primary Family 

Caregiver would address the degree of 

personal care services provided. As 

discussed below, if adopted in a final 

rule, VA would apply the term 

‘‘substantially dependent’’ in proposed 

§ 71.40(c)(4)(i)(A)(2)(i) to mean that the 

Primary Family Caregiver puts forth 

more than half the effort when 

providing hands-on assistance to the 

eligible veteran to complete three or 

more distinct ADL. 

As is the case in the first basis of the 

current definition of unable to selfsustain in the community, proposed 

§ 71.40(c)(4)(i)(A)(2)(i) would refer to 

the eligible veteran requiring personal 

care services to complete three or more 

ADL, but VA would specify that the 

personal care services under this basis 

must be required for three distinct ADL 

(as that term is proposed to be defined 

in § 71.15). VA proposes to use the term 

‘‘distinct’’ in front of ‘‘ADL’’ to account 

for VA’s proposal in new 

§ 71.40(c)(4)(i)(A)(2)(i) to include more 

than one basis upon which a Primary 

Family Caregiver could be eligible for 

the higher stipend level related to an 

eligible veteran’s need for personal care 

services to complete ADL. As discussed 

separately below, proposed 

§ 71.40(c)(4)(i)(A)(2)(i) would allow for a 

combination of two different types of 

personal care services to complete ADL 

(that is, if the eligible veteran either is 

substantially dependent on the Primary 

Family Caregiver for hands-on 

assistance or requires extensive 

instruction or supervision from the 

Primary Family Caregiver), as long as 

the criteria are met with respect to the 

completion of three or more distinct 

ADL. VA’s proposal to refer to ‘‘three or 

more distinct ADL’’ would clarify that 

an eligible veteran who requires both 

types of personal care services to 

perform the same ADL, would not be 

considered to require personal care 

services to complete two ADL. This is 

discussed in more detail below under 

the heading referring to VA’s third 

proposed basis for the higher stipend 

level. 

Consistent with the discussion of 

proposed § 71.20(a)(3)(i), VA would not 

require in proposed 

§ 71.40(c)(4)(i)(A)(2)(i) that personal 


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18 VA stated ‘‘[t]o be fully dependent means the 

eligible veteran requires the assistance of another to 

perform each step or task related to completing the 

ADL’’ and ‘‘[w]hile dependence is considered along 

a spectrum, fully dependent is at the top of the 

spectrum.’’ 85 FR 46274 (July 31, 2020). 

19See Outcome and Assessment Information Set 

OASIS–E Manual, effective January 1, 2023, page 

126, Centers for Medicare and Medicaid Services, 

available at https://www.cms.gov/files/document/ 

oasis-e-manual-final.pdf (last visited Feb. 8, 2024). 20 Inpatient Rehabilitation Facility—Patient 

Assessment Instrument, Version 3.0, effective 

October 1, 2019, page 7, Centers for Medicare and 

Medicaid Services, available at https://

www.hhs.gov/guidance/sites/default/files/hhsguidance-documents/Proposed_IRFPAI_Version3_

Eff_20191001.pdf (last visited Feb. 8, 2024) (defines 

Substantial/maximal assistance as ‘‘Helper does 

MORE THAN HALF the effort. Helper lifts or holds 

trunk or limbs and provides more than half the 

effort.’’ (Emphasis in original.)); Section GG SelfCare (Activities of Daily Living) and Mobility Items, 

2022, pages 1–3, American Occupational Therapy 

Association, available at https://www.aota.org/-/ 

media/Corporate/Files/Practice/Manage/ 

Documentation/Self-Care-Mobility-Section-GGItems-Assessment-Template.pdf (last visited Feb. 8, 

2024) (defines Substantial/maximal assistance as 

‘‘Helper does MORE THAN HALF the effort. Helper 

lifts or holds trunk or limbs and provides more than 

half the effort.’’ (Emphasis in original.)). 

care services be required ‘‘each time’’ 

the eligible veteran completes three or 

more distinct ADL. While the first basis 

of the current definition of unable to 

self-sustain in the community requires 

personal care services be required ‘‘each 

time’’ the eligible veteran completes 

three or more ADL, VA proposes not to 

include such requirement in proposed 

§ 71.40(c)(4)(i)(A)(2)(i). VA’s rationale 

for proposing to remove the ‘‘each time’’ 

requirement is explained in the 

discussion on proposed § 71.20(a)(3)(i). 

Additionally, while the first basis in 

the current definition of unable to selfsustain in the community refers to an 

eligible veteran being ‘‘fully dependent’’ 

on a caregiver to complete three or more 

ADL, the first new basis under proposed 

§ 71.40(c)(4)(i)(A)(2)(i) would require 

that an eligible veteran be ‘‘substantially 

dependent’’ on the Primary Family 

Caregiver for hands-on assistance. While 

this proposed change from ‘‘fully 

dependent’’ to ‘‘substantially 

dependent’’ would be a change in 

terminology, it would be consistent with 

how VA has applied the first basis in 

the current definition of unable to selfsustain in the community since 2020. 

Since that time, VA has not required the 

eligible veteran to have complete 

dependence on a caregiver to perform 

three or more ADL, as the term ‘‘fully 

dependent’’ may imply and how VA 

described this term in its July 31, 2020 

Final Rule.18 This is because after 

publication of VA’s July 31, 2020 Final 

Rule, and prior to implementation, VA 

determined such an approach would 

have been unduly restrictive. 

Dependence occurs on a spectrum based 

on degrees of need. Upon further review 

of the requirement to be ‘‘fully 

dependent’’ on the Primary Family 

Caregiver, VA found that this would 

require that an eligible veteran must be 

at the very highest end of the spectrum 

of a degree of need, such that no greater 

degree of need is possible. It is not, and 

has never been, the intent of VA to 

require such a standard. Rather, since 

implementing the first basis in the 

definition of unable to self-sustain in 

the community, it has been and 

continues to be VA’s practice that 

individuals who require a degree of 

personal care services that is of a lesser 

degree than that of the very highest 

degree could and do meet the definition. 

VA currently applies the meaning of 

‘‘substantially’’ in place of ‘‘fully’’ under 

the first basis in the definition of unable 

to self-sustain in the community as VA 

believes ‘‘substantially’’ more accurately 

reflects the level of dependence VA 

requires for a Primary Family Caregiver 

to be eligible for the higher stipend 

level. The term ‘‘substantially 

dependent’’ is commonly used in the 

health care field and is generally 

understood to mean an individual 

provides more than half the effort, when 

used in the context of assessing levels 

of assistance provided to an individual 

to complete daily activities. For 

example, CMS uses the term 

‘‘substantial/maximal assistance’’ when 

determining the type and level of 

assistance required for a patient to 

complete an activity in a post-acute care 

setting.19 Specifically, CMS and other 

organizations define the term 

‘‘substantial/maximal assistance’’ to 

mean a helper does more than half the 

effort.20 VA proposes to interpret the 

proposed term ‘‘substantially 

dependent’’ in a similar manner such 

that, if VA’s proposed changes to 

§ 71.40(c)(4)(i)(A)(2)(i) are adopted, 

‘‘substantially dependent’’ would be 

applied to mean that the Primary Family 

Caregiver puts forth more than half the 

effort when providing hands-on 

assistance to an eligible veteran to 

complete three or more distinct ADL. 

An eligible veteran who is substantially 

dependent on the Primary Family 

Caregiver for hands-on assistance with 

an ADL (that is, who requires a Primary 

Family Caregiver to perform more than 

half the effort to complete an ADL), 

would require a higher degree of 

personal care services than an eligible 

veteran whose Primary Family Caregiver 

provides less than half the effort to 

complete ADL. Although ‘‘substantially 

dependent’’ would be applied to mean 

a lesser degree of dependence than that 

of the very highest degree, it could also 

encompass eligible veterans whose 

dependence on the Primary Family 

Caregiver for hands-on assistance with 

an ADL is at the very highest degree on 

the spectrum (for example, if the eligible 

veteran is unable to put forth any effort 

to complete the ADL). It is not VA’s 

intent for the term ‘‘substantially 

dependent’’ in proposed 

§ 71.40(c)(4)(i)(A)(2)(i) to exclude 

eligible veterans who are fully 

dependent or entirely dependent on a 

Primary Family Caregiver for hands-on 

assistance with an ADL. 

For example, an eligible veteran who 

typically requires hands-on assistance 

with dressing may require the Primary 

Family Caregiver to pull a shirt over 

their head, position both arms into shirt 

sleeves and pull sleeves down, but the 

eligible veteran is able to pull the shirt 

down over their trunk. Additionally, the 

eligible veteran typically requires 

hands-on assistance from the Primary 

Family Caregiver to lift feet and place 

them through undergarments and 

pantlegs, pull feet through clothing, and 

lift undergarments and pants to knees 

but the eligible veteran is able to pull 

clothing from knees to waist. The 

eligible veteran may be determined 

substantially dependent on the Primary 

Family Caregiver for dressing. This 

would be the case if the Primary Family 

Caregiver is determined to perform more 

than half the effort to complete the ADL 

of dressing while the eligible veteran 

provides less than half the effort. In 

contrast, an eligible veteran who only 

typically requires hands-on assistance 

when dressing to lift both arms into 

shirtsleeves but is able to independently 

perform all other tasks related to the 

ADL of dressing, would not be 

substantially dependent on the Primary 

Family Caregiver for hands-on 

assistance when dressing because the 

Primary Family Caregiver would not be 

performing more than half the effort 

required to complete the ADL of 

dressing. 

An eligible veteran who typically 

requires hands-on assistance for the 

ADL of eating such that hand over hand 

assistance is needed from the Primary 

Family Caregiver to place food on a fork, 

to place the fork to the eligible veteran’s 

mouth, and hold a cup with a straw in 

proximity to the eligible veteran’s 

mouth so that the veteran can drink, 

would be considered substantially 

dependent upon the Primary Family 

Caregiver for the ADL of eating because 

in such case, the Primary Family 

Caregiver provides more than half the 

effort to complete the ADL. Conversely, 

an eligible veteran who typically 

requires a Primary Family Caregiver to 

place and adjust adaptive utensils in the 


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eligible veteran’s grasp, but the veteran 

is otherwise able to eat would not be 

considered substantially dependent 

upon the Primary Family Caregiver for 

the ADL of eating because the Primary 

Family Caregiver would not be 

providing more than half the effort in 

order for the eligible veteran to 

complete the ADL. 

Similarly, an eligible veteran who 

typically requires hands-on assistance 

with the ADL of adjusting any special 

prosthetic or orthopedic appliance, may 

be substantially dependent on the 

Primary Family Caregiver if the Primary 

Family Caregiver provides more than 

half the effort. For example, if the 

Primary Family Caregiver assists with 

putting on the prosthetic limb by 

positioning a sock appropriately, 

applying a foam liner, and lifting and 

placing the eligible veteran’s stump into 

the prosthesis, the eligible veteran may 

be determined to be substantially 

dependent on the Primary Family 

Caregiver to complete the ADL. If the 

eligible veteran only requires assistance 

from the Primary Family Caregiver to 

hold the foam lining in place while the 

eligible veteran applies the sock, lining, 

and positions their stump into the 

prosthesis such that the Primary Family 

Caregiver does not contribute more than 

half the effort required to perform the 

ADL, the eligible veteran would not be 

determined to be substantially 

dependent on the Primary Family 

Caregiver to complete the ADL. 

An eligible veteran who typically 

requires hands-on assistance to 

complete each of the three ADL 

described in the illustrative examples 

above, that is dressing, adjusting a 

prosthetic limb, and eating, and for each 

such ADL is substantially dependent on 

the Primary Family Caregiver for such 

hands-on assistance may be determined 

to meet this proposed basis such that 

the Primary Family Caregiver may be 

eligible for the higher stipend level. 

ii. Second Proposed Basis for the Higher 

Stipend Level Payment 

Under proposed new 

§ 71.40(c)(4)(i)(A)(2)(i), the second 

proposed basis upon which a Primary 

Family Caregiver would be eligible for 

the higher stipend level payment would 

be that the eligible veteran typically 

requires personal care services to 

complete three or more distinct ADL, 

and for each distinct ADL the eligible 

veteran requires extensive instruction or 

supervision from the Primary Family 

Caregiver. 

This proposed second basis upon 

which a Primary Family Caregiver may 

be determined eligible for the higher 

stipend level payment would align with 

proposed § 71.20(a)(3)(iii), that is, that a 

veteran may be determined in need of 

personal care services because the 

individual typically requires regular or 

extensive instruction or supervision to 

complete one or more ADL. A Primary 

Family Caregiver of an eligible veteran 

who meets such proposed basis may be 

eligible for the higher stipend level 

payment if such eligible veteran 

typically requires personal care services 

to complete three or more distinct ADL 

and for each distinct ADL, requires 

extensive instruction or supervision 

from the Primary Family Caregiver. This 

second proposed basis would be 

consistent with the language in 38 

U.S.C. 1720G(a)(3)(C)(i) stating that the 

amount of the stipend shall be based 

upon the amount and degree of personal 

care services provided through the 

requirement of ‘‘three or more distinct 

ADL’’ and the requirement that the 

eligible veteran requires ‘‘extensive’’ 

instruction or supervision from the 

Primary Family Caregiver. As 

previously noted, the requirement for 

three or more distinct ADL would 

address the amount of personal care 

services provided by the Primary Family 

Caregiver. This is because a Primary 

Family Caregiver would provide a 

greater amount of personal care services 

when providing instruction or 

supervision for three or more distinct 

ADL than when providing instruction or 

supervision for fewer than three distinct 

ADL. 

Referring to ‘‘extensive’’ instruction or 

supervision in proposed 38 CFR 

71.40(c)(4)(i)(A)(2)(i) would address the 

degree of personal care services 

provided by the Primary Family 

Caregiver and align with VA’s proposed 

interpretation of this term in proposed 

§ 71.20(a)(3)(iii). While proposed 

§ 71.20(a)(3)(iii) would refer to ‘‘regular 

or extensive’’ instruction or supervision, 

proposed § 71.40(c)(4)(i)(A)(2)(i) would 

refer to ‘‘extensive’’ instruction or 

supervision from the Primary Family 

Caregiver for purposes of the higher 

stipend level payment. This is because 

VA considers those who require regular 

instruction or supervision to complete 

one or more ADL to be indicative of 

those with moderate needs while VA 

considers those who require extensive 

instruction or supervision to complete 

three or more distinct ADL to have 

severe needs. As explained in, and 

consistent with, VA’s earlier discussion 

on proposed § 71.20(a)(3)(iii), if this 

proposed rule is adopted as final, VA 

would consider the need for extensive 

instruction or supervision to mean that 

the instruction or supervision is 

required throughout the completion of 

the ADL. In contrast, VA would 

consider regular instruction or 

supervision to mean that the instruction 

or supervision is required for a portion 

of completing the ADL rather than 

throughout the completion of the ADL. 

Those who require extensive instruction 

or supervision therefore would be 

considered to have a greater degree of 

need than those who require regular 

instruction or supervision to complete 

an ADL. VA provides the following 

illustrative examples to help explain 

VA’s interpretation of how an eligible 

veteran would meet the requirement of 

needing ‘‘extensive’’ instruction or 

supervision to complete three or more 

distinct ADL. If an eligible veteran 

requires supervision when determining 

the amount of shampoo necessary, 

applying shampoo to head, lathering 

hair, and rinsing hair but is otherwise 

able to perform the remaining actions of 

bathing without assistance, they would 

not have an extensive need for 

supervision to complete the ADL of 

bathing because supervision from the 

Primary Family Caregiver is not needed 

throughout the act of bathing. Once the 

portion of the activity for which 

supervision is needed was completed, 

the eligible veteran may be able to 

function safely and independently for 

the remainder of completing the 

activity. In contrast, if such an eligible 

veteran also required supervision to 

adjust water temperature at the 

beginning of the activity, identify body 

parts to wash, then rinse during the act 

of bathing, and towel dry at the end of 

the activity, such eligible veteran may 

be determined to require extensive 

supervision from the Primary Family 

Caregiver to complete the ADL of 

bathing because assistance would be 

required throughout the ADL of bathing. 

An eligible veteran who is in need of 

extensive instruction to toilet may 

require step-by-step instruction 

throughout the ADL of toileting, such as 

to position self at the toilet, unfasten 

clothing, cleanse oneself, and refasten 

clothing. Such veteran would require 

extensive instruction from a Primary 

Family Caregiver because such 

instruction is needed throughout the 

activity of toileting. In contrast, if such 

instruction was only needed to position 

self at the toilet and unfasten clothing, 

such need may be a regular need, 

because instruction is only necessary for 

a portion of the activity, which is at the 

beginning, and the eligible veteran is 

otherwise able to complete the ADL of 

toileting in the absence of the Primary 

Family Caregiver. 

A veteran who requires step-by-step 

instruction from a Primary Family 

Caregiver when eating, such as 


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instruction to select appropriate utensils 

to bring food to mouth, chew food prior 

to swallowing, and to swallow prior to 

bringing additional food to mouth may 

be determined to have an extensive 

need for instruction from a Primary 

Family Caregiver when eating because 

such instruction is required throughout 

the activity of eating. In contrast, if the 

eligible veteran only requires such 

instruction for the first two bites of the 

meal after which such pattern is 

established, and is able to finish eating 

independently without further 

instruction from a Primary Family 

Caregiver to complete the activity of 

eating, such veteran may be determined 

to be in need of regular instruction for 

the ADL of eating. 

An eligible veteran who typically 

requires extensive instruction or 

supervision with each of the three 

distinct ADL described in the examples 

above, that is bathing, toileting and 

eating may be determined to meet this 

second proposed basis under 38 CFR 

71.40(c)(4)(i)(A)(2)(i) such that the 

Primary Family Caregiver may be 

eligible for the higher stipend level. 

iii. Third Proposed Basis for Higher 

Stipend Level Payment 

As proposed, §71.40(c)(4)(i)(A)(2)(i). 

would state that for each distinct ADL 

the eligible veteran either is 

substantially dependent on the Primary 

Family Caregiver for hands-on 

assistance or requires extensive 

instruction or supervision from the 

Primary Family Caregiver. VA would 

consider both types of personal care 

services when determining whether the 

Primary Family Caregiver is eligible for 

the higher stipend level payment on this 

basis. Therefore, a combination of both 

types of personal care services, if 

provided by the Primary Family 

Caregiver to complete three or more 

distinct ADL, could establish a third 

basis for determining eligibility for the 

higher stipend level pursuant to 

proposed § 71.40(c)(4)(i)(A)(2)(i). 

For a Primary Family Caregiver to be 

eligible for the higher stipend level 

under § 71.40(c)(4)(i)(A)(2)(i), the 

eligible veteran would require at least 

one of these types of personal care 

services (that is, be substantially 

dependent on the Primary Family 

Caregiver for hands-on assistance, or 

require extensive instruction or 

supervision from the Primary Family 

Caregiver) to complete three or more 

distinct ADL. VA would not require the 

eligible veteran to need the same type of 

personal care services to complete each 

of the three or more distinct ADL. For 

example, an eligible veteran who 

typically requires personal care services 

to complete three or more distinct ADL 

would not have to be substantially 

dependent on the Primary Family 

Caregiver for hands-on assistance to 

complete all three distinct ADL or 

require extensive instruction or 

supervision from the Primary Family 

Caregiver to complete all three distinct 

ADL. Instead, the Primary Family 

Caregiver of such an eligible veteran 

could be eligible for the higher stipend 

level under § 71.40(c)(4)(i)(A)(2)(i) if, for 

example, the eligible veteran is 

substantially dependent on the Primary 

Family Caregiver for hands-on 

assistance to complete two ADL and 

requires extensive instruction from the 

Primary Family Caregiver to complete 

an additional distinct ADL. In this 

example, the eligible veteran typically 

requires personal care services to 

complete three or more distinct ADL, 

and for each distinct ADL, the eligible 

veteran either is substantially 

dependent on the Primary Family 

Caregiver for hands-on assistance or 

requires extensive instruction or 

supervision from the Primary Family 

Caregiver; therefore, the Primary Family 

Caregiver would be eligible for the 

higher stipend level under proposed 

§ 71.40(c)(4)(i)(A)(2)(i). In contrast, if an 

eligible veteran typically requires 

personal care services to complete only 

two distinct ADL, the Primary Family 

Caregiver would not qualify for the 

higher stipend level under this 

proposed basis, even if for both such 

ADL the eligible veteran is both 

substantially dependent on the Primary 

Family Caregiver for hands-on 

assistance and requires extensive 

instruction from the Primary Family 

Caregiver. 

iv. Fourth Proposed Basis for Higher 

Stipend Level Payment 

The fourth proposed basis would be 

set forth in proposed 

§ 71.40(c)(4)(i)(A)(2)(ii), which would 

state that the eligible veteran has a 

frequent need for supervision or 

protection on a continuous basis from 

the Primary Family Caregiver based on 

the eligible veteran’s symptoms or 

residuals of neurological or other 

impairment or injury. As VA explained 

above, following the Veteran Warriors 

decision, a Primary Family Caregiver is 

eligible for the higher stipend level if an 

eligible veteran has a need for 

supervision or protection based on 

symptoms or residuals of neurological 

or other impairment or injury (38 U.S.C. 

1720G(a)(2)(C)(ii)) on a continuous 

basis. The proposed fourth basis in 38 

CFR 71.40(c)(4)(i)(A)(2)(ii) would 

maintain this criterion but with an 

added requirement that the eligible 

veteran has a frequent need for 

supervision or protection, consistent 

with the other proposed bases for the 

higher stipend level as discussed earlier 

in this rulemaking. 

Consistent with VA’s prior and 

current interpretation (see 85 FR 46239– 

46240 (July 31, 2020)), in making 

determinations on whether an eligible 

veteran has a need for supervision or 

protection based on symptoms or 

residuals of neurological or other 

impairment or injury on a continuous 

basis following the Veteran Warriors 

decision, VA considers ‘‘continuous’’ to 

refer to the amount and degree of 

personal care services provided. 

Whether or not the eligible veteran has 

a frequent need for supervision or 

protection on a continuous basis would 

be a clinical determination and would 

consider the degree of intervention 

required, how frequently the required 

intervention is needed, whether such 

required personal care services are 

limited or expansive in the extent of 

assistance required, and whether such 

personal care services are provided for 

short durations or occur over an 

extended period of time. 

For example, as these criteria are 

applied today, an eligible veteran with 

post-traumatic stress disorder with a 

demonstrated pattern of severe, 

uncontrolled panic attacks, who 

requires a Family Caregiver to actively 

intervene through verbal and physical 

intervention to assist the eligible veteran 

in grounding and de-escalating multiple 

times during the day may be in need of 

supervision or protection on a 

continuous basis. Additionally, an 

eligible veteran with amyotrophic 

lateral sclerosis and that consequently 

has muscle weakness who experiences 

loss of muscle control throughout the 

day may be in need of supervision or 

protection throughout the day, and thus 

may be determined to have a frequent 

need for supervision or protection based 

on symptoms or residuals of 

neurological or other impairment or 

injury on a continuous basis. 

The phrase ‘‘on a continuous basis’’ 

for purposes of this proposed basis 

would not mean that the eligible veteran 

would require supervision or protection 

24 hours per day, seven days per week, 

and it is not meant to imply that an 

individual requires hospitalization or 

nursing home care. Instead, the need for 

supervision or protection could be 

demonstrated through, but would not be 

limited to, a recurring, consistent, and 

prevalent need. 

This requirement of ‘‘on a continuous 

basis’’ in proposed 

§ 71.40(c)(4)(i)(A)(2)(ii) would address 

the amount and degree of personal care 


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services provided, consistent with the 

language in 38 U.S.C. 1720G(a)(3)(C)(i), 

as the Primary Family Caregiver who 

provides supervision or protection on a 

continuous basis would provide a 

greater amount and degree of personal 

care services to the eligible veteran than 

a Primary Family Caregiver who 

provides supervision or protection on a 

less than continuous basis. 

For example, an eligible veteran with 

an uncontrolled seizure disorder may 

experience seizures on a near daily basis 

and when such seizures occur, the 

eligible veteran frequently needs 

protection from the Primary Family 

Caregiver to clear the area of hard 

objects, support the eligible veteran’s 

head, call for medical assistance, if 

needed, and help the eligible veteran reorient following the seizure. Such need 

for supervision or protection may be 

needed on a continuous basis because 

such need is recurring, can occur at any 

time, and could require the Primary 

Family Caregiver to actively intervene to 

maintain the safety of the eligible 

veteran. Such Primary Family Caregiver 

may be determined eligible for the 

higher stipend level under proposed 

§ 71.40(c)(4)(i)(A)(2)(ii). 

VA provides the foregoing examples 

as illustrations of its intended 

application of the proposed rule should 

it be adopted as final, but VA’s 

determinations would continue to be 

fact-specific and could differ depending 

on the facts and circumstances of an 

individual eligible veteran and their 

Primary Family Caregiver. 

v. Multiple Bases for Eligibility for 

Higher Stipend Level Payment 

Since implementing changes 

following the Veteran Warriors ruling, 

there are three bases under which a 

Primary Family Caregiver may be 

eligible for the higher stipend level. The 

proposed changes within this proposed 

rulemaking regarding the criteria for the 

higher stipend level would provide four 

bases. Under VA’s proposed rule, a 

Primary Family Caregiver may be 

eligible for the higher stipend level 

under multiple bases but would only be 

required to meet one basis to be eligible 

for the higher stipend level. 

Meeting one proposed basis for the 

higher stipend level does not preclude 

a Primary Family Caregiver from 

meeting one or more additional 

proposed bases that would also allow 

them to be eligible for the higher 

stipend level. So long as VA determines 

that one of the bases under 

§ 71.40(c)(4)(i)(A)(2) is satisfied, the 

Primary Family Caregiver would be 

eligible for the higher stipend level. 

c. Proposed Changes To Extend 

Transition Period for Legacy Cohort 

To effectuate VA’s proposed 

extension of the transition period for the 

legacy cohort as discussed earlier in this 

rulemaking, VA proposes to revise 

several paragraphs of § 71.40(c)(4)(i). 

Specifically, VA would amend the first 

sentence of the introductory text of 

§ 71.40(c)(4)(i)(B) to remove the phrase 

‘‘for five-years beginning on October 1, 

2020’’ and add in its place, the phrase 

‘‘for the time period beginning on 

October 1, 2020 and ending on [18 

months after EFFECTIVE DATE OF 

FINAL RULE]’’. VA would make the 

same edit in paragraphs (c)(4)(i)(C) and 

(c)(4)(i)(D). 

2. Stipend Adjustments 

a. Adjustments to Stipend Payments 

Based on the Office of Personnel 

Management (OPM) Updates to the 

General Schedule (GS) Annual Rate 

Current § 71.40(c)(4)(ii) explains 

adjustments to monthly stipend 

payments. Adjustments to monthly 

stipend payments that result from 

OPM’s updates to the GS Annual Rate 

for grade 4, step 1 for the locality pay 

area in which the eligible veteran 

resides take effect prospectively 

following the date the update to such 

rate is made effective by OPM. 

§ 71.40(c)(4)(ii)(A). 

VA proposes to revise current 

§ 71.40(c)(4)(ii)(A) to further clarify this 

provision and confirm through edits to 

the regulation text that VA will not 

make retroactive pay corrections in 

instances when OPM announces 

retroactive changes to the General 

Schedule (GS) Annual Rate tables later 

in the year. See 85 FR at 46267 (July 31, 

2020). VA’s proposed changes would 

also provide additional clarification in 

§ 71.40(c)(4)(ii)(A) that VA believes is 

needed to inform Primary Family 

Caregivers of the specific month in 

which they can expect to receive a pay 

adjustment under this paragraph. 

Under this proposal, VA would 

maintain the requirement in current 

paragraph (c)(4)(ii)(A) that VA will 

make stipend payment adjustments 

based on OPM’s updates to the GS 

Annual Rate for grade 4, step 1 for the 

locality pay area in which the eligible 

veteran resides. To further clarify when 

monthly stipend payment adjustments 

take effect, VA proposes to revise the 

language that currently states that such 

adjustments take effect prospectively 

following the date the update to such 

rate is made effective by OPM. VA 

proposes to explain instead that such 

adjustments would take effect on the 

first of the month that changes to the GS 

Annual Rate are effective. However, if 

OPM publishes changes to the GS 

Annual Rate and such changes have a 

retroactive effective date, VA proposes 

to make those adjustments to the 

stipend payments effective on the first 

of the month following the month that 

OPM publishes changes to the GS 

Annual Rate. 

Thus, VA proposes to revise 

§ 71.40(c)(4)(ii)(A) to state that VA will 

adjust monthly stipend payments based 

on changes to the General Schedule (GS) 

Annual Rate for grade 4, step 1 for the 

locality pay area in which the eligible 

veteran resides. It would also state that 

such adjustments will take effect on the 

first of the month in which changes to 

the GS Annual Rate are effective. 

Proposed § 71.40(c)(4)(ii)(A) would 

further state that notwithstanding the 

previous sentence, adjustments under 

this paragraph will take effect on the 

first of the month following the month 

OPM publishes changes to the GS 

Annual Rate if such changes have a 

retroactive effective date. 

These proposed revisions are 

intended to further clarify when 

adjustments will be made based on 

changes to the GS Annual Rate. 

Pursuant to 5 U.S.C. 5303 and 5304, the 

GS rates are updated and published on 

an annual basis by OPM. Information on 

the GS rates can be found at https://

www.opm.gov/policy-data-oversight/ 

pay-leave/salaries-wages/. Updates to 

the GS Annual Rate are typically 

effective on the first day of the first 

applicable pay period beginning on or 

after January 1 of each calendar year. In 

the past, OPM has announced and 

published the updated rates in 

December prior to implementing the 

new rates. This has been the case each 

year since October 2020 when VA 

implemented the term monthly stipend 

rate, which is defined in § 71.15 to 

mean the OPM GS Annual Rate for 

grade 4, step 1, based on the locality pay 

area in which the eligible veteran 

resides, divided by 12. 

The proposed changes to 

§ 71.40(c)(4)(ii)(A) would provide 

transparency to Primary Family 

Caregivers by specifying the month in 

which they can expect the adjustment to 

the monthly stipend payment based on 

changes to the GS Annual Rate to be 

effective. VA’s proposed changes would 

make clear that if changes to the GS 

Annual Rate for the following calendar 

year are announced on December 15 and 

such changes take effect on January 1 of 

that following calendar year, VA would 

make adjustments to the monthly 

stipend payment based on those 

changes to the GS Annual Rate effective 

January 1. Similarly, under this 


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21Executive Order for 2019 Pay Schedules, OPM, 

available at https://www.opm.gov/policy-dataoversight/pay-leave/salaries-wages/2019/executiveorder-for-2019-pay-schedules/(last visited Feb. 8, 

2024); Executive Order 13866, Adjustments of 

Certain Rates of Pay, The White House, March 28, 

2019, available at https://www.opm.gov/policydata-oversight/pay-leave/salaries-wages/retroactivepay-executive-order-2019-adjustments-of-certainrates-of-pay.pdf (last visited Feb. 8, 2024). 

proposal, if changes to the GS Annual 

Rate for the following calendar year are 

announced on December 14 and such 

changes take effect on January 10 of the 

following calendar year, VA would 

make adjustments to the monthly 

stipend payment based on those 

changes to the GS Annual Rate effective 

January 1. This is the practice VA has 

followed for updates to the GS Annual 

Rate that were made effective in 2021, 

2022, and 2023. Thus, if adopted as 

proposed, this change would not have a 

substantive impact upon current PCAFC 

participants, would clarify the timing of 

adjustments under paragraph 

(c)(4)(ii)(A) for Primary Family 

Caregivers, and reflect VA’s current 

practice. While VA expects OPM will 

continue to provide notice of GS Annual 

Rate changes in December with an 

effective date of the first day of the first 

applicable pay period beginning on or 

after January 1 of the following calendar 

year, updates to and publication of, the 

GS Annual Rate may not always follow 

this timeline. In some cases, changes to 

the GS Annual Rate may be made 

retroactively. For example, Congress 

could enact legislation in February that 

makes adjustments to the GS Annual 

Rate with a January effective date. As a 

result, OPM may publish the changes to 

the GS Annual Rate in March and the 

effective date may be retroactive to 

January of that same year. This occurred 

with the 2019 GS Annual Rate change. 

The President issued Executive Order 

13866 on March 28, 2019, that provided 

a retroactive pay adjustment to January 

2019 as required by the Consolidated 

Appropriations Act, 2019 (Public Law 

116–6).21 On these rare occasions that 

OPM publishes changes to the GS 

Annual Rate and such changes have a 

retroactive effective date, VA proposes 

to make adjustments to monthly stipend 

payments based on those changes 

effective the first of the month following 

the month OPM publishes the changes 

to the GS Annual Rate. 

For example, under this proposal, if 

changes to the GS Annual Rate are 

published on April 10 and are made 

effective retroactive to January 1, VA 

would apply the changes to the GS 

Annual Rate to the monthly stipend 

rate, but they would not take effect until 

May 1. VA is not proposing to apply the 

rate adjustments retroactively to January 

1 because this would not be 

administratively feasible under VA’s 

current systems. The Caregiver Records 

Management Application (CARMA) is 

the information technology (IT) system 

used by CSP to fully support PCAFC 

and it allows for data assessment and 

comprehensive monitoring of PCAFC. 

CARMA’s ability to support PCAFC 

operations includes functionality 

related to calculations and issuance of 

the monthly stipend payment. The 

system, as designed, is not able to apply 

systematic retroactive calculations. To 

do so would require manual review and 

calculation of each Primary Family 

Caregiver’s monthly stipend payment 

impacted by retroactive payments and 

would require manual updates to 

system data to ensure accurate tracking 

of retroactive payments. Such manual 

review would be significantly resourceintensive and would likely result in 

delays not only in applying retroactive 

adjustments but delays to all monthly 

stipend payments. Additionally, manual 

processes generally carry risk for errors 

and in the case of the monthly stipend 

payment could result in administrative 

errors such as incorrect payment 

calculations. Significant additional 

developer resources would be needed to 

perform such manual updates, 

potentially compromising current and 

future work towards additional CARMA 

improvements and enhancements. 

Retroactive changes to the GS Annual 

Rate do not occur often and have not 

occurred in the last three years. Given 

the administrative burden, risk to 

system integrity, and potential for 

administrative error in payment 

calculations for many Primary Family 

Caregivers that would be expected if VA 

were to make retroactive stipend pay 

adjustments as discussed above, if OPM 

publishes changes to the GS Annual 

Rate with a retroactive effective date, 

VA proposes to make monthly stipend 

payment adjustments effective the first 

of the month following the month OPM 

publishes changes to the GS Annual 

Rate. 

VA also notes that there also could be 

instances in which changes to the GS 

Annual Rate do not take effect because 

of an intervening event. For example, if 

changes to the GS Annual Rate are 

announced in November to take effect in 

February of the following year, but 

superseding legislation or an Executive 

Order makes ineffective such changes to 

the GS Annual Rate (such as a mandate 

in December to freeze the GS Annual 

Rate), no changes to the GS Annual Rate 

would be made based on the November 

announcement. Pursuant to the 

proposed changes to paragraph 

(c)(4)(ii)(A), VA would not adjust the 

monthly stipend payment based on the 

changes to the GS Annual Rate that 

were announced in November. In such 

cases, there would be no changes to the 

GS Annual Rate so VA would have no 

basis to adjust monthly stipend 

payments pursuant to proposed 

paragraph (c)(4)(ii)(A). 

b. Stipend Adjustments Resulting From 

Reassessments 

VA proposes to revise the paragraphs 

of § 71.40(c)(4)(ii)(C), which address the 

effective date for changes in the Primary 

Family Caregiver’s monthly stipend 

payment resulting from a reassessment 

under § 71.30. VA’s proposed changes to 

§ 71.40(c)(4)(ii)(C) would make 

substantive revisions, such as VA’s 

proposal to authorize a retroactive 

increase in the monthly stipend 

payment that would become effective as 

of the date VA receives a written 

reassessment request under proposed 

revisions to § 71.30(c), as discussed 

above. Other proposed changes to 

§ 71.40(c)(4)(ii)(C), such as VA’s 

proposed revisions to the regulatory text 

regarding the effective date for a 

decrease in the monthly stipend 

payment based on a reassessment, as 

well as relocation of provisions related 

to the retroactive stipend payment for 

Primary Family Caregivers of certain 

legacy participants and legacy 

applicants, would primarily maintain 

the current regulatory requirements but 

reorganize how those requirements are 

reflected in VA’s regulations. Each of 

these proposed changes are discussed in 

more detail below. 

i. 38 CFR 71.40(c)(4)(ii)(C)(1) and (2)— 

Current Requirements for Monthly 

Stipend Payment Increases and 

Decreases 

Currently, paragraphs (1) and (2) of 

§ 71.40(c)(4)(ii)(C) set forth different 

requirements for monthly stipend 

payment increases and decreases 

resulting from reassessments based on 

whether the eligible veteran is or is not 

a legacy participant or legacy applicant 

as those terms are defined in § 71.15. If 

the eligible veteran is a legacy 

participant or legacy applicant (that is, 

the eligible veteran meets the 

requirements of § 71.20(b) or (c)), 

monthly stipend payment increases and 

decreases resulting from reassessments 

are governed by current 

§ 71.40(c)(4)(ii)(C)(2). For all other 

eligible veterans (that is, those 

determined eligible for PCAFC under 

the § 71.20(a) eligibility criteria that 

went into effect on October 1, 2020, and 

who are not a legacy participant or 

legacy applicant meeting the 


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requirements of § 71.20(b) or (c), 

respectively), monthly stipend increases 

and decreases resulting from 

reassessments are governed by current 

§ 71.40(c)(4)(ii)(C)(1). 

Under current § 71.40(c)(4)(ii)(C)(1), if 

the eligible veteran meets the 

requirements of § 71.20(a) only and does 

not meet the requirements of § 71.20(b) 

or (c), and a reassessment results in an 

increase in the Primary Family 

Caregiver’s monthly stipend payment, 

the increase takes effect as of the date 

of the reassessment. 

§ 71.40(c)(4)(ii)(C)(1)(i). For such an 

eligible veteran, in the case of a 

reassessment that results in a decrease 

in the Primary Family Caregiver’s 

monthly stipend payment, the decrease 

takes effect as of the effective date 

provided in VA’s final notice of such 

decrease to the eligible veteran and 

Primary Family Caregiver. 

§ 71.40(c)(4)(ii)(C)(1)(ii). The effective 

date of the decrease is no earlier than 60 

days after VA provides advanced notice 

of its findings to the eligible veteran and 

Primary Family Caregiver. Id. 

Currently, paragraphs (i) and (ii) of 

§ 71.40(c)(4)(ii)(C)(2) address monthly 

stipend payment increases and 

decreases, respectively, resulting from 

reassessments in the case of legacy 

participants and legacy applicants, that 

is, eligible veterans who meet the 

requirements of § 71.20(b) or (c). 

Current paragraph (i) of 

§ 71.40(c)(4)(ii)(C)(2) states that in the 

case of a reassessment that results in an 

increase in the monthly stipend 

payment, the increase takes effect as of 

the date of the reassessment. In such a 

case, the Primary Family Caregiver may 

also be eligible for a retroactive 

payment. The requirements governing 

this retroactive payment are contained 

in current § 71.40(c)(4)(ii)(C)(2)(i). VA 

provides a detailed description of these 

requirements later in this rulemaking in 

VA’s discussion of its proposal to 

relocate these provisions to a revised 

§ 71.40(c)(4)(iii). 

Current paragraph (ii) of 

§ 71.40(c)(4)(ii)(C)(2) states that in the 

case of a reassessment that results in a 

decrease in the monthly stipend 

payment and the eligible veteran meets 

the requirements of § 71.20(a), that is, 

the legacy participant or legacy 

applicant meets PCAFC eligibility 

criteria in § 71.20(a) that became 

effective on October 1, 2020, the new 

monthly stipend amount for the Primary 

Family Caregiver under 

§ 71.40(c)(4)(i)(A) takes effect as of the 

effective date provided in VA’s final 

notice of such decrease to the eligible 

veteran and Primary Family Caregiver. 

The effective date of the decrease will 

be no earlier than 60 days after October 

1, 2025. § 71.40(c)(4)(ii)(C)(2)(ii). On 

October 1, 2025, VA will provide 

advanced notice of its findings to the 

eligible veteran and Primary Family 

Caregiver. Id. 

ii. Proposed 38 CFR 71.40(c)(4)(ii)(C)(1) 

and (2)—Reorganization of Monthly 

Stipend Payment Requirements Based 

on Reassessment 

Proposed § 71.40(c)(4)(ii)(C)(1) and (2) 

would continue to address increases 

and decreases in the monthly stipend 

payment that result from reassessments. 

However, to improve clarity and 

succinctness, VA proposes to reorganize 

paragraphs (1) and (2) to separately 

address monthly stipend payment 

increases (in revised paragraph (1) with 

the heading ‘‘Increases’’) and monthly 

stipend payment decreases (in revised 

paragraph (2) with the heading 

‘‘Decreases’’) that may result from 

reassessments conducted by VA. Rather 

than separately addressing such 

increases and decreases based on 

whether an eligible veteran meets the 

requirements of § 71.20(a) only or also 

meets the requirements of § 71.20(b) or 

(c), proposed § 71.40(c)(4)(ii)(C)(1) and 

(2) would include provisions regarding 

monthly stipend payment increases and 

decreases, respectively, with respect to 

all eligible veterans and their Primary 

Family Caregivers. 

A. Proposed 38 CFR 

71.40(c)(4)(ii)(C)(1)—Effective Date of 

Monthly Stipend Payment Increases 

Based on a Reassessment 

Proposed § 71.40(c)(4)(ii)(C)(1) would 

have the heading ‘‘Increases’’ and would 

exclude references to eligibility 

requirements and would instead explain 

that in the case of a reassessment that 

results in an increase in the monthly 

stipend payment, the increase takes 

effect on the earlier of the dates 

described in paragraphs (i) and (ii). This 

proposed paragraph would apply to all 

eligible veterans and their Primary 

Family Caregivers in the case of a 

reassessment that results in a monthly 

stipend payment increase—not just 

those described in current 

§ 71.40(c)(4)(ii)(C)(1) (that is, those who 

meet the requirements of § 71.20(a) only 

and not § 71.20(b) or (c)). 

As proposed in paragraph 

(c)(4)(ii)(C)(1)(i), the first of these two 

dates would be the date VA issues 

notice of the decision. This would be 

referring to the notice of the decision 

regarding the increase in the monthly 

stipend payment as a result of the 

reassessment. Under current 

§ 71.40(c)(4)(ii)(C)(1)(i) and (2)(i), if a 

reassessment results in an increase in 

the monthly stipend payment, the 

increase takes effect as of the date of the 

reassessment. Since implementing this 

provision, VA has interpreted ‘‘the date 

of the reassessment’’ to mean the date a 

reassessment determination is made, 

which aligns with ‘‘the date VA issues 

notice of the decision’’. A reassessment 

can occur over multiple days, but it is 

not complete until the reassessment 

determination is made, and VA issues 

notice of its decision. As the current 

reference to ‘‘date of the reassessment’’ 

could be interpreted differently, such as 

the date VA initiates a reassessment or 

the date VA completes the final 

evaluation required for a reassessment, 

VA proposes to revise the current 

language to remove ambiguity and 

clarify VA’s interpretation. VA proposes 

to revise the language to reflect that it 

is the date VA issues notice of the 

decision, not the date the reassessment 

was initiated, or the final evaluation 

required for the reassessment was 

completed, that serves as the effective 

date of the increase in the monthly 

stipend payment. 

Proposed paragraph (ii) would refer to 

the second of the two dates in proposed 

§ 71.40(c)(4)(ii)(C)(1) on which the 

increase in the monthly stipend 

payment may take effect. This would be 

the date VA received the written request 

for a reassessment pursuant to proposed 

§ 71.30(c) from the eligible veteran or 

the Primary Family Caregiver of the 

eligible veteran. As discussed in the 

context of proposed changes to § 71.30, 

VA is proposing to amend § 71.30(c) to 

provide eligible veterans and Primary 

Family Caregivers the opportunity to 

submit a written request for a 

reassessment. Proposed 

§ 71.40(c)(4)(ii)(C)(1)(ii) would allow for 

a retroactive increase in the monthly 

stipend payment back to the date VA 

received the written request for 

reassessment pursuant to proposed 

§ 71.30(c), if it is the earlier date under 

proposed § 71.40(c)(4)(ii)(C)(1). If 

adopted as proposed, this effective date 

provision would apply only to 

reassessment requests under proposed 

§ 71.30(c) that are received by VA on or 

after the effective date of the final rule 

adopting the provision, and VA would 

clarify that in proposed paragraph 

(c)(4)(ii)(C)(1)(ii). This would mean that 

the retroactive effective date back to the 

date of receipt of a request for 

reassessment for increases in the 

monthly stipend payment would not 

apply to requests submitted before the 

effective date of a final rule adopting 

this proposal, even if such a request met 

the requirements in proposed § 71.30(c). 

Additionally, this proposed paragraph 


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would only apply to reassessments that 

result in an increase in the monthly 

stipend payment. Proposed 

§ 71.40(c)(4)(ii)(C)(2), discussed in more 

detail below, would provide the 

effective date for a decrease in the 

monthly stipend payment based on a 

reassessment, including a reassessment 

requested pursuant to proposed 

§ 71.30(c). 

Proposed § 71.40(c)(4)(ii)(C)(1)(ii) 

would account for the period of time 

between the date VA receives a written 

request for reassessment under 

proposed § 71.30(c) and the date VA 

issues notice of its decision regarding 

the monthly stipend payment increase 

resulting from the reassessment. VA 

would strive to conduct reassessments 

in a timely manner following a request 

for a reassessment under proposed 

§ 71.30(c), if adopted in a final rule. 

However, if VA experiences any delay 

in conducting a reassessment requested 

under proposed § 71.30(c), for example, 

because VA is responding to a surge of 

new applications and/or requests for 

reassessment following the effective 

date of the final rule, proposed 

§ 71.40(c)(4)(ii)(C)(1)(ii) would ensure 

any monthly stipend payment increase 

resulting from a written request for 

reassessment under proposed § 71.30(c) 

would become effective no later than 

the date VA received such request. 

Proposed § 71.40(c)(4)(ii)(C)(1)(ii) would 

apply to all PCAFC participants, 

regardless of whether the eligible 

veteran is or is not a legacy participant 

or legacy applicant, and it would help 

ensure equity among eligible veterans 

and Primary Family Caregivers across 

PCAFC when a reassessment requested 

under proposed § 71.30(c) results in a 

monthly stipend payment increase. 

Even if there is variability among VA 

facilities in their ability to conduct 

reassessments requested under 

proposed § 71.30(c) in a timely manner, 

under proposed § 71.40(c)(4)(ii)(C)(1)(ii), 

the Primary Family Caregiver would 

receive any increased monthly stipend 

payment based on the reassessment 

back to the date VA received the request 

under proposed § 71.30(c). For example, 

if a final rule adopting this proposal 

becomes effective on March 31 and VA 

Facility A receives a written request for 

reassessment under proposed § 71.30(c) 

on April 1, and then on May 1, issues 

notice that the reassessment resulted in 

an increased monthly stipend payment, 

the effective date of the increase would 

be April 1. If VA Facility B also receives 

a request for reassessment under 

proposed § 71.30(c) on April 1, but 

because of a surge in such requests for 

reassessments, VA Facility B is not able 

to complete such reassessment right 

away, and on July 1 issues notice that 

the reassessment resulted in an 

increased monthly stipend payment, the 

effective date of the increase would still 

be April 1. As stated above, under 

proposed § 71.40(c)(4)(ii)(C)(1), the 

increase to the monthly stipend 

payment resulting from a reassessment 

would take effect on the earlier of either 

the date VA issues notice of the decision 

or the date VA received the written 

request for the reassessment pursuant to 

§ 71.30(c) from the eligible veteran or 

the Primary Family Caregiver of the 

eligible veteran, as would be set forth in 

proposed paragraphs (i) and (ii), 

respectively. 

Because of the changes VA proposes 

to make in paragraph (c)(4)(ii)(C)(1), VA 

proposes to revise the first sentence in 

the note to paragraph (c)(4)(ii)(C)(2) 

which refers to increases under 

paragraph (c)(4)(ii)(C)(2)(i) of this 

section or decreases under paragraph 

(c)(4)(ii)(C)(2)(ii) of this section. VA 

proposes to remove the referenced 

language and in its place, add the 

phrase ‘‘adjusted pursuant to 

(c)(4)(ii)(C)’’. This would be a technical 

and conforming edit to update the note 

to paragraph (c)(4)(ii)(C)(2) and provide 

the reader with one citation for the 

applicable paragraphs governing both 

monthly stipend payment increases and 

decreases resulting from a reassessment. 

In addition, VA proposes to remove 

references to October 1, 2025 in the note 

to paragraph (c)(4)(ii)(C)(2) and would 

add in their place, the date that is 18 

months after the effective date of a final 

rule implementing this rulemaking. This 

change would align with VA’s proposal 

to extend the transition period for 

members of the legacy cohort as 

discussed earlier in this rulemaking. 

B. Proposed § 71.40(c)(4)(ii)(C)(2)— 

Effective Date of Monthly Stipend 

Payment Decrease Based on a 

Reassessment 

Proposed paragraph (c)(4)(ii)(C)(2) 

would address instances in which a 

reassessment results in a decrease in the 

monthly stipend payment. Proposed 

paragraph (c)(4)(ii)(C)(2)(i) would 

address the effective date for such 

decreases generally, by incorporating 

the requirements from current 

§ 71.40(c)(4)(ii)(C)(1)(ii) and would have 

the heading ‘‘General’’. Proposed 

paragraph (c)(4)(ii)(C)(2)(ii) would set 

forth the effective date for such 

decreases specifically with respect to 

eligible veterans who meet the 

requirements of § 71.20(a) and (b) or (c) 

(that is, those legacy participants and 

legacy applicants who meet the 

eligibility criteria in proposed 

§ 71.20(a)) by incorporating the 

requirements from current 

§ 71.40(c)(4)(ii)(C)(2)(ii) and would have 

the heading ‘‘Resulting from a legacy 

reassessment’’. 

Proposed paragraph (c)(4)(ii)(C)(2)(i) 

would be almost identical to current 

§ 71.40(c)(4)(ii)(C)(1)(ii), except that the 

paragraph would include new language 

referring to the effective date provision 

in proposed paragraph (c)(4)(ii)(C)(2)(ii) 

that would be unique to legacy 

participants and legacy applicants. 

Accordingly, proposed paragraph 

(c)(4)(ii)(C)(2)(i) would state that except 

as provided in § 71.40(c)(4)(ii)(C)(2)(ii), 

in the case of a reassessment that results 

in a decrease in the monthly stipend 

payment, the decrease takes effect as of 

the effective date provided in VA’s final 

notice of such decrease to the eligible 

veteran and Primary Family Caregiver. It 

would also state that the effective date 

of the decrease will be no earlier than 

60 days after VA provides advanced 

notice of its findings to the eligible 

veteran and Primary Family Caregiver. 

There would be no substantive change 

in this effective date with respect to 

eligible veterans who meet the 

requirements of § 71.20(a) only (that is, 

eligible veterans who are not legacy 

participants or legacy applicants 

meeting the requirements of § 71.20(b) 

or (c), respectively) as provided in 

current paragraph (c)(4)(ii)(C)(1)(ii). 

Proposed paragraph (c)(4)(ii)(C)(2)(ii) 

would incorporate the language from 

current § 71.40(c)(4)(ii)(C)(2)(ii) but VA 

would add a reference to § 71.20(b) or 

(c) to clarify that this paragraph would 

apply with respect to eligible veterans 

who are legacy participants and legacy 

applicants and to update references to 

the transition period for the legacy 

cohort to refer to the date that is 18 

months after the effective date of a final 

rule implementing this rulemaking as 

discussed earlier in this rulemaking. 

Also, to ensure consistency with 

terminology used elsewhere in part 71, 

proposed paragraph (c)(4)(ii)(C)(2)(ii) 

would refer to the ‘‘monthly stipend 

payment’’ instead of the term ‘‘stipend 

amount’’ that appears in the first 

sentence of current 

§ 71.40(c)(4)(ii)(C)(2)(ii). Accordingly, 

proposed paragraph (c)(4)(ii)(C)(2)(ii) 

would state that with respect to an 

eligible veteran who meets the 

requirements of § 71.20(a) and (b) or (c), 

in the case of a reassessment that results 

in a decrease in the Primary Family 

Caregiver’s monthly stipend payment, 

the new monthly stipend payment 

under § 71.40(c)(4)(i)(A) takes effect as 

of the effective date provided in VA’s 

final notice of such decrease to the 

eligible veteran and Primary Family 


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Caregiver. It would also state that the 

effective date of the decrease will be no 

earlier than 60 days after the date that 

is 18 months after the effective date of 

a final rule under this rulemaking and 

that on such effective date, VA will 

provide advanced notice of its findings 

to the eligible veteran and Primary 

Family Caregiver. 

As a result of these proposed changes 

to the language in proposed paragraphs 

(c)(4)(ii)(C)(2)(i) and (ii), VA would also 

revise paragraph (c)(4)(ii)(C)(2) to 

remove the current language (‘‘If the 

eligible veteran meets the requirements 

of § 71.20(b) or (c), the Primary Family 

Caregiver’s monthly stipend may be 

adjusted as follows:’’) as it would no 

longer apply. VA would also add a 

heading in proposed paragraph 

(c)(4)(ii)(C)(2) that states ‘‘Decreases’’ to 

further describe the provisions proposed 

in § 71.40(c)(4)(ii)(C)(2)(i) and (ii)). 

iii. Proposed Technical Edits to 

§ 71.40(c)(4)(ii) 

VA proposes to add headings to the 

paragraphs of § 71.40(c)(4)(ii) to assist 

the reader in identifying provisions. VA 

proposes to add the heading ‘‘OPM 

updates’’ to § 71.40(c)(4)(ii)(A), the 

heading ‘‘Relocation’’ to 

§ 71.40(c)(4)(ii)(B), the heading 

‘‘Reassessments’’ to § 71.40(c)(4)(ii)(C), 

and the heading ‘‘Effective dates’’ to 

§ 71.40(c)(4)(ii)(D). 

c. Legacy Retroactive Monthly Stipend 

Payments 

Since October 1, 2020, VA has 

provided the retroactive payments 

authorized under 

§ 71.40(c)(4)(ii)(C)(2)(i) to ensure that 

Primary Family Caregivers of legacy 

participants and legacy applicants 

determined to meet the requirements of 

current § 71.20(a) receive the benefit of 

any monthly stipend payment increase 

resulting from a reassessment as of 

October 1, 2020 (the effective date of the 

July 31, 2020 Final Rule)—regardless of 

when during the five-year period after 

October 1, 2020 their reassessment is 

completed. See 85 FR 13389 (March 6, 

2020). Because it is currently within the 

five-year period in which VA intended 

to reassess legacy participants, legacy 

applicants, and their Family Caregivers, 

some reassessments have not yet 

occurred while others need to be 

repeated as a result of the Veteran 

Warriors decision. See 87 FR 57602 

(September 21, 2022). This means there 

are Primary Family Caregivers of legacy 

participants and legacy applicants who 

may still qualify for a retroactive 

monthly stipend payment. To promote 

equity among all Primary Family 

Caregivers of legacy participants and 

legacy applicants, VA proposes to 

continue providing these retroactive 

monthly stipend payments, which are 

authorized when a reassessment 

described in current 

§ 71.40(c)(4)(ii)(C)(2)(i) results in an 

increase in the monthly stipend 

payment. VA proposes to set forth the 

framework for these retroactive monthly 

stipend payments in a standalone 

paragraph in § 71.40(c)(4)(iii) that is 

distinct from the regulatory text in 

§ 71.40(c)(4)(ii)(C) governing monthly 

stipend payment increases and 

decreases resulting from a reassessment. 

VA’s proposed revisions seek to 

maintain the criteria that VA applies 

under current § 71.40(c)(4)(ii)(C)(2)(i) for 

retroactive monthly stipend payments, 

but also account for proposed changes 

to §§ 71.15 and 71.20(a)(3) in this 

proposed rule. 

VA proposes to redesignate current 

paragraphs (c)(4)(iii) and (iv) of § 71.40, 

as paragraph (c)(4)(iv) and a new 

paragraph (c)(4)(v), respectively. These 

paragraphs explain that § 71.40 shall not 

be construed to create an employment 

relationship between the Secretary and 

an individual in receipt of assistance or 

support under part 71 and that VA will 

periodically assess the monthly stipend 

rate to determine whether it meets 

certain statutory requirements, 

respectively. VA proposes to add a new 

paragraph (c)(4)(iii) with the heading 

‘‘Legacy retroactive monthly stipend 

payment’’ to account for the retroactive 

monthly stipend payments authorized 

under current § 71.40(c)(4)(ii)(C)(2)(i). 

The introduction text of proposed 

paragraph (c)(4)(iii) would state that VA 

will consider eligibility for a one-time 

legacy retroactive monthly stipend 

payment in accordance with this 

paragraph as part of the legacy 

reassessment conducted under 

§ 71.30(e) of this part. 

This proposed change would 

maintain the current requirements 

associated with retroactive monthly 

stipend payments as set forth in current 

§ 71.40(c)(4)(ii)(C)(2)(i). This would 

include the eligibility criteria in 38 

U.S.C. 1720G(a)(2)(C)(ii) and (iii) that 

VA has applied in place of the term 

need for supervision, protection, or 

instruction in 38 CFR 71.20(a)(3) and 

71.40(c)(4)(i)(A)(2) since Veteran 

Warriors. Because these specific 

eligibility criteria VA applies under 

§§ 71.20(a)(3) and 71.40(c)(4)(i)(A)(2) 

would be replaced by new regulations if 

this proposed rule were adopted as 

final, VA proposes to maintain these 

specific eligibility criteria in the 

regulation text of proposed paragraphs 

(A) and (C)(2) of proposed 

§ 71.40(c)(4)(iii) for purposes of 

determining eligibility for the 

retroactive monthly stipend payment 

under this paragraph. Maintaining the 

specific eligibility criteria that are in 

place today would ensure that VA 

applies the same criteria when 

determining eligibility for the 

retroactive monthly stipend payment for 

all Primary Family Caregivers of legacy 

participants and legacy applicants, as 

applicable, regardless of whether their 

eligibility for a retroactive monthly 

stipend payment (and the amount of 

such payment) is considered by VA 

before or after any regulation changes in 

this proposed rule take effect. 

Accordingly, proposed 

§ 71.40(c)(4)(iii) would set forth the 

specific criteria that VA currently 

applies to determine whether a legacy 

participant or legacy applicant is 

eligible under current § 71.20(a)(3), and 

whether their Primary Family Caregiver 

qualifies for the higher stipend level 

payment under current 

§ 71.40(c)(4)(i)(A)(2). To be clear, as 

proposed, § 71.40(c)(4)(iii) would apply 

only for the purpose of determining 

eligibility for a one-time retroactive 

monthly stipend payment to Primary 

Family Caregivers of legacy participants 

and legacy applicants. 

Proposed paragraph (A) of proposed 

§ 71.40(c)(4)(iii) would set forth who 

may be eligible for a retroactive monthly 

stipend payment. Proposed paragraph 

(B) would incorporate the limitations 

from current § 71.40(c)(4)(ii)(C)(2)(i) on 

when the retroactive monthly stipend 

payment applies, with minor technical 

changes. Proposed paragraph (C) would 

set forth the amount of the retroactive 

payment authorized under current 

§ 71.40(c)(4)(ii)(C)(2)(i) by incorporating 

the criteria VA applies to determine 

whether a Primary Family Caregiver 

qualifies for the higher stipend level 

payment under current 

§ 71.40(c)(4)(i)(A). Each of these 

proposed paragraphs is addressed in 

more detail below. 

In proposed § 71.40(c)(4)(iii)(A), VA 

would explain that, subject to proposed 

§ 71.40(c)(4)(iii)(B), in the case of a 

reassessment that results in an increase 

in the Primary Family Caregiver’s 

monthly stipend payment pursuant to 

proposed paragraph 

§ 71.40(c)(4)(ii)(C)(1), the Primary 

Family Caregiver may be eligible for a 

retroactive payment amount described 

in proposed paragraph 

§ 71.40(c)(4)(iii)(C) if the eligible veteran 

is a legacy participant or legacy 

applicant and meets the criteria VA 

applies to determine eligibility under 

current § 71.20(a)(3) (which may 

include the criteria in 38 U.S.C. 

1720G(a)(2)(C)(ii) and (iii) that VA has 


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22 In the case that a legacy participant or legacy 

applicant is not determined to be eligible for 

PCAFC under current § 71.20(a)(3), their Primary 

Family Caregiver would not be eligible for an 

increase in their monthly stipend payment under 

current § 71.40(c)(4)(i)(A) and thus would not 

qualify for a retroactive monthly stipend payment 

under current § 71.40(c)(4)(ii)(C)(2)(i) or proposed 

§ 71.40(c)(4)(iii). Instead, such a Primary Family 

Caregiver would continue to qualify for a monthly 

stipend payment as set forth in paragraphs (B) or 

(D) of § 71.40(c)(4)(i). 

applied since the definition of need for 

supervision, protection, or instruction 

was invalidated by Veteran Warriors). 

VA proposes to continue to require that 

legacy participants and legacy 

applicants be determined to meet the 

eligibility criteria in current 38 CFR 

71.20(a)(3) as a prerequisite for their 

Primary Family Caregiver to qualify for 

a retroactive monthly stipend 

payment.22 Accordingly, proposed 

§ 71.40(c)(4)(iii)(A) would set forth the 

criteria VA applies to determine 

eligibility under current § 71.20(a)(3) 

(that is, the criteria VA has applied 

since the definition of need for 

supervision, protection, or instruction 

was invalidated by Veteran Warriors). 

To make clear what those criteria are, 

proposed paragraph § 71.40(c)(4)(iii)(A) 

would refer to the eligible veteran being 

in need of personal care services for a 

minimum of six continuous months 

based on any one of the following: (1) 

an inability to perform an activity of 

daily living as such term is defined in 

current § 71.15; (2) a need for 

supervision or protection based on 

symptoms or residuals of neurological 

or other impairment or injury; or (3) a 

need for regular or extensive instruction 

or supervision without which the ability 

of the veteran to function in daily life 

would be seriously impaired. For 

additional discussion regarding these 

criteria, please see VA’s discussion 

above regarding proposed § 71.20(a)(3). 

Although VA is proposing to revise 

two of the seven eligibility criteria 

found in § 71.20 (criteria in paragraph 

(a)(3) and (7)), only the criteria that VA 

applies to determine eligibility under 

current § 71.20(a)(3) (which may 

include the statutory criteria in 38 

U.S.C. 1720G(a)(2)(C)(ii) and (iii)) would 

be included in proposed 

§ 71.40(c)(4)(iii)(A). That is because 

legacy participants and legacy 

applicants would already have been 

determined to meet criteria set forth in 

current and proposed § 71.20(a)(7). By 

carrying forward these criteria for 

purposes of determining whether a 

Primary Family Caregiver of a legacy 

participant or legacy applicant qualifies 

for the retroactive stipend payment, VA 

would ensure the same criteria apply to 

such a payment, regardless of whether 

the reassessment that results in a 

stipend increase occurs before or after 

the effective date of any final rule 

adopting changes to the regulations. The 

other eligibility criteria in § 71.20(a) 

would not be amended by this proposed 

rule, and thus, would not be included 

in proposed § 71.40(c)(4)(iii)(A). 

Proposed paragraph 

§ 71.40(c)(4)(iii)(B) would be identical to 

the last two sentences of current 

§ 71.40(c)(4)(ii)(C)(2)(i). However, VA 

would make the following technical and 

conforming changes. First, proposed 

paragraph (B) would cite to the 

description of the retroactive payment 

in proposed new paragraph 

§ 71.40(c)(4)(iii)(A), where applicable. 

Second, because VA proposes to add the 

criteria that VA has used in place of the 

definition of need for supervision, 

protection, or instruction in proposed 

§ 71.40(c)(4)(iii)(A), VA would exclude 

the language that refers to the criteria in 

38 U.S.C. 1720G(a)(2)(C)(ii) and (iii), the 

definition of need for supervision, 

protection, or instruction, and the 

Veteran Warriors decision and would 

instead refer to the criteria in proposed 

38 CFR 71.40(c)(4)(iii)(A). Finally, VA 

would remove the language ‘‘was 

completed by VA before March 25, 

2022, and such reassessment’’, as such 

language may inadvertently suggest that 

it excludes legacy participants, legacy 

applicants, and their Family Caregivers 

who did not have a first reassessment 

completed by VA before March 25, 

2022, which was not VA’s intent. These 

changes would maintain current 

practice and, as was discussed in VA’s 

September 21, 2022 IFR, ensure that the 

Primary Family Caregivers of all legacy 

participants and legacy applicants 

meeting the requirements of current 

§ 71.20(a) receive the benefit of any 

monthly stipend payment increase as of 

October 1, 2020, regardless of when the 

reassessment is completed prior to 

September 30, 2025. 87 FR 57606 

(September 21, 2022). VA would, 

however, revise the current text to 

account for the proposed extended 

transition period for the legacy cohort 

and the timeline for completing legacy 

reassessments (as discussed earlier in 

this rulemaking). VA would replace 

references to the five-year period 

beginning on October 1, 2020 with 

language that reflects a period beginning 

on October 1, 2020 and ending on the 

date that is 18 months after the effective 

date of a final rule under this 

rulemaking. 

With these changes, proposed 

§ 71.40(c)(4)(iii)(B) would state that if 

there is more than one reassessment for 

an eligible veteran during the period 

beginning on October 1, 2020 and 

ending on [18 months after EFFECTIVE 

DATE OF FINAL RULE], the retroactive 

payment described in proposed 

paragraph (c)(4)(iii)(A) applies only if 

the first reassessment during the 

aforementioned period results in an 

increase in the monthly stipend 

payment, and only as the result of the 

first reassessment during said period. 

Proposed § 71.40(c)(4)(iii)(B) would 

further state that notwithstanding the 

previous sentence, if the first 

reassessment during the period 

beginning on October 1, 2020 and 

ending on [18 months after EFFECTIVE 

DATE OF FINAL RULE] did not result 

in an increase in the monthly stipend 

payment, the retroactive payment 

described in proposed paragraph 

(c)(4)(iii)(A) applies to the first 

reassessment initiated by VA on or after 

March 25, 2022 that applies the criteria 

in proposed § 71.40(c)(4)(iii)(A), if such 

reassessment results in an increase in 

the monthly stipend payment, and only 

as a result of such reassessment. 

Proposed § 71.40(c)(4)(iii)(C) would 

incorporate the requirements from 

current § 71.40(c)(4)(ii)(C)(2)(i) 

regarding the amount of the retroactive 

payment, but with conforming and 

clarifying changes. First, because the 

effective date of the increase under 

proposed paragraph 

§ 71.40(c)(4)(ii)(C)(1) could be either of 

the dates in proposed paragraphs (i) or 

(ii) of that proposed paragraph, instead 

of referring to the date of the increase as 

the ‘‘date of the reassessment’’, VA 

would refer to the date of the increase 

as ‘‘the effective date of the increase 

under paragraph (c)(4)(ii)(C)(1) of this 

section’’. Second, to improve clarity, VA 

would specify that the amount of the 

retroactive payment is any difference 

between the amounts set forth in new 

proposed paragraphs (1) and (2) of 

proposed paragraph (c)(4)(iii)(C). 

Accordingly, in proposed paragraph 

§ 71.40(c)(4)(iii)(C), VA would explain 

that the retroactive payment amount 

described in proposed paragraph 

(c)(4)(iii)(A) would be any difference 

between the amounts in proposed 

paragraphs (1) and (2) of paragraph 

(c)(4)(iii)(C) for the time period 

beginning on October 1, 2020 up to the 

effective date of the increase under 

proposed paragraph (c)(4)(ii)(C)(1), 

based on the eligible veteran’s address 

on record with the Program of 

Comprehensive Assistance for Family 

Caregivers on the effective date of the 

increase under proposed paragraph 

(c)(4)(ii)(C)(1) and the monthly stipend 

rate on such date. 

Proposed paragraph (1) under 

§ 71.40(c)(4)(iii)(C) would state the first 

amount that would be used to calculate 


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the retroactive payment amount—the 

amount the Primary Family Caregiver 

was eligible to receive under paragraph 

(c)(4)(i)(B) or (D) of § 71.40, whichever 

the Primary Family Caregiver received. 

Primary Family Caregivers eligible for a 

retroactive monthly stipend payment 

under proposed paragraph 

§ 71.40(c)(4)(iii) would, up to that point, 

have been receiving a monthly stipend 

under § 71.40(c)(4)(i)(B) or (D), so VA 

would maintain in proposed paragraph 

§ 71.40(c)(4)(iii)(C)(1) this same 

language from current paragraph 

§ 71.40(c)(4)(ii)(C)(2)(i). 

Proposed paragraph (2) under 

§ 71.40(c)(4)(iii)(C) would include the 

second amount that would be used to 

calculate the retroactive payment 

amount. Consistent with the calculation 

of the monthly stipend payment under 

current § 71.40(c)(4)(i)(A), this amount 

would be the monthly stipend rate (as 

that term is defined in § 71.15) 

multiplied by 0.625 or 1.00. Under 

current § 71.40(c)(4)(i)(A), the monthly 

stipend payment is the monthly stipend 

rate multiplied by 0.625 unless the 

eligible veteran is unable to self-sustain 

in the community, in which case the 

monthly stipend rate is multiplied by 

1.00. As VA proposes to remove the 

term unable to self-sustain in the 

community and its definition from 

§ 71.15, proposed § 71.40(c)(4)(iii)(C)(2) 

would include the criteria from that 

definition, as VA has applied that term 

and its definition since the definition of 

need for supervision, protection, or 

instruction was invalidated in Veteran 

Warriors. Please see VA’s earlier 

discussion on the higher stipend level 

criteria in proposed § 71.40(c)(4)(i)(A)(2) 

for additional discussion on how VA 

interpreted and applied that section and 

the basis for a determination that an 

eligible veteran is unable to self-sustain 

in the community since the Veteran 

Warriors decision. 

Accordingly, proposed paragraph 

§ 71.40(c)(4)(iii)(C)(2) would refer to the 

monthly stipend rate multiplied by 

0.625, but also specify that if the eligible 

veteran meets at least one of the 

following criteria, the monthly stipend 

rate would be multiplied by 1.00: (i) the 

eligible veteran requires personal care 

services each time they complete three 

or more of the seven activities of daily 

living (ADL) listed in the definition of 

an ‘‘inability to perform an activity of 

daily living’’ as such term is defined in 

38 CFR 71.15 (2021), and is fully 

dependent on a caregiver to complete 

such ADLs; (ii) the eligible veteran has 

a need for supervision or protection 

based on symptoms or residuals of 

neurological or other impairment or 

injury on a continuous basis; or (iii) the 

eligible veteran has a need for regular or 

extensive instruction or supervision 

without which the ability of the veteran 

to function in daily life would be 

seriously impaired on a continuous 

basis. Including this language in 

proposed § 71.40(c)(4)(iii)(C)(2) would 

maintain the same criteria that VA 

applies when determining the 

retroactive monthly stipend payment 

under current § 71.40(c)(4)(ii)(C)(2)(i). 

Maintaining these requirements would 

promote equity in calculating such 

payments among all Primary Family 

Caregivers who qualify to receive them, 

because the same requirements would 

apply regardless of whether the 

reassessment and retroactive monthly 

stipend payment determination occurs 

before or after the date that any 

regulation changes would take effect, if 

adopted as proposed. To be clear, 

proposed § 71.40(c)(4)(iii)(C)(2) would 

apply only for the purpose of calculating 

the retroactive monthly stipend 

payment for Primary Family Caregivers 

of legacy participants and legacy 

applicants when they are eligible to 

receive such a payment. 

H. 38 CFR 71.45 Revocation and 

Discharge of Family Caregivers 

In § 71.45, VA describes the bases for 

revocation and discharge of a Family 

Caregiver from PCAFC, the associated 

effective dates, and instances in which 

benefits are continued after revocation 

or discharge, as applicable. In this 

rulemaking, VA proposes several 

amendments to § 71.45 to address 

additional bases for revocation and 

discharge and to make other substantive 

and technical edits as explained below. 

VA first proposes technical changes to 

§ 71.45 to modify certain references to 

‘‘days’’ to instead reference ‘‘months’’. 

Specifically, VA proposes to make these 

changes in VA’s regulations that 

authorize the continuation of caregiver 

benefits in certain cases of revocation 

and discharge. These changes would 

ensure VA’s regulations are consistent 

with the manner in which VA calculates 

the monthly stipend payment during 

these continued benefit periods. For 

reference, the term monthly stipend rate 

is defined in § 71.15 to refer to the 

applicable OPM GS Annual Rate 

divided by 12. Pursuant to this 

definition, each Primary Family 

Caregiver’s monthly stipend payment is 

the same amount each month, regardless 

of the number of days in the month. 

Accordingly, the IT system supporting 

CSP, CARMA, applies a monthly rate 

when VA calculates and issues monthly 

stipend payments to Primary Family 

Caregivers, including monthly stipend 

payments authorized during a period of 

continued benefits following revocation 

and discharge under § 71.45. Although 

VA’s regulations in § 71.45 currently 

refer to continuation of caregiver 

benefits for 30, 60, or 90 days, 

depending on the basis for revocation or 

discharge, VA currently calculates 

stipends for those time periods by 

equating 30, 60, and 90 days to one, 

two, and three months, respectively. 

This approach aligns with VA’s current 

IT functionality and avoids manual 

processes that would be required to 

apply a prorated daily rate for 30-, 

60-, or 90-day periods of continued 

caregiver benefits, which would be 

resource intensive and could result in 

delays and errors. VA believes that the 

costs associated with applying a 

prorated daily rate would be significant, 

especially when compared to the 

nominal differences between applying 

the monthly stipend rate as compared to 

a prorated daily rate in calculating 

stipends during periods of continued 

benefits. To ensure VA’s regulations 

conform with current practice, VA 

proposes to replace references to 30, 60, 

and 90 days with one, two, and three 

months, respectively, in the context of 

§ 71.45 provisions that address the 

continuation of caregiver benefits after 

revocation or discharge. VA identifies 

these specific proposed changes 

throughout the discussion below on 

proposed changes to § 71.45, where 

applicable. 

1. Proposed Revisions to § 71.45(a) 

Regarding Revocation of a Family 

Caregiver 

VA proposes to revise § 71.45(a) to 

add a basis for revocation of a Family 

Caregiver and, in § 71.45(a)(3), to revise 

the time period for continuing benefits 

and to remove the opt out provision. 

a. Proposed Basis for Revocation When 

an Eligible Veteran or Family Caregiver 

No Longer Resides in a State 

Current § 71.45(a)(1) establishes the 

bases for revocation of a Family 

Caregiver, and paragraphs (i) through 

(iii) of § 71.45(a)(1) set forth the bases on 

which VA may revoke the designation 

of a Family Caregiver—for cause, 

noncompliance, and VA error, 

respectively. VA proposes to add 

another basis for revocation of a Family 

Caregiver under a new paragraph (iv) of 

§ 71.45(a)(1). 

Proposed § 71.45(a)(1)(iv) would state 

that VA will revoke the designation of 

a Family Caregiver when the eligible 

veteran or Family Caregiver no longer 

resides in a State. In addition, VA 

proposes to include a note that states 

that if an eligible veteran no longer 

resides in a State, VA will revoke the 


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designation of each of the eligible 

veteran’s Family Caregivers. As 

explained above, VA proposes to define 

the term State in § 71.15 (consistent 

with the definition of such term in 38 

U.S.C. 101(20)). Therefore, the term 

State in proposed § 71.45 (that is, in 

proposed § 71.45(a)(1)(iv) and in 

proposed § 71.45(a)(2)(v), discussed 

below) would have the meaning set 

forth in proposed § 71.15 and 38 U.S.C. 

101(20). 

As explained in current 38 CFR 

71.10(b), benefits under PCAFC and 

PGCSS are provided only to those 

individuals residing in a State as that 

term is defined in 38 U.S.C. 101(20). 

Therefore, an individual residing 

outside a State is not eligible for PCAFC 

or the benefits associated with PCAFC, 

and VA currently revokes the 

designation of the Family Caregiver 

when the Family Caregiver or the 

eligible veteran no longer resides in a 

State, consistent with 38 CFR 71.10(b). 

Because current § 71.45 does not 

contain a specific basis for revocation or 

discharge based on the Family Caregiver 

or eligible veteran no longer residing in 

a State, unless another basis of 

revocation or discharge applies 

pursuant to § 71.45(f), revocation on this 

basis is carried out pursuant to current 

§ 71.45(a)(1)(ii)(E), which is a ‘‘catch-all 

category’’ for requirements under part 

71 that are not otherwise accounted for 

in § 71.45(a) or (b). 85 FR 13396 (March 

6, 2020). VA explained in its March 6, 

2020 Proposed Rule that, if VA found 

that ‘‘this basis for revocation is 

frequently relied upon, then VA would 

consider proposing additional specific 

criteria for revocation or discharge 

under this section in a future 

rulemaking.’’ Id. While the frequency of 

cases in which a PCAFC participant has 

moved and resided outside of a State 

has not been exceedingly high, such 

instances have occurred with enough 

frequency that VA believes a specific 

basis for revocation should apply. This 

change, if adopted, would help ensure 

transparency regarding revocation when 

a PCAFC participant resides outside of 

a State and, along with proposed 

§ 71.45(a)(2)(v), identify the specific 

requirements associated with revocation 

on this basis. VA also asserts that this 

proposal would improve VA’s ability to 

track the frequency of revocation on this 

basis. Thus, through this rulemaking, 

VA proposes to add a basis for 

revocation based on the eligible veteran 

or Family Caregiver no longer residing 

in a State. 

VA proposes to establish this as a 

basis for revocation rather than a basis 

for discharge. This is because, as 

discussed in VA’s March 6, 2020 

Proposed Rule, the term ‘‘discharge’’ is 

commonly used in health care settings 

to describe the process that occurs when 

a patient no longer meets the criteria for 

the level of care being provided or when 

a patient is transferred to another 

facility or program to receive care. See 

85 FR 13394 (March 6, 2020). VA 

further explained that revocation would 

apply to removals based on a VA error 

or a deliberate action or inaction on the 

part of the eligible veteran or Family 

Caregiver. Id. Because residing outside 

of a State is an action taken by an 

eligible veteran, Family Caregiver, or 

both, VA believes revocation is the 

appropriate categorization for this new 

basis. 

Proposed § 71.45(a)(1)(iv) would 

include a note specifying, consistent 

with current practice, that in such 

instances when the eligible veteran no 

longer resides in a State, VA would 

revoke the designation of each of the 

eligible veteran’s Family Caregivers. 

This is because approval and 

designation of a Family Caregiver is 

conditioned upon the eligible veteran 

remaining eligible for PCAFC. See 38 

CFR 71.25(f). If the veteran or 

servicemember is no longer eligible for 

PCAFC, VA would have no basis to 

continue providing PCAFC benefits to 

their caregiver(s). Consistent with all 

other bases for revocation and 

discharge, if the eligible veteran no 

longer meets PCAFC eligibility criteria, 

each of the approved and designated 

Family Caregivers of the eligible veteran 

are discharged or revoked as 

appropriate. However, if a Family 

Caregiver no longer resides in a State, 

the eligible veteran could remain 

eligible for PCAFC if the eligible veteran 

and at least one Family Caregiver 

continues to reside in a State. 

Current § 71.45(a)(2) explains that 

benefits available through PCAFC will 

continue to be provided to the Family 

Caregiver until the date of revocation 

and further sets forth the revocation 

date for the various revocation bases 

under § 71.45(a)(1). 

In order to address the additional 

basis for revocation VA proposes in 

paragraph § 71.45(a)(1)(iv), as described 

above, VA also proposes to add a new 

paragraph § 71.45(a)(2)(v) to set forth the 

revocation date in the case of revocation 

on the basis of a PCAFC participant no 

longer residing in a State. Proposed 

§ 71.45(a)(2)(v)(A) would explain that in 

the case of a revocation based on 

§ 71.45(a)(1)(iv) (that is, when the 

eligible veteran or Family Caregiver no 

longer resides in a State), the date of 

revocation would be the earlier of the 

following dates, as applicable: (1) the 

date the eligible veteran no longer 

resides in a State; or (2) the date the 

Family Caregiver no longer resides in a 

State. VA believes that it is reasonable 

to stop benefits as of the earlier of these 

two dates because PCAFC is not 

available to individuals who reside 

outside of a State. 

Proposed § 71.45(a)(2)(v)(B) would 

explain that if VA cannot identify the 

date the eligible veteran or Family 

Caregiver, as applicable, no longer 

resides in a State, the date of revocation 

based on paragraph (a)(1)(iv) of § 71.45 

would be the earliest date known by VA 

that the eligible veteran or Family 

Caregiver, as applicable, no longer 

resides in a State, but no later than the 

date on which VA identifies the eligible 

veteran or Family Caregiver, as 

applicable, no longer resides in a State. 

VA makes determinations that the 

Family Caregiver or eligible veteran no 

longer reside in a State based on 

information a CSP Team receives 

directly from the eligible veteran and/or 

Family Caregiver(s), or through 

information received indirectly such as 

through information available in 

medical record documentation. It is 

expected, and it has been VA’s 

experience, that eligible veterans and/or 

their Family Caregiver(s) inform VA of 

a relocation out of a State prior to such 

move occurring so that VA staff can 

assist them with planning to transition 

out of PCAFC. VA staff may be able to 

offer support or resources regarding 

transferring the care of the eligible 

veteran, help facilitate medical 

appointments prior to an eligible 

veteran’s move, or engage in other such 

activities to plan for participants to 

transition out of PCAFC. However, such 

direct notification to VA of an 

anticipated move outside of a State may 

not always occur. In some cases, CSP 

Teams have learned of a planned move 

not because the CSP Team was directly 

informed but through other means. For 

example, the eligible veteran may 

update the demographic information 

contained in their health record to 

reflect a new address which is outside 

of a State or may contact their primary 

care team to cancel an upcoming 

appointment due to their relocation 

outside of a State. Similarly, the Family 

Caregiver may inform an eligible 

veteran’s health care provider after the 

relocation out of a State has occurred 

such that they have already moved and 

no longer reside in a State. This 

information is usually identified at the 

time the eligible veteran and Family 

Caregiver(s) are contacted to schedule a 

wellness contact. 

Overpayments may result in cases of 

revocation based on proposed 

§ 71.45(a)(1)(iv) and (a)(2)(v) because 


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information about an eligible veteran’s 

and/or Family Caregiver’s relocation out 

of a State is not always communicated 

in advance. An overpayment could 

result when there is a delay between the 

date an eligible veteran or Family 

Caregiver no longer resides in a State 

and the date that VA becomes aware of 

the relocation and initiates revocation 

accordingly. Pursuant to §§ 71.45(d) and 

71.47, VA would seek to recover 

overpayments of benefits, as applicable, 

including in cases of revocation under 

proposed § 71.45(a)(1)(iv). This is the 

case when overpayments occur as a 

result of other bases of revocation or 

discharge. To prevent situations such as 

this, VA encourages eligible veterans 

and Family Caregivers to notify their 

CSP Team in advance of any changes 

that may impact their ongoing PCAFC 

eligibility. 

VA would not provide a period of 60- 

day advanced notice or a period of 

continued benefits in the case of 

revocation under this proposed basis. 

This is because, as VA explained in its 

July 31, 2020 Final Rule, it is not 

feasible to provide PCAFC benefits 

outside of a State, and VA incorporates 

that discussion by reference here. See 85 

FR at 46227 (July 31, 2020). VA believes 

that this proposed approach to 

effectuate the revocation pursuant to 

proposed § 71.45(a)(2)(v) and to recover 

any overpayments is reasonable. 

Discontinuing benefits as close as 

possible to the date the individual no 

longer resides in a State, if not on such 

date, would minimize the amount of 

overpayment subject to recoupment. 

b. Proposed Revision to Time Period for 

Continuing Benefits and Removal of Opt 

Out in § 71.45(a)(3) 

Current § 71.45(a)(3) describes the 

continuation of benefits in the case of 

revocation based on VA error under 

§ 71.45(a)(1)(iii). Specifically, current 

paragraph (a)(3) states that in the case of 

revocation based on VA error under 

paragraph (a)(1)(iii) of § 71.45, caregiver 

benefits will continue for 60 days after 

the date of revocation unless the Family 

Caregiver opts out of receiving such 

benefits. Paragraph (a)(3) also states that 

continuation of benefits under this 

paragraph will be considered an 

overpayment and VA will seek to 

recover overpayment of such benefits as 

provided in § 71.47. 

VA proposes to revise the first 

sentence in paragraph (a)(3) to correct 

for challenges VA has experienced 

associated with the current regulation 

text. As proposed, the first sentence of 

paragraph (a)(3) would state that in the 

case of revocation based on VA error 

under paragraph (a)(1)(iii) of § 71.45, 

caregiver benefits will continue for two 

months after the date VA issues notice 

of revocation. VA explains proposed 

revisions below. 

First, VA proposes to replace ‘‘after 

the date of revocation’’ with ‘‘after the 

date VA issues notice of revocation’’ in 

the regulation text. This revision would 

change the start date for the period of 

continued benefits. VA’s intent with the 

current language was to provide 

advance notice prior to terminating 

benefits, even if such benefits would be 

considered an overpayment and subject 

to recoupment. As explained in the 

March 6, 2020 Proposed Rule, ‘‘[t]his 

extended period of benefits would give 

the Family Caregiver time to adjust 

before benefits are terminated’’, as ‘‘[i]n 

such cases, the Family Caregiver may 

have come to rely on the benefits that 

were authorized as a result of a VA 

error.’’ 85 FR 13397 (March 6, 2020). 

However, the phrase ‘‘60 days after the 

date of revocation’’ does not allow for 

the continuation of benefits if the 

effective date of revocation is in the 

past. For example, if in July, VA learns 

of and initiates revocation based upon a 

VA error that was made in January, the 

revocation date would be in January. 

Providing benefits for 60 days beyond 

the date of revocation would not allow 

for the advanced notice period that VA 

intended to authorize in § 71.45(a)(3) 

because the 60-day period would 

already have passed. By replacing ‘‘60 

days after the date of revocation’’ with 

‘‘two months after the date VA issues 

notice of revocation’’ in proposed 

§ 71.45(a)(3), VA believes the proposed 

revised text would permit VA to provide 

advance notice before PCAFC benefits 

are discontinued and resolve this issue 

with the current regulation text and any 

confusion it has caused. 

In the aforementioned example, under 

proposed paragraph (a)(3), if VA issues 

notice of revocation in July, the date of 

revocation would still be in January, but 

caregiver benefits would continue to be 

provided for two months after the date 

in July that VA issues notice of 

revocation. All benefits provided 

following the date of revocation in 

January would still be considered an 

overpayment, including the benefits 

provided during the two months after 

the date in July that VA issues notice of 

revocation, and VA seeks to recover 

overpayment of such benefits as 

provided in § 71.47. As provided in the 

last sentence of current § 71.45(a)(3), 

which VA does not propose to revise in 

this proposed rule, continuation of 

benefits under § 71.45(a)(3) will be 

considered an overpayment and VA will 

seek to recover overpayment of such 

benefits as provided in § 71.47. 

Second, VA proposes to remove the 

language in § 71.45(a)(3) regarding the 

ability of the Family Caregiver to opt out 

of receiving continued benefits for 60 

days after the date of revocation, in the 

case of revocation due to VA error. VA 

acknowledges that the number of 

revocations on this basis is very small. 

However, when they do occur, VA 

generally does not receive the Family 

Caregiver’s decision to opt out of 

receiving continued benefits for the 60- 

day period, specifically the monthly 

stipend payment, with sufficient time 

for VA to stop the issuance of the 

monthly stipend payment. This means 

that VA, despite not knowing if the 

Primary Family Caregiver intends to opt 

out, must either proceed with issuing 

the continued monthly stipend payment 

or place a hold on issuing the payment 

until the Primary Family Caregiver’s opt 

out decision is received, the latter of 

which effectively pauses the monthly 

stipend payment and thereby interferes 

with the intended purpose of this 

extended benefit period. Because it has 

proven to be unworkable, VA proposes 

to remove this language concerning the 

ability of the Family Caregiver to opt out 

of receiving continued benefits for the 

60 days after the date of revocation. VA 

believes that the number of instances in 

which this basis for revocation applies 

will continue to be very small, and the 

costs associated with providing the 

option to opt out outweigh any benefits 

of maintaining this provision. The 

current manual process in place to 

execute the opt out is resource intensive 

and unsustainable. If this proposed 

change is adopted in a final rule, VA 

would ensure the change is 

communicated to PCAFC participants at 

the time of approval and designation of 

a Family Caregiver and periodically 

throughout their PCAFC participation. 

Again, continuation of benefits under 

this paragraph will be considered an 

overpayment and VA will seek to 

recover overpayment of such benefits as 

provided in § 71.47. 

Finally, current paragraph (a)(3) 

provides for 60 days of continued 

benefits in the case of revocation based 

on VA error under paragraph (a)(1)(iii). 

However, VA proposes to remove the 

language ‘‘60 days’’ and in its place, add 

the language ‘‘two months’’. VA’s 

rationale for this change is explained in 

more detail above and is proposed 

because of the manner in which VA 

calculates monthly stipend payments. 

As proposed, paragraph (a)(3) would 

state that in the case of revocation based 

on VA error under paragraph (a)(1)(iii) 

of § 71.45, caregiver benefits will 

continue for two months after the date 

VA issues the notice of revocation. It 


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would also state that continuation of 

benefits under this paragraph will be 

considered an overpayment and VA will 

seek to recover overpayment of such 

benefits as provided in § 71.47. 

2. Proposed Revisions to § 71.45(b) 

Regarding Discharge of a Family 

Caregiver 

Paragraph (b) of § 71.45 addresses 

bases for discharge, dates of discharge, 

rescission of certain discharge requests, 

and continuation of benefits following 

discharge. Under paragraph (b)(1), VA 

proposes to make several changes 

regarding discharge due to the eligible 

veteran, including the addition of new 

bases for discharge. VA also proposes to 

add an additional basis for discharge 

due to the Family Caregiver under 

paragraph (b)(2) and to allow for 

rescission of a discharge request under 

paragraph (b)(3). These and other 

proposed changes to § 71.45(b) are 

discussed below. 

a. Proposed Revisions to Discharge 

Based on Institutionalization of the 

Eligible Veteran 

Current § 71.45(b)(1) addresses the 

bases for discharge due to the eligible 

veteran. Under this paragraph, a Family 

Caregiver will be discharged when the 

eligible veteran does not meet the 

requirements of § 71.20(a)(1) through (4) 

because of improvement in their 

condition or otherwise, or when the 

eligible veteran dies or is 

institutionalized. See § 71.45(b)(1)(i)(A) 

and (B). VA proposes to make several 

revisions to paragraph (b)(1) as it relates 

to discharge based on death or 

institutionalization. 

First, VA would remove the last 

sentence from current § 71.45(b)(1)(i)(B) 

that explains that in the instance of 

institutionalization of the eligible 

veteran, notification to VA of such 

institutionalization must indicate 

whether the eligible veteran is expected 

to be institutionalized for 90 or more 

days from the onset of 

institutionalization. VA has found that 

it is not necessary for such notice to 

indicate whether the eligible veteran is 

expected to be institutionalized for 90 or 

more days from the onset of 

institutionalization as VA has other 

means of collecting this information. 

What is most critical is that VA receive 

notification of institutionalization of the 

eligible veteran. At that point, VA can 

work with the eligible veteran and/or 

Family Caregiver to obtain additional 

information that may be necessary for 

purposes of determining whether 

discharge should be initiated and also 

facilitate other appropriate actions, such 

as referrals for additional support, as 

applicable. 

VA therefore proposes to remove the 

requirement to indicate whether the 

eligible veteran is expected to be 

institutionalized for 90 days or more 

from the onset of institutionalization 

when providing notice to VA of such 

institutionalization as VA has found it 

to be unnecessary and potentially 

burdensome. VA does not anticipate any 

changes to PCAFC administration or the 

practical application of this basis of 

discharge if this requirement is removed 

as proposed. 

While VA is proposing to remove the 

last sentence of § 71.45(b)(1)(i)(B), VA’s 

regulations would still include the 

requirement that VA must receive 

notification of death or 

institutionalization of the eligible 

veteran as soon as possible but not later 

than 30 days from the date of death or 

institutionalization. Failure to provide 

timely notification of death or 

institutionalization of an eligible 

veteran, as required by 

§ 71.45(b)(1)(i)(B), could result in 

overpayments of benefits to the Family 

Caregiver, which are subject to 

recoupment pursuant to § 71.47. 

VA also proposes to make a clarifying 

edit to current § 71.45(b)(1)(ii)(B), which 

explains that for discharges based on 

paragraph (b)(1)(i)(B) (that is, those 

discharges due to the death or 

institutionalization of the eligible 

veteran), the date of discharge will be 

the earliest of the specified dates, as 

applicable, which includes under 

current paragraph (2), the date that 

institutionalization begins, if it is 

determined that the eligible veteran is 

expected to be institutionalized for a 

period of 90 days or more. 

VA proposes to revise 

§ 71.45(b)(1)(ii)(B)(2) to refer to the date 

that the institutionalization begins, if it 

is ‘‘known on such date’’ that the 

eligible veteran is expected to be 

institutionalized for a period of 90 days 

or more. VA proposes to revise the 

current language from ‘‘if it is 

determined’’ to ‘‘if it is known on such 

date’’ to make clear that the discharge 

would take effect on the date the 

institutionalization begins under 

paragraph (b)(1)(ii)(B)(2) only when it is 

known at the onset of 

institutionalization that such 

institutionalization will be for 90 days 

or more. This aligns with how VA has 

implemented paragraph (b)(1)(ii)(B)(2) 

since this provision became effective. 

Therefore, this proposed change would 

not result in a change to VA’s current 

practice but would clarify how VA has 

implemented the date of discharge. 

b. Proposed Additional Bases for 

Discharge of a Family Caregiver Due to 

the Eligible Veteran 

Under § 71.45(b)(1), VA proposes to 

include two new bases for discharging 

the Family Caregiver. First, proposed 

§ 71.45(b)(1)(i)(C) would include an 

existing basis for discharge based on a 

Family Caregiver’s request for discharge 

due to domestic violence (DV) or 

intimate partner violence (IPV) 

perpetrated by the eligible veteran 

against the Family Caregiver. Current 

§ 71.45(b)(3)(iii)(B) accounts for such 

basis within the context of discharge 

based on the request of the Family 

Caregiver. Such paragraph explains that 

if the Family Caregiver requests 

discharge due to DV or IPV perpetrated 

by the eligible veteran against the 

Family Caregiver, caregiver benefits will 

continue for 90 days after the date of 

discharge when any of the following can 

be established: (1) the issuance of a 

protective order, to include interim, 

temporary and/or final protective 

orders, to protect the Family Caregiver 

from DV or IPV perpetrated by the 

eligible veteran; (2) a police report 

indicating DV or IPV perpetrated by the 

eligible veteran against the Family 

Caregiver or a record of an arrest related 

to DV or IPV perpetrated by the eligible 

veteran against the Family Caregiver; or 

(3) documentation of disclosure of DV 

or IPV perpetrated by the eligible 

veteran against the Family Caregiver to 

a treating provider (for example, 

physician, dentist, psychologist, 

rehabilitation therapist) of the eligible 

veteran or Family Caregiver, Intimate 

Partner Violence Assistance Program 

(IPVAP) Coordinator, therapist or 

counselor. 

VA would move this basis from 

current § 71.45(b)(3)(iii) to new 

proposed paragraphs (b)(1)(i)(C), 

(b)(1)(ii)(C), and (b)(1)(iii)(B), as this 

basis for discharge is due to the eligible 

veteran. VA does not propose to make 

any substantive changes to the 

provisions in current paragraph 

(b)(3)(iii)(B). Using language in current 

paragraph (b)(3)(iii)(B), proposed 

paragraph (b)(1)(i)(C) would state that 

the Family Caregiver will be discharged 

based on the Family Caregiver 

requesting discharge due to DV or IPV 

perpetrated by the eligible veteran 

against the Family Caregiver. As 

discussed below, proposed paragraph 

(b)(1)(ii)(C) would provide the date of 

discharge on this basis, and proposed 

paragraphs (b)(1)(iii)(B)(1) through (3) 

would include the language in current 

paragraph (b)(3)(iii)(B)(1) through (3) 

regarding the documentation that would 

be required to be provided to VA for the 


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Family Caregiver to receive three 

months of continued benefits. 

Because VA proposes to add new 

paragraph (b)(1)(i)(C), which would not 

require a VA determination but rather 

would be described as a request from 

the Family Caregiver, VA would make 

conforming edits to paragraphs (b)(1)(i) 

and (b)(1)(i)(A). In paragraph (b)(1)(i), 

VA would remove the language ‘‘when 

VA determines’’ and replace it with 

‘‘based on’’. Thus, as proposed, 

paragraph (b)(1)(i) would state that 

except as provided in paragraph (f) of 

§ 71.45, the Family Caregiver will be 

discharged from Program of 

Comprehensive Assistance for Family 

Caregivers based on any of the 

following. 

Paragraph (b)(1)(i)(A) currently 

addresses situations where the eligible 

veteran does not meet the requirements 

of § 71.20 because of improvement in 

the eligible veteran’s condition or 

otherwise. Because of VA’s proposed 

changes to paragraph (b)(1)(i), VA 

proposes to add language to make clear 

that paragraph (b)(1)(i)(A) is a VA 

determination. Thus, VA proposes to 

revise § 71.45(b)(1)(i)(A) to add ‘‘VA 

determines’’. Proposed paragraph 

(b)(1)(i)(A) would state that except as 

provided in paragraphs (a)(1)(ii)(A) and 

(b)(1)(i)(B) of § 71.45, VA determines the 

eligible veteran does not meet the 

requirements of § 71.20 because of 

improvement in the eligible veteran’s 

condition or otherwise. 

Because proposed paragraph (b)(1)(i) 

would set forth additional bases for 

discharge due to the eligible veteran 

(that is, bases in addition to those set 

forth in current paragraph (b)(1)(i)(A) 

and (B)), VA also proposes to remove 

the ‘‘or’’ at the end of current paragraph 

(b)(1)(i)(A) and to replace the period at 

the end of current paragraph (b)(1)(i)(B) 

with a semicolon. These proposed 

changes to paragraphs (b)(1)(i) and 

(b)(1)(i)(A), and to the punctuation at 

the end of paragraph (b)(1)(i)(B) would 

be technical revisions that are not 

intended to have a substantive impact. 

The second basis VA proposes to add 

to § 71.45(b)(1)(i) is for cases where VA 

determines that unmitigated personal 

safety issues exist for the Family 

Caregiver due to DV or IPV by the 

eligible veteran against the Family 

Caregiver. This would be added in a 

new proposed paragraph (b)(1)(i)(D). 

This basis of discharge would be 

applied by VA to initiate discharge due 

to DV or IPV by the eligible veteran 

against the Family Caregiver when VA 

determines that unmitigated personal 

safety issues exist for the Family 

Caregiver. Currently in such 

circumstances, VA may initiate 

revocation (rather than discharge) of the 

Family Caregiver for cause or 

noncompliance, in which case extended 

benefits would not be available for the 

Family Caregiver. VA believes that 

including this new basis for discharge 

would better support Family Caregivers 

who may be determined no longer 

eligible for PCAFC because of factors 

resulting from DV or IPV, and proposes 

to include a provision for extended 

benefits as discussed below. The 

addition of this basis for discharge 

would provide a standard process when 

VA determines that unmitigated 

personal safety issues exist for the 

Family Caregiver due to DV or IPV. 

In VA’s experience working with 

participants in PCAFC, VA has 

identified instances of severe and/or 

escalating violence by the eligible 

veteran directed at the Family Caregiver, 

but the Family Caregiver does not 

request discharge and attempts to 

continue to provide personal care 

services to the eligible veteran. VA also 

identified instances where the existence 

or threat of violence impacts the Family 

Caregiver’s ability to provide required 

personal care services, and/or the 

eligible veteran’s willingness to receive 

personal care services from the Family 

Caregiver. VA has also witnessed the 

detrimental impacts that DV and IPV 

can have on the well-being of both the 

Family Caregiver as well as the eligible 

veteran, which can negatively impact 

the caregiving relationship. This is not 

to suggest that any act which may be 

considered violent or aggressive 

inherently impacts one’s ability to 

provide or receive personal care 

services. DV and IPV occur on a 

spectrum of frequency and severity and 

may range from verbal insults to 

physical violence. Such acts of 

aggression toward the Family Caregiver 

may occur when the Family Caregiver is 

attempting to provide personal care 

services, or at unrelated and isolated 

times. 

It is not VA’s intent with proposed 

§ 71.45(b)(1)(i)(D) to discharge a Family 

Caregiver solely due to the presence of 

DV or IPV. In fact, VA encourages 

identification and disclosure of DV or 

IPV and would continue to encourage 

such disclosure if this proposed change 

is adopted in a final rule so that 

additional support and resources can be 

made available to the Family Caregiver 

during PCAFC participation. The 

determination of whether to initiate 

discharge under this basis would be a 

clinical determination made by VA that 

would include consideration of the 

frequency and/or severity of the DV or 

IPV. VA would rely on clinical 

guidelines when making determinations 

as to whether unmitigated personal 

safety issues exist for the Family 

Caregiver under proposed 

§ 71.45(b)(1)(i)(D). These guidelines 

would include but are not limited to 

consideration of the risk of harm or 

lethality to the Family Caregiver, the 

impact of DV or IPV on the Family 

Caregiver’s ability to provide personal 

care services and the quality of such 

services. VA also would take into 

consideration whether the dynamic 

between the eligible veteran and Family 

Caregiver poses a safety risk to VA staff 

such that home visits as part of this 

program could not be safely conducted, 

as such a safety risk may be indicative 

of the frequency and/or severity of the 

DV or IPV. 

VA may become aware of DV or IPV 

against a Family Caregiver through 

various means, including but not 

limited to during evaluations of PCAFC 

eligibility and wellness contacts, 

through disclosure to VA by the eligible 

veteran or Family Caregiver; through 

observations; through information 

provided to VA by family members, 

friends, providers, or others; or through 

chart reviews. If this proposed basis for 

discharge is adopted in a final rule and 

VA identifies DV or IPV, VA would 

attempt to work with the eligible 

veteran and Family Caregiver, as 

applicable, to identify supports and 

services that may be available to meet 

their needs, including potential referral 

to the local IPVAP coordinator, and 

safety planning. 

VA proposes to add this new 

discharge basis for instances when DV 

or IPV by the eligible veteran against the 

Family Caregiver presents personal 

safety issues for the Family Caregiver, 

which are unmitigated. As in cases 

where the Family Caregiver requests 

discharge pursuant to proposed 

§ 71.45(b)(1)(i)(C), this new proposed 

discharge basis under § 71.45(b)(1)(i)(D) 

would also be included under 

§ 71.45(b)(1) because the reason for 

discharge would be due to the eligible 

veteran. This would make clear that the 

behaviors of the eligible veteran are the 

reason for the discharge on this basis. 

VA welcomes and request public 

comment on this proposed basis for 

discharge when VA determines that 

unmitigated safety issues exist for the 

Family Caregiver due to DV or IPV by 

the eligible veteran and what VA should 

consider in making these 

determinations if this proposed basis is 

adopted in a final rule. 

Additionally, because VA proposes to 

add additional bases for discharge due 

to the eligible veteran under new 

proposed paragraphs § 71.45(b)(1)(i)(C) 

and (D) (that is, when the Family 


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Caregiver requests discharge due to DV 

or IPV perpetrated by the eligible 

veteran against the Family Caregiver 

and when VA determines unmitigated 

personal safety issues exist for the 

Family Caregiver due to DV or IPV by 

the eligible veteran against the Family 

Caregiver), VA proposes to add 

paragraphs (b)(1)(ii)(C) and (D) to 

address the dates of discharge 

associated with these two new proposed 

bases. 

VA proposes to add § 71.45(b)(1)(ii)(C) 

to state that for discharge based on 

paragraph (b)(1)(i)(C) (that is, when the 

Family Caregiver requests discharge due 

to DV or IPV perpetrated by the eligible 

veteran against the Family Caregiver), 

the date of discharge would be the 

present or future date provided by the 

Family Caregiver or the date of the 

Family Caregiver’s request for discharge 

if the Family Caregiver does not provide 

a date. Proposed § 71.45(b)(1)(ii)(C) 

would also state that if the request does 

not include an identified date of 

discharge, VA would contact the Family 

Caregiver to request a date, and if 

unable to successfully obtain this date, 

discharge would be effective as of the 

date of the request. This would be 

consistent with current paragraph 

(b)(3)(ii) which explains the discharge 

date in instances when the Family 

Caregiver requests discharge, including 

due to DV or IPV. 

Proposed § 71.45(b)(1)(ii)(D) would 

explain that for discharge based on 

paragraph (b)(1)(i)(D) (that is, discharge 

of the Family Caregiver based on VA 

determining that unmitigated personal 

safety issues exist for the Family 

Caregiver due to DV or IPV by the 

eligible veteran against the Family 

Caregiver), the date of discharge would 

be the date VA issues notice of its 

determination. This would refer to the 

date VA issues notice of its 

determination that unmitigated personal 

safety issues exist for the Family 

Caregiver due to DV or IPV by the 

eligible veteran against the Family 

Caregiver, such that VA is discharging 

the Family Caregiver. VA proposes to 

use the date VA issues notice of its 

determination because in these 

situations VA would be making this 

determination as it sees significant risk 

to safety and the well-being of the 

Family Caregiver. Once a determination 

is made that unmitigated personal safety 

issues exist for the Family Caregiver, VA 

does not propose to provide a period of 

advanced notice prior to discharge. 

However, VA does not believe that, in 

general, a decision by VA to discharge 

on this basis would be unexpected. This 

is because, as discussed previously, VA 

encourages identification and disclosure 

of DV or IPV at the earliest opportunity 

so that support and resources can be 

made available. VA would work with 

the Family Caregiver, and the eligible 

veteran, as applicable, to identify needs 

and options, and through these 

interactions, would discuss the impact 

such DV or IPV within the caregiving 

relationship could have on PCAFC 

participation. Further, VA would ensure 

that this basis for discharge is 

communicated to PCAFC participants 

upon approval and designation of a 

Family Caregiver, and periodically 

throughout their participation in 

PCAFC, as VA does with all other 

discharge and revocation reasons. If this 

basis for discharge is adopted in a final 

rule, VA would also ensure it is 

reviewed with the Family Caregiver and 

eligible veteran when DV or IPV is 

identified. It is VA’s intent that the 

provision of such information would 

assist the Family Caregiver in making 

informed decisions related to their 

caregiving role. 

Current § 71.45(b)(1)(iii) explains that 

caregiver benefits will continue for 90 

days after the date of discharge for those 

Family Caregivers discharged pursuant 

to the bases in paragraph (b)(1)(i). 

Because of the additional bases for 

discharge that VA proposes to add to 

paragraph (b)(1)(i) (that is, when the 

Family Caregiver requests discharge due 

to DV or IPV perpetrated by the eligible 

veteran against the Family Caregiver 

and when VA determines unmitigated 

personal safety issues exist for the 

Family Caregiver due to DV or IPV by 

the eligible veteran against the Family 

Caregiver), VA proposes to add new 

paragraphs (b)(1)(iii)(A) and (B) to 

address the continuation of benefits for 

discharges pursuant to proposed 

paragraph (b)(1)(i). VA would move the 

current language from § 71.45(b)(1)(iii) 

into a new proposed paragraph 

(b)(1)(iii)(A), which would state that 

except as provided in paragraph 

(b)(1)(iii)(B) of § 71.45, caregiver 

benefits will continue for three months 

after the date of discharge. This 

proposed text would be consistent with 

the current extension of benefits in 

paragraph (b)(1)(iii) for current 

discharges made pursuant to current 

§ 71.45(b)(1)(i)(A) and (B). However, VA 

would replace ‘‘90 days’’ with ‘‘three 

months’’ to align with VA’s process for 

calculating and paying monthly stipend 

payments. VA’s rationale for this change 

is explained in more detail above. 

Because proposed paragraph 

(b)(1)(iii)(B) would address continuation 

of benefits for discharges only under 

proposed paragraph (b)(1)(i)(C), as 

discussed below, the language in 

proposed paragraph (b)(1)(iii)(A) would 

apply to discharges pursuant to new 

proposed § 71.45(b)(1)(i)(D) (that is, 

discharges based on VA determining 

that unmitigated personal safety issues 

exist for the Family Caregiver due to DV 

or IPV by the eligible veteran against the 

Family Caregiver). Accordingly, Family 

Caregivers discharged pursuant to 

proposed paragraph (b)(1)(i)(D) would 

receive three months of caregiver 

benefits after the date of discharge, as 

set forth in new proposed paragraph 

(b)(1)(iii)(A). VA proposes to provide 

caregiver benefits for three months after 

the date of discharge on the basis of 

proposed § 71.45(b)(1)(i)(D) to align 

with the three months of continued 

benefits that VA would provide to 

Family Caregivers who request 

discharge due to DV or IPV pursuant to 

proposed § 71.45(b)(1)(i)(C) (so long as 

other requirements are met), as 

discussed below. This approach would 

ensure Family Caregivers are eligible for 

the same period of continued benefits 

when discharge is due to DV or IPV, 

regardless of whether VA initiates the 

discharge pursuant to proposed 

§ 71.45(b)(1)(i)(D) or it is requested by 

the Family Caregiver under proposed 

§ 71.45(b)(1)(i)(C). 

VA recognizes that the monthly 

stipend payment is a benefit Primary 

Family Caregivers may rely upon. 

However, VA does not want the 

monthly stipend payment to serve as an 

incentive to remain in an unsafe 

caregiving relationship. Like the 90-day 

extension of benefits under current 

§ 71.45(b)(3)(iii)(B), a three-month 

extension of benefits after discharge 

under proposed § 71.45(b)(1)(i)(D) may 

help to mitigate concerns a Family 

Caregiver may have about the loss of the 

monthly stipend payment and health 

care benefits. See 85 FR 13401 (March 

6, 2020). VA believes that three months 

is an appropriate period of time to 

transition out of receiving PCAFC 

benefits in the case of discharge 

pursuant to proposed § 71.45(b)(1)(i)(D). 

Additionally, access to PCAFC benefits, 

such as counseling services, may be 

especially useful to support the Family 

Caregiver during the three-month period 

following discharge on the basis of 

proposed § 71.45(b)(1)(i)(D). 

Proposed paragraph (b)(1)(iii)(B) 

would address continuation of benefits 

for discharges under proposed 

paragraph (b)(1)(i)(C) (that is, when the 

Family Caregiver requests discharge due 

to DV or IPV perpetrated by the eligible 

veteran against the Family Caregiver). 

Consistent with current 

§ 71.45(b)(3)(iii), under proposed 

paragraph (b)(1)(iii)(B), in the case of 

discharge based on new proposed 

paragraph (b)(1)(i)(C), caregiver benefits 


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would continue for one month after the 

date of discharge unless one of the 

criteria in proposed paragraph 

(b)(1)(iii)(B)(1) through (3) is 

established, in which case caregiver 

benefits would continue for three 

months after the date of discharge. VA 

proposes to move to proposed paragraph 

(b)(1)(iii)(B) the language regarding 

continuation of benefits in instances 

when the Family Caregiver requests 

discharge due to DV or IPV that is 

included in current paragraph 

(b)(3)(iii)(B)(1) through (3), which 

describes the requirements for the 

provision of 90 days of continued 

benefits when the discharge is due to 

DV or IPV. This language would be 

added to proposed paragraphs 

(b)(1)(iii)(B)(1) through (3) with minor 

modifications. Current paragraphs 

(b)(3)(iii)(A) and (B) refer to the 

extended benefit time periods as ‘‘30 

days’’ and ‘‘90 days’’, respectively. 

However, consistent with VA’s previous 

explanation, VA proposes to use ‘‘one 

month’’ and ‘‘three months’’ to describe 

the time periods for the continued 

caregiver benefits in new proposed 

paragraph (b)(1)(iii)(B). 

Thus, proposed paragraph 

(b)(1)(iii)(B) would state that in the case 

of discharge based on paragraph 

(b)(1)(i)(C) of § 71.45, caregiver benefits 

will continue for one month after the 

date of discharge. Proposed paragraph 

(b)(1)(iii)(B) would further state that 

notwithstanding the previous sentence, 

caregiver benefits will continue for three 

months after the date of discharge when 

any of the following can be established: 

(1) the issuance of a protective order, to 

include interim, temporary and/or final 

protective orders, to protect the Family 

Caregiver from DV or IPV perpetrated by 

the eligible veteran, (2) a police report 

indicating DV or IPV perpetrated by the 

eligible veteran against the Family 

Caregiver or a record of an arrest related 

to DV or IPV perpetrated by the eligible 

veteran against the Family Caregiver, or 

(3) documentation of disclosure of DV 

or IPV perpetrated by the eligible 

veteran against the Family Caregiver to 

a treating provider (e.g., physician, 

dentist, psychologist, rehabilitation 

therapist) of the eligible veteran or 

Family Caregiver, Intimate Partner 

Violence Assistance Program (IPVAP) 

Coordinator, therapist, or counselor. 

c. Proposed Additional Basis for 

Discharge of a Family Caregiver Due to 

the Family Caregiver 

Current paragraph § 71.45(b)(2) 

describes conditions for discharge of the 

Family Caregiver due to the Family 

Caregiver. Current paragraph (b)(2)(i) 

addresses the only basis for such 

discharge now—death or 

institutionalization of the Family 

Caregiver. VA proposes to revise 

paragraph (b)(2)(i) to add an additional 

basis for discharge due to the Family 

Caregiver being unable to provide 

personal care services, among other 

things, and to reorganize the bases for 

discharge into separate new paragraphs 

(A) and (B) of § 71.45(b)(2)(i). 

This new proposed basis for discharge 

due to the Family Caregiver would 

account for instances in which VA 

determines the Family Caregiver is not 

able to carry out specific personal care 

services, core competencies, or 

additional care requirements. To be 

approved and designated as a Family 

Caregiver, the individual must 

demonstrate the ability to carry out the 

specific personal care services, core 

competencies, and additional care 

requirements required by the eligible 

veteran under § 71.25(c)(2), so VA 

proposes to use the same language in 

describing this new basis for discharge 

in proposed § 71.45(b)(2)(i)(B). To 

clarify, a situation that would qualify for 

this new proposed discharge basis, in 

which a Family Caregiver is unable to 

carry out the enumerated actions, is 

intended to be different than a situation 

in which a Family Caregiver is 

unwilling to do so. A Family Caregiver 

who is unwilling to provide personal 

care services required by the eligible 

veteran would be subject to revocation 

pursuant to § 71.45(a)(1)(i)(D) 

(authorizing revocation for cause when 

VA determines that the Family 

Caregiver is unwilling to provide 

personal care services to the eligible 

veteran). 

Additionally, VA does not presume a 

Family Caregiver’s inability to carry out 

the specific personal care services, core 

competencies, or additional care 

requirements needed by the eligible 

veteran is a matter of noncompliance 

under § 71.45(a)(1)(ii)(E). VA considers 

noncompliance to be the direct result of 

a deliberate action or inaction on the 

part of the eligible veteran or Family 

Caregiver. See 85 FR 13395 (March 6, 

2020). Such inability may not be 

deliberate on the part of the Family 

Caregiver as such Family Caregiver may 

be unable to carry out the specific 

personal care services, core 

competencies, or additional care 

requirements despite making significant 

effort to do so. In these circumstances, 

for the reasons described below, VA 

believes a distinct basis for discharge is 

appropriate and should apply. 

This new proposed basis for discharge 

would not add new criteria or make 

changes to how criteria are currently 

evaluated during reassessments. This 

proposed change, if made final and 

effective, would allow VA to provide 

Family Caregivers with a period of 

advanced notice and a three-month 

period of extended benefits when the 

specific eligibility criteria are 

determined not to be met. Without this 

new basis, there is no standard period 

of extended benefits. As VA explained 

above, the term ‘‘discharge’’ is 

commonly used in health care settings 

to describe what happens when a 

patient no longer meets criteria for the 

level of care being provided. See 85 FR 

13394 (March 6, 2020). Discharge may 

be appropriate when there is a change 

in circumstances, such as when VA 

identifies that the Family Caregiver is 

unable to carry out personal care 

services needed by the eligible veteran, 

which may be due to a decline in their 

abilities or a change in the eligible 

veteran’s needs. In each of these cases, 

the basis for the Family Caregiver not 

being able to carry out specific personal 

care services, core competencies or 

additional care requirements is due to 

changes in condition (of the eligible 

veteran or Family Caregiver). For 

example, a Family Caregiver may find 

themselves not able to adequately 

perform hands-on assistance with one or 

more ADL due to the increased amount 

of strength required as the eligible 

veteran’s conditions progress. In such 

instance, VA believes discharge under 

proposed § 71.45(b)(2)(i)(B) would be 

appropriate. 

Because VA proposes to add this new 

basis for discharge due to the Family 

Caregiver in a new § 71.45(b)(2)(i)(B) 

and to include the basis for discharge 

based on death or institutionalization 

under a new § 71.45(b)(2)(i)(A), VA 

proposes to revise the introductory text 

in paragraph (b)(2)(i) to provide a 

general overview of discharge due to the 

Family Caregiver. Accordingly, as 

proposed, § 71.45(b)(2)(i) would state 

that except as provided in paragraph (f) 

of § 71.45, the Family Caregiver will be 

discharged from the Program of 

Comprehensive Assistance for Family 

Caregivers based on any of the bases for 

discharge due to the Family Caregiver 

which VA would list in proposed new 

paragraphs (A) and (B). 

Except as explained below, VA 

proposes to add the remaining text in 

current § 71.45(b)(2)(i) in new paragraph 

(b)(2)(i)(A), which would explain that 

one basis for discharge under paragraph 

(b)(2)(i) is death or institutionalization 

of the Family Caregiver. VA would also 

include in proposed paragraph 

(b)(2)(i)(A) the note from current 

paragraph (b)(2)(i), which explains that 

VA must receive notification of death or 

institutionalization of the Family 


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Caregiver as soon as possible but not 

later than 30 days from the date of death 

or institutionalization. However, VA 

proposes to remove the last sentence of 

current paragraph (b)(2)(i), which states 

that notification of institutionalization 

must indicate whether the Family 

Caregiver is expected to be 

institutionalized for 90 or more days 

from the onset of institutionalization. 

Consistent with VA’s rationale for 

removing this requirement in proposed 

revisions to § 71.45(b)(1)(i)(B), which 

addresses institutionalization of an 

eligible veteran, VA has found that this 

information is not necessary for such 

notice to indicate whether the 

individual is expected to be 

institutionalized for 90 days or more 

from the onset of institutionalization of 

a Family Caregiver. What is most critical 

is that VA receives notification of such 

institutionalization. Once VA has been 

notified, it can work with the eligible 

veteran and/or Family Caregiver to 

obtain additional information that may 

be necessary for purposes of 

determining whether discharge should 

be initiated and also facilitate other 

appropriate actions, such as referrals for 

additional support, as applicable. Thus, 

VA would remove the requirement for a 

notification of institutionalization to 

indicate whether the Family Caregiver is 

expected to be institutionalized for 90 or 

more days as it would be unnecessary. 

Also, while VA is proposing to remove 

the last sentence of current 

§ 71.45(b)(2)(i), VA’s regulations (at 

proposed § 71.45(b)(2)(i)(A)) would still 

include the requirement that VA must 

receive notification of death or 

institutionalization of the Family 

Caregiver as soon as possible but not 

later than 30 days from the date of death 

or institutionalization. Failure to 

provide timely notification of death or 

institutionalization of a Family 

Caregiver, as set forth in current 

§ 71.45(b)(2)(i) and proposed 

§ 71.45(b)(2)(i)(A), or an eligible veteran, 

as set forth in § 71.45(b)(1)(i)(B), could 

result in overpayments of benefits to the 

Family Caregiver, which are subject to 

recoupment pursuant to § 71.47. 

Proposed new paragraph 

§ 71.45(b)(2)(i)(B) would then explain 

the new additional basis for discharge. 

Proposed paragraph (B) would explain 

that a Family Caregiver would be 

discharged from PCAFC when VA 

determines the Family Caregiver is not 

able to carry out specific personal care 

services, core competencies, or 

additional care requirements. Current 

§ 71.45(b)(2)(ii) provides the date of 

discharge in cases of discharge based on 

death or institutionalization of the 

Family Caregiver. As explained below, 

VA proposes to reorganize and revise 

the language in current § 71.45(b)(2)(ii) 

and to include in this paragraph VA’s 

proposed discharge date that would 

apply to the additional basis for 

discharge in proposed 

§ 71.45(b)(2)(i)(B). 

First, VA proposes to keep the title of 

current paragraph (b)(2)(ii) (that is, 

‘‘Discharge date’’), but move the 

introductory sentence in current 

paragraph (b)(2)(ii) to a new paragraph 

(A) and clarify that it applies to 

discharges based on proposed paragraph 

(b)(2)(i)(A) (that is, discharges due to the 

death or institutionalization of the 

Family Caregiver). Thus, proposed 

(b)(2)(ii)(A) would state that in the case 

of discharge based on paragraph 

(b)(2)(i)(A) of § 71.45, the date of 

discharge will be the earliest of the 

following dates, as applicable. In 

proposed paragraphs (b)(2)(ii)(A)(1) 

through (3), VA would add the existing 

discharge date provisions in the case of 

death or institutionalization of the 

Family Caregiver found in current 

paragraphs (b)(2)(ii)(A) through (C). VA 

proposes to maintain that language, but 

make one change, as explained below. 

Current § 71.45(b)(2)(ii)(B) states that 

the date of discharge may be the date 

that the institutionalization begins, if it 

is determined that the Family Caregiver 

is expected to be institutionalized for a 

period of 90 days or more. As explained 

above, VA proposes to move this 

language to proposed paragraph 

(b)(2)(ii)(A)(2). Consistent with, and for 

the same reasons provided in VA’s 

discussion above regarding the 

proposed changes to similar language in 

§ 71.45(b)(1)(ii)(B)(2), VA proposes to 

revise this language in its new 

paragraph (proposed paragraph 

(b)(2)(ii)(A)(2)) to replace ‘‘if it is 

determined’’ with ‘‘if it is known on 

such date’’. 

Second, because VA is proposing to 

move language in current paragraph 

(b)(2)(ii)(B) to paragraph (b)(2)(ii)(A)(2), 

VA would add new proposed paragraph 

(b)(2)(ii)(B) to refer to the discharge date 

applicable to the additional proposed 

discharge basis in proposed paragraph 

(b)(2)(i)(B) (that is, discharge based on a 

VA determination that the Family 

Caregiver is not able to carry out 

specific personal care services, core 

competencies, or additional care 

requirements). Proposed new paragraph 

(b)(2)(ii)(B) would state that in the case 

of discharge based on proposed 

paragraph (b)(2)(i)(B), the date of 

discharge would be provided in VA’s 

final notice of such discharge to the 

eligible veteran and Family Caregiver, 

and that such date would be no earlier 

than 60 days after VA provides 

advanced notice of its findings to the 

eligible veteran and Family Caregiver 

that the Family Caregiver is not able to 

carry out specific personal care services, 

core competencies, or additional care 

requirements. If discharged under the 

proposed new basis in 

§ 71.45(b)(2)(i)(B), Family Caregivers 

would have three months of continued 

benefits after the date of discharge, as 

explained below. 

The proposed 60-day advanced notice 

period would allow a period of time 

between the date VA provides notice of 

its findings that the Family Caregiver is 

not able to carry out specific personal 

care services, core competencies, or 

additional care requirements, and the 

date of discharge. Such time may allow 

for further training or evaluation of the 

Family Caregiver’s abilities, as 

applicable. If the Family Caregiver is 

able to demonstrate the ability to carry 

out specific personal care services, core 

competencies, or additional care 

requirements prior to VA issuing final 

notice of discharge, this would obviate 

VA’s issuance of a final notice. A 60-day 

advanced notice period would also be 

consistent with advanced notice periods 

provided in cases of revocation for 

noncompliance under § 71.45(a)(2)(iii) 

and discharge under § 71.45(b)(1)(ii)(A). 

Because VA is proposing to move 

language in current paragraph 

(b)(2)(ii)(C) to proposed paragraph 

(b)(2)(ii)(A)(3), VA would remove 

paragraph (C) from § 71.45(b)(2)(ii). 

Current § 71.45(b)(2)(iii) addresses 

continuation of benefits for Family 

Caregivers who are discharged pursuant 

to paragraph (b)(2) based on 

institutionalization of the Family 

Caregiver. In such cases, benefits 

continue for 90 days after the date of 

discharge. VA proposes to revise ‘‘90 

days’’ to ‘‘three months’’ in this 

paragraph consistent with VA’s 

previous explanation about this change. 

VA would further revise this paragraph 

to address continuation of benefits with 

respect to the new basis for discharge in 

proposed § 71.45(b)(2)(i)(B) (that is, if 

VA determines the Family Caregiver is 

not able to carry out specific personal 

care services, core competencies, or 

additional care requirements), so that 

those discharged on such basis would 

also have three months of continued 

benefits. 

Providing three months of continued 

benefits after the date of discharge 

would be consistent with VA’s current 

and proposed regulations regarding 

continuation of benefits when VA 

initiates discharges. For example, this is 

consistent with the continued benefits 

for those discharged under current 


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paragraph (b)(2)(i) and proposed 

§ 71.45(b)(2)(i)(A) based on 

institutionalization of the Family 

Caregiver. This would also be consistent 

with current § 71.45(b)(1)(iii) and 

proposed § 71.45(b)(1)(iii)(A) based on 

improvements in an eligible veteran’s 

condition, among other reasons under 

§ 71.45(b)(1)(i)(A). VA believes there are 

parallels between a Family Caregiver’s 

discharge when there is a change in the 

eligible veteran’s functioning under 

paragraph (b)(1)(i)(A) (for example, due 

to improvement in the eligible veteran’s 

condition) and this new proposed 

discharge basis due to changes in the 

Family Caregiver’s ability to carry out 

specific personal care services, core 

competencies, or additional care 

requirements needed by the eligible 

veteran. In both cases, the discharge of 

the Family Caregiver is not and would 

not be due to any intentional or willful 

action but rather a change in an 

individual’s functioning. This change 

may be due to a change in an eligible 

veteran’s care needs, a change in the 

abilities of the Family Caregiver, or 

both. VA therefore proposes to apply the 

same three-month period of continued 

benefits for both bases. Thus, in 

§ 71.45(b)(2)(iii), VA proposes to replace 

‘‘paragraph (b)(2)(ii)(B) or (C)’’ with 

‘‘paragraphs (b)(2)(ii)(A)(2) or (3) or 

(b)(2)(ii)(B)’’ to refer to discharge based 

on institutionalization of the Family 

Caregiver and VA’s new proposed basis 

of discharge based on a VA 

determination that the Family Caregiver 

is not able to carry out specific personal 

care services, core competencies, or 

additional care requirements. 

d. Conforming Revisions to § 71.45(b)(3) 

and Proposed Opportunity for Family 

Caregiver To Request Rescission 

Current § 71.45(b)(3) describes 

conditions for discharge of the Family 

Caregiver by request of the Family 

Caregiver, and current paragraph (i) 

addresses requests for discharge by the 

Family Caregiver. As VA proposes to 

address requests of the Family Caregiver 

for discharge due to DV or IPV in 

proposed paragraphs (b)(1)(i)(C), 

(b)(1)(ii)(C), and (b)(1)(iii)(B), instead of 

paragraph (b)(3), VA would add a note 

to paragraph (b)(3)(i) to explain that 

requests of the Family Caregiver for 

discharge due to DV or IPV perpetrated 

by the eligible veteran against the 

Family Caregiver will be considered 

under paragraph (b)(1) of § 71.45. This 

would make clear to the public that, if 

changes to the regulations are adopted 

as proposed, such requests would be 

considered under paragraph (b)(1) and 

not paragraph (b)(3). 

Current § 71.45(b)(3)(iii) sets forth 

requirements for the continuation of 

caregiver benefits for discharges under 

paragraph (b)(3). More specifically, 

current § 71.45(b)(3)(iii)(A) explains that 

except as provided in current paragraph 

(b)(3)(iii)(B) of § 71.45, caregiver 

benefits will continue for 30 days after 

the date of discharge, while current 

paragraph (b)(3)(iii)(B) addresses the 

continuation of caregiver benefits in 

instances of a Family Caregiver’s request 

for discharge due to DV or IPV when 

certain documentation is established. As 

discussed above, VA is proposing to 

move the language in current 

§ 71.45(b)(3)(iii)(B)(1) through (3) to 

proposed paragraphs (b)(1)(iii)(B)(1) 

through (3). Therefore, VA proposes to 

remove paragraphs (A) and (B) of 

§ 71.45(b)(3)(iii) and revise paragraph 

(b)(3)(iii) to state that if the Family 

Caregiver requests discharge under this 

paragraph, caregiver benefits would 

continue for one month after the date of 

discharge. This would not be expected 

to be a substantive change because 

Family Caregivers discharged pursuant 

to § 71.45(b)(3) would continue to 

receive the same period of continued 

benefits—whether under proposed 

paragraph (b)(3)(iii) or proposed 

paragraphs (b)(1)(iii)(B). In addition, VA 

proposes to change ‘‘30 days’’ to ‘‘one 

month’’ consistent with VA’s other 

proposed changes discussed above. 

VA proposes to add new paragraph 

(iv) to paragraph (b)(3) entitled, 

‘‘Recission’’, to explain that VA will 

allow the Family Caregiver to rescind 

their request for discharge and be 

reinstated if the rescission is made 

within 30 days of the date of discharge. 

Proposed paragraph (b)(3)(iv) would 

further state that if the Family Caregiver 

expresses a desire to be reinstated more 

than 30 days from the date of discharge, 

a new joint application would be 

required, and that this ability to rescind 

requests for discharge would not apply 

to requests for discharge under 

paragraph (b)(1)(i)(C) of § 71.45. If 

adopted as proposed, this provision 

would be consistent with how VA 

handles and allows rescission of 

discharge requests from eligible veterans 

or their surrogates pursuant to current 

§ 71.45(b)(4)(iii). 

VA has found that it is not uncommon 

for an eligible veteran to request 

discharge of their Family Caregiver as a 

result of a disagreement or argument. 

Additionally, it is not uncommon for 

the eligible veteran to rescind such 

request a few days later. See 85 FR 

13402 (March 6, 2020). The same 

situation could also result when the 

Family Caregiver requests discharge and 

then rescinds the request. VA proposes 

to provide the same 30-day period that 

is given to eligible veterans to Family 

Caregivers to allow for rescission of 

such a request. 

However, VA would also include 

language in proposed § 71.45(b)(3)(iv) to 

state that this paragraph would not 

apply to requests for discharge under 

proposed paragraph (b)(1)(i)(C). As 

explained above, proposed paragraph 

(b)(1)(i)(C) would address Family 

Caregiver requests for discharge due to 

DV or IPV perpetrated by the eligible 

veteran against the Family Caregiver. 

VA would not allow rescission of such 

requests under proposed paragraph 

(b)(3)(iv). This is because a request for 

discharge by the Family Caregiver due 

to DV or IPV would be considered an 

acknowledgement by the Family 

Caregiver that a safety concern exists, 

and such safety concern could impact 

the Family Caregiver’s ability and/or 

willingness to provide the required 

personal care services to the eligible 

veteran, as well as the eligible veteran’s 

willingness to receive personal care 

services from the Family Caregiver. 

Allowing the recission of such request 

could perpetuate a situation where 

either or both the eligible veteran and 

Family Caregiver is at risk of harm. 

Additionally, in some cases when DV or 

IPV is known to exist, recission of such 

request could be due to coercion or 

other forms of control of the Family 

Caregiver by the eligible veteran. 

Although proposed § 71.45(b)(3)(iv) 

would not allow a Family Caregiver to 

rescind a discharge request made under 

proposed paragraph (b)(1)(i)(C), the 

eligible veteran and Family Caregiver 

could re-apply for PCAFC by submitting 

a new joint application, at which point 

VA would consider their eligibility for 

PCAFC. 

e. Proposed Revisions to Discharge of 

the Family Caregiver by Request of the 

Eligible Veteran or Eligible Veteran’s 

Surrogate 

Current § 71.45(b)(4) addresses 

discharge of the Family Caregiver if an 

eligible veteran or their surrogate 

requests discharge of the Family 

Caregiver. Current § 71.45(b)(4)(iv) 

explains that caregiver benefits will 

continue for 30 days after the date of 

discharge, which is the present or future 

date of discharge provided by the 

eligible veteran or eligible veteran’s 

surrogate according to § 71.45(b)(4)(ii). 

VA proposes to replace the reference 

to ‘‘30 days’’ with ‘‘one month’’ in 

§ 71.45(b)(4)(iv) consistent with other 

proposed changes in § 71.45. VA’s 

rationale for this change is explained in 

more detail above. VA also proposes to 

add language to § 71.45(b)(4)(iv) to 


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allow for three months of continued 

benefits when DV or IPV perpetrated by 

the eligible veteran against the Family 

Caregiver can be established based on 

the requirements in proposed paragraph 

(b)(1)(iii)(B)(1) through (3). 

In the instance that DV or IPV is being 

perpetrated against the Family Caregiver 

by the eligible veteran and either one 

requests discharge, VA believes the 

same period of continued caregiver 

benefits should apply—regardless of 

whether the discharge is requested by 

the Family Caregiver under proposed 

paragraph (b)(1)(i)(C) or by the eligible 

veteran under paragraph (b)(4). If any of 

the requirements in proposed paragraph 

(b)(1)(iii)(B)(1) through (3) can be 

established, VA believes there should be 

a three-month period of extended 

benefits for the Family Caregiver after 

the date of discharge when the eligible 

veteran requests the discharge. VA 

believes this change would provide 

consistency across discharge bases. 

To maintain consistency with 

proposed § 71.45(b)(1)(iii)(B), VA 

proposes to require the same 

information as is required under such 

proposed paragraph to establish that DV 

or IPV has occurred, when determining 

whether three months of continued 

caregiver benefits after the date of 

discharge should be provided to the 

Family Caregiver pursuant to proposed 

§ 71.45(b)(4)(iv) when the eligible 

veteran or their surrogate requests 

discharge of the Family Caregiver. Thus, 

this would include by reference, (1) the 

issuance of a protective order, to 

include interim, temporary and/or final 

protective orders, to protect the Family 

Caregiver from DV or IPV perpetrated by 

the eligible veteran; (2) a police report 

indicating DV or IPV perpetrated by the 

eligible veteran against the Family 

Caregiver or a record of an arrest related 

to DV or IPV perpetrated by the eligible 

veteran against the Family Caregiver; or 

(3) documentation of disclosure of DV 

or IPV perpetrated by the eligible 

veteran against the Family Caregiver to 

a treating provider (e.g., physician, 

dentist, psychologist, rehabilitation 

therapist) of the eligible veteran or 

Family Caregiver, Intimate Partner 

Violence Assistance Program (IPVAP) 

Coordinator, therapist, or counselor. 

This proposed change to reference the 

requirements in proposed 

§ 71.45(b)(1)(iii)(B)(1) through (3) under 

proposed § 71.45(b)(4)(iv) would ensure 

that a Family Caregiver that is 

discharged due to DV or IPV perpetrated 

by an eligible veteran against the Family 

Caregiver is given the same access to 

continued benefits when necessary 

documentation/requirements are met 

whether it is the Family Caregiver or the 

eligible veteran (or their surrogate) that 

requests discharge from PCAFC. 

Thus, as proposed, § 71.45(b)(4)(iv) 

would state that caregiver benefits will 

continue for one month after the date of 

discharge. It would also state that 

notwithstanding the previous sentence, 

caregiver benefits will continue for three 

months after the date of discharge when 

any of the requirements in paragraph 

(b)(1)(iii)(B)(1) through (3) can be 

established. 

3. Multiple Bases for Revocation or 

Discharge 

Paragraph (f) of § 71.45 describes how 

VA addresses instances in which there 

are multiple bases for revocation or 

discharge. Current § 71.45(f) states that 

in the instance that a Family Caregiver 

may be both discharged pursuant to any 

of the criteria in paragraph (b) of § 71.45 

and have his or her designation revoked 

pursuant to any of the criteria in 

paragraph (a) of § 71.45, the Family 

Caregiver’s designation will be revoked 

pursuant to paragraph (a). Further, it 

states that in the instance that the 

designation of a Family Caregiver may 

be revoked under paragraph (a)(1)(i) and 

paragraph (a)(1)(ii) or (iii) of § 71.45, the 

designation of the Family Caregiver will 

be revoked pursuant to paragraph 

(a)(1)(i), and that in the instance that the 

designation of a Family Caregiver may 

be revoked under paragraphs (a)(1)(ii) 

and (iii) of § 71.45, the designation of 

the Family Caregiver will be revoked 

pursuant to paragraph (a)(1)(iii). Finally, 

paragraph (f) states that in the instance 

that a Family Caregiver may be 

discharged under paragraph (b)(1), (2), 

(3), or (4) of § 71.45, the Family 

Caregiver will be discharged pursuant to 

the paragraph most favorable to the 

Family Caregiver. 

VA proposes to revise § 71.45(f) to 

require that in instances where multiple 

bases exist, VA would apply the basis of 

revocation or discharge with the earliest 

effective date. VA would no longer 

necessarily effectuate a revocation over 

a discharge and would always apply the 

basis with the earliest effective date, 

whether the basis falls under discharge 

or revocation. As proposed, § 71.45(f) 

would state that in the instance a 

Family Caregiver may have their 

designation revoked or be discharged 

pursuant to one or more of the criteria 

in paragraphs (a) or (b) of § 71.45, 

respectively, the Family Caregiver’s 

designation will be revoked or the 

Family Caregiver will be discharged, as 

applicable, pursuant to the basis that 

would result in the earliest date of 

revocation or discharge. 

VA proposes this change for several 

reasons. First, once a basis for discharge 

or revocation exists, VA does not 

believe it is practical or appropriate to 

delay the discharge or revocation of a 

Family Caregiver’s designation simply 

because an additional basis exists. For 

example, in the event a Family 

Caregiver submits a request for 

discharge on July 1 that is to take effect 

July 21, and the eligible veteran dies on 

July 15, under proposed § 71.45(f), the 

date of discharge would be July 15. VA 

does not believe it would be reasonable 

to maintain the Family Caregiver’s 

designation after the death of the 

eligible veteran. Second, it would 

simplify the existing language in 

§ 71.45(f) as it relates to revocation and 

discharge by creating a consistent rule 

that applies to all situations where 

multiple bases exist thereby accounting 

for existing and newly proposed bases 

for revocation and discharge, including 

those proposed in this rulemaking. 

Finally, VA’s proposal would remove 

the standard of ‘‘most favorable to the 

Family Caregiver’’, which could be 

subjective and difficult to apply, and 

would replace it with a more 

straightforward rule that requires VA to 

apply the ‘‘basis that would result in the 

earliest date of revocation or discharge’’, 

leaving less discretion to VA. 

VA acknowledges that its proposed 

changes to paragraph (f) would change 

VA’s current practice as it relates to 

discharges. The last sentence of current 

paragraph (f) states that in the instance 

that a Family Caregiver may be 

discharged under paragraph (b)(1), (2), 

(3), or (4) of this section, the Family 

Caregiver will be discharged pursuant to 

the paragraph most favorable to the 

Family Caregiver. In proposing this 

language, VA explained that it would 

address the infrequent instances where 

multiple requests for discharge are 

received by VA, and one basis is more 

favorable to the Family Caregiver. 85 FR 

13404 (March 6, 2020). VA proposes to 

modify this provision and to no longer 

apply this rule because there are limited 

instances in which multiple discharge 

bases exist. When these instances have 

occurred, they have generally involved 

a discharge that is requested due to DV 

or IPV. To address these specific 

scenarios, VA has proposed changes to 

§ 71.45(b)(4)(iv) and (b)(1)(iii)(B), as 

discussed above, to allow Family 

Caregivers to receive three months of 

continued benefits if DV or IPV is 

established (and the applicable 

requirements are met) regardless of 

whether discharge is requested by the 

eligible veteran or their surrogate under 

§ 71.45(b)(4)(i) or by the Family 

Caregiver under proposed 

§ 71.45(b)(1)(i)(C). With these 

amendments, if the eligible veteran and 


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23See, for example, Executive Order 2023–01 

(COVID–19 Executive Order No. 116), State of 

Illinois (Jan. 6, 2023), available at https://

www.illinois.gov/government/executive-orders/

executive-order.executive-order-number01.2023.html (last visited Feb. 8, 2024) and Orange 

County, Florida Emergency Executive Order No. 

2021–36 Regarding COVID–19, Orange County, 

Florida (Oct. 20, 2021), available at https://

www.orangecountyfl.net/portals/0/library/ 

Emergency-Safety/docs/coronavirus/2021- 

36%20EEO-CMcert.pdf (last visited Feb. 8, 2024). 

Family Caregiver both submit requests 

to VA for the Family Caregiver to be 

discharged on July 7, the same period of 

continued benefits would apply on the 

basis of either discharge request, such 

that VA would no longer be faced with 

determining which discharge basis is 

‘‘most favorable to the Family 

Caregiver’’ and thereby limiting the 

impact of removing this subjective 

standard, if proposed changes to 

§ 71.45(f) are adopted in a final rule. VA 

expects the proposed revisions to 

§ 71.45(f) would provide clarity about 

which basis for revocation or discharge 

applies when weighing multiple bases. 

VA solicits comments from the public 

on all aspects of this proposed rule. In 

particular, VA asks the following 

question on specific aspects of this 

proposal. 

1. Among other changes to § 71.45, 

VA has proposed adding as a new basis 

for discharge, a VA determination that 

unmitigated personal safety issues exist 

for the Family Caregiver due to DV or 

IPV by the eligible veteran against the 

Family Caregiver. What models or 

standards could VA use to determine 

whether discharge from PCAFC may be 

appropriate due to DV or IPV? 

I. 38 CFR 71.55 Home Visits and 

Emergency Declarations 

Through an IFR published in the FR 

on June 5, 2020, VA added a new rule 

under § 71.60 to provide flexibility in 

the modality by which VA conducted 

PCAFC home visits for the duration of 

the National Emergency related to 

Coronavirus Disease-2019 (COVID–19) 

declared by the President on March 13, 

2020 (COVID–19 National Emergency). 

85 FR 34522 (June 5, 2020). Section 

71.60 states that notwithstanding the 

requirements in part 71, for the duration 

of the National Emergency related to 

COVID–19 declared by the President on 

March 13, 2020, VA may complete visits 

to the eligible veteran’s home under part 

71 through videoconference or other 

available telehealth modalities. This 

change was intended to help reduce the 

risk of exposure to and transmission of 

COVID–19 to individuals involved in 

PCAFC, as well as members of their 

households and others with whom they 

came into contact. 85 FR 34523 (June 5, 

2020). This was especially important 

given the vulnerable population of 

veterans served by PCAFC. Id. As the 

COVID–19 National Emergency has 

come to an end, § 71.60 is no longer 

operable. 

The COVID–19 National Emergency 

demonstrated the importance of 

mitigating and reducing vulnerabilities 

for those applying for or participating in 

PCAFC as well as VA staff in the event 

of future emergencies. In the case of inperson home visits, the need for these 

alternative measures is not limited to 

emergencies involving public health 

risks, like the COVID–19 National 

Emergency. Natural disasters and other 

weather-related emergencies can also 

have a direct impact on VA’s ability to 

safely conduct in-home visits. When 

emergency conditions are such that 

travel and/or entry into a person’s home 

would expose individuals to avoidable 

safety or public health risks, having 

alternative options to complete a home 

visit is vital. 

VA therefore proposes to provide 

flexibility for VA to complete home 

visits under part 71 through telehealth 

in cases where a Federal, State, or local 

authority has declared an emergency 

involving certain safety or public health 

risks. In these situations, VA would 

utilize this flexibility to complete home 

visits required under part 71 when 

needed to help protect the health and 

safety of VA staff and individuals 

applying for or participating in a 

program under part 71. This would 

include home visits required under 

§§ 71.25(e), 71.30, and 71.40(b)(2). 

VA proposes to add § 71.55 to part 71 

with the heading, ‘‘Home visits and 

emergency declarations.’’ Proposed 

§ 71.55 would state that 

notwithstanding the requirements in 

part 71, for the duration of and in the 

locations covered by an emergency 

declaration, VA may complete home 

visits under part 71 through telehealth 

as defined in 38 CFR 17.417(a)(4). It 

would also state that for purposes of this 

new proposed section, emergency 

declaration would refer to any 

emergency, declared by a Federal, State, 

or local authority, involving a safety or 

public health risk that impacts inperson interaction between VA staff and 

individuals applying for or participating 

in a program under part 71, including 

but not limited to: (a) natural disasters 

and weather-related emergencies when 

travel to, from, or within, or time spent 

in the affected area would pose a safety 

risk; and (b) emergencies related to 

influenza, coronavirus, respiratory 

illness, or other contagions that pose a 

public health risk. 

As proposed, § 71.55 would align 

with the text in § 71.60 with some 

changes and additions. First, § 71.60 

refers to ‘‘videoconference or other 

available telehealth modalities.’’ 

However, in proposed § 71.55 VA would 

refer to telehealth as that term is defined 

in 38 CFR 17.417(a)(4). Per 

§ 17.417(a)(4), the term telehealth means 

‘‘the use of electronic information or 

telecommunications technologies to 

support clinical health care, patient and 

professional health-related education, 

public health, and health 

administration.’’ The phrase ‘‘telehealth 

modalities’’, as used in § 71.60, could be 

interpreted as applying only to 

traditional telehealth modalities, such 

as video, store-and-forward, and remote 

patient monitoring. So as not to suggest 

that § 71.55 would authorize use of only 

those specific modalities, proposed 

§ 71.55 would not use that term and 

would instead reference the broader 

definition of telehealth as it is defined 

in § 17.417(a)(4). Although proposed 

§ 71.55 would not specifically reference 

‘‘videoconference’’ as § 71.60 does, VA 

believes that through policy, it could 

establish an expectation that 

videoconference be the primary mode of 

telehealth used for completing home 

visits if this proposal is adopted in a 

final rule. However, in cases where 

videoconference is not possible, 

proposed § 71.55 would provide VA 

with flexibility to use other means of 

telehealth, such as telephone, to 

complete home visits under this section. 

Under proposed § 71.55, VA would 

also define the term emergency 

declaration for purposes of this section. 

As proposed, emergency declaration 

would refer, in part, to any emergency 

declared by a Federal, State, or local 

authority. This differs from § 71.60 

which only applied to the COVID–19 

National Emergency even though State 

and local authorities also issued 

emergency declarations related to 

COVID–19.23 When VA published the 

IFR that established § 71.60, the COVID– 

19 National Emergency was applicable 

nationwide, such that there was no need 

to reference other emergency 

declarations and orders related to 

COVID–19. However, as VA seeks to 

provide flexibility in the case of 

emergency declarations that may be 

more limited in scope than at a national 

level, VA believes it is prudent for 

proposed § 71.55 to encompass any 

Federal, State, or local emergency 

declaration, so long as it involves a 

safety or public health risk as described 

in this proposal. VA also includes the 

phrase ‘‘in the locations covered by an 

emergency declaration’’ in the first 

sentence of proposed § 71.55 to account 

for emergencies with localized impacts 


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24Compare, for example, State of Florida, Office 

of the Governor, Executive Order No. 23–171, 

Emergency Management—Invest 93L (Aug. 26, 

2023), available at https://www.flgov.com/wpcontent/uploads/2023/08/EO-23-171-1.pdf (last 

visited Feb. 8, 2024) (in which a ‘‘state of 

emergency’’ was ‘‘declared’’) with The State of 

Georgia, Executive Order 06.22.21.01 (June 22, 

2021), available at https://gov.georgia.gov/ 

document/2021-executive-order/06222101/ 

download (last visited Feb. 8, 2024) (listing various 

matters as ‘‘ordered’’ and referring to a ‘‘Public 

Health State of Emergency’’). 

25Compare, for example, State of Maine, 

Proclamation to Renew the State of Civil Emergency 

(June 11, 2021), available at https://www.maine.gov/ 

governor/mills/sites/maine.gov.governor.mills/files/ 

inline-files/Proclamation

%20to%20Renew%20the%20State%20of

%20Civil%20Emergency%20-%20

June%2011%202021.pdf (last visited Feb. 8, 2024) 

(declaring a ‘‘state of civil emergency’’); with 

Government of the District of Columbia, Mayor’s 

Order No. 2022–043 (Mar. 17, 2022), available at 

https://coronavirus.dc.gov/sites/default/files/dc/ 

sites/coronavirus/page_content/attachments/

2022043-Extension-of-Public-Emergency-forCOVID19.pdf (last visited Feb. 8, 2024) (extending 

a ‘‘public emergency’’). 

(for instance, State-wide, or in one or 

two counties) as well as those on a 

larger scale (for example, nationwide). 

This language would make clear that the 

flexibility under proposed § 71.55 

would apply only to those locations 

covered by the emergency declaration. 

Additionally, proposed § 71.55 would 

state that the flexibility would be 

authorized ‘‘for the duration of’’ the 

emergency declaration, phrasing which 

in § 71.60 describes the extent of the 

flexibility authorized. 

Although proposed § 71.55 uses the 

term emergency declaration, the 

terminology used within emergency 

declarations may vary. For example, 

Locality A may ‘‘promulgate’’ or 

‘‘declare’’ a state of emergency while 

Locality B may ‘‘order’’ actions in 

response to an emergency.24

Additionally, Locality C may use the 

phrase ‘‘state of emergency’’ while 

Locality D may use ‘‘public 

emergency’’.25 To be inclusive of the 

various terms used in emergency 

declarations of Federal, State, and local 

authorities involving specified safety or 

public health risks, if proposed § 71.55 

were adopted in a final rule, VA would 

expect to interpret and apply the term 

emergency declaration to encompass 

terms such as public health emergency, 

health emergency, and disaster 

emergency, and VA would expect to 

interpret and apply the term declared to 

encompass terms such as orders, 

announcements, proclamations, and 

pronouncements. 

If adopted, VA intends to leverage the 

flexibilities proposed in § 71.55 

specifically during emergencies 

involving a safety or public health risk 

that impacts in-person interaction 

between VA staff and individuals 

participating in a program under part 

71. In proposed paragraphs (a) and (b) 

of § 71.55, VA would provide examples 

of emergencies that involve the types of 

safety and public health risks that may 

warrant use of the flexibility afforded by 

proposed § 71.55, such as natural 

disasters and weather-related 

emergencies, and emergencies related to 

contagions such as the coronavirus or 

other respiratory illness. However, 

under proposed § 71.55, the safety or 

public health risk must also impact inperson interaction between VA staff and 

individuals applying for or participating 

in a program under part 71. In this 

regard, an emergency declaration by the 

Federal government related to a national 

supply chain shortage for baby food, for 

example, would not alone authorize VA 

to complete part 71 home visits through 

telehealth under proposed § 71.55, as 

the risks associated with such an 

emergency would not impact in-person 

interaction between VA staff and 

individuals applying for or participating 

in a program under part 71 who 

participate in in-person home visits. On 

the contrary, an emergency declaration 

issued by a State or locality because of 

a hurricane that impacts roadways and 

the ability to travel safely could involve 

a safety or public health risk that 

impacts in-person interaction between 

VA staff and individuals applying for or 

participating in a program under part 71 

who engage in in-person home visits. 

For the duration of and in the locations 

covered by such an emergency 

declaration, proposed § 71.55 would 

allow VA to complete home visits 

through telehealth. 

J. Other Technical Edits 

VA proposes to make several 

technical edits to remove and replace 

gender specific language throughout 

part 71 with gender-neutral language. 

These proposed revisions have no 

substantive impact as they are 

grammatical and technical corrections 

that would conform to VA’s goal to 

ensure its regulations are gender neutral 

in alignment with Executive Order 

13988 of January 20, 2021, Preventing 

and Combating Discrimination on the 

Basis of Gender Identity or Sexual 

Orientation. See 86 FR 7023 (January 25, 

2021). 

In § 71.15 VA proposes to revise the 

definition of personal care services to 

replace the language ‘‘his or her’’ with 

the word ‘‘their’’. In § 71.20 

introductory text, and paragraphs (a), 

(b), and (c), VA proposes to remove the 

language ‘‘he or she’’ and add in its 

place, the language ‘‘the veteran or 

servicemember’’. In § 71.45(b)(3)(i), VA 

proposes to remove the language ‘‘his or 

her’’ and add, in its place, the word 

‘‘their’’. 

Other technical edits include a 

proposed amendment to § 71.20(a)(2), to 

add the word ‘‘space’’ to the list of the 

branches of the U.S. Armed Forces to 

account for inclusion of the Space Force 

and proposed amendment to § 71.25 to 

add the associated information 

collection control number to the end of 

the section. The Office of Management 

and Budget (OMB) previously approved 

the information collection associated 

with § 71.25 under control number 

2900–0768 (Program of Comprehensive 

Assistance for Family Caregivers 

(PCAFC), VA Form 10–10CG). 

III. Executive Orders 12866, 13563 and 

14094 

Executive Order 12866 (Regulatory 

Planning and Review) directs agencies 

to assess the costs and benefits of 

available regulatory alternatives and, 

when regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, and other advantages; 

distributive impacts; and equity). 

Executive Order 13563 (Improving 

Regulation and Regulatory Review) 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. Executive Order 

14094 (Executive Order on Modernizing 

Regulatory Review) supplements and 

reaffirms the principles, structures, and 

definitions governing contemporary 

regulatory review established in 

Executive Order 12866 of September 30, 

1993 (Regulatory Planning and Review), 

and Executive Order 13563 of January 

18, 2011 (Improving Regulation and 

Regulatory Review). The Office of 

Information and Regulatory Affairs has 

determined that this rule is a significant 

regulatory action under Executive Order 

12866, Section 3(f)(1), as amended by 

Executive Order 14094. The Regulatory 

Impact Analysis associated with this 

rulemaking can be found as a 

supporting document at 

www.regulations.gov. 

IV. Regulatory Flexibility Act 

The Secretary hereby certifies that 

this proposed rule would not have a 

significant economic impact on a 

substantial number of small entities as 

they are defined in the Regulatory 

Flexibility Act (5 U.S.C. 601–612). The 

factual basis for this certification is 

because this rule proposes changes to 

eligibility requirements in and other 

updates to 38 CFR part 71, under which 

VA provides assistance and support 


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services through PCAFC and PGCSS for 

certain caregivers of eligible veterans 

and covered veterans. The beneficiaries 

of PCAFC and PGCSS are not small 

entities, and small entities would not be 

impacted by this proposed rule. 

Therefore, pursuant to 5 U.S.C. 605(b), 

the initial and final regulatory flexibility 

analysis requirements of 5 U.S.C. 603 

and 604 do not apply. 

V. Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

one year. This proposed rule would 

have no such effect on State, local, and 

tribal governments, or on the private 

sector. 

VI. Paperwork Reduction Act 

This proposed rule includes 

provisions constituting a revision to a 

current/valid collection of information 

under the Paperwork Reduction Act 

(PRA) of 1995 (44 U.S.C. 3501–3521) 

that requires approval by OMB. 

Accordingly, under 44 U.S.C. 3507(d), 

VA has submitted a copy of this 

rulemaking action to OMB for review 

and approval. 

OMB assigns control numbers to 

collections of information it approves. 

VA may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. If OMB does not approve the 

collection of information as requested, 

VA will immediately remove the 

provisions containing the collection of 

information or take such other action as 

is directed by OMB. 

Comments on the revised collection of 

information contained in this 

rulemaking should be submitted 

through www.regulations.gov. 

Comments should be sent within 60 

days of publication of this rulemaking. 

The collection of information associated 

with this rulemaking can be viewed at: 

www.reginfo.gov/public/do/PRAMain. 

OMB is required to make a decision 

concerning the collection of information 

contained in this rulemaking between 

30 and 60 days after publication of this 

rulemaking in the Federal Register. 

Therefore, a comment to OMB is best 

assured of having its full effect if OMB 

receives it within 30 days of 

publication. This does not affect the 

deadline for the public to comment on 

the provisions of this rulemaking. 

The Department considers comments 

by the public on a new collection of 

information in— 

• Evaluating whether the revised 

collection of information is necessary 

for the proper performance of the 

functions of VA, including whether the 

information will have practical utility; 

• Evaluating the accuracy of VA’s 

estimate of the burden of the revised 

collection of information, including the 

validity of the methodology and 

assumptions used; 

• Enhancing the quality, usefulness, 

and clarity of the information to be 

collected; and 

• Minimizing the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology 

(for example, permitting electronic 

submission of responses). 

The collections of information 

associated with this rulemaking 

contained in 38 CFR 71.25(a), 71.30(c), 

and 71.45 are described immediately 

following this paragraph, under their 

respective titles. This revised 

information collection has a current 

PRA clearance under OMB control 

number 2900–0768. 

Title: Program of Comprehensive 

Assistance for Family Caregivers 

(PCAFC) (VA Form 10–10CG). 

OMB Control No: 2900–0768. 

CFR Provision: 38 CFR 71.25(a). 

• Summary of collection of 

information: The revised collection of 

information in proposed 38 CFR 

71.25(a) would require veterans, 

servicemembers and caregivers to 

submit a new joint application to 

participate in PCAFC and receive 

benefits. VA is proposing changes to 

PCAFC eligibility requirements. These 

changes are expected to result in an 

influx of new applications in the initial 

year of implementation, including from 

applicants who have previously applied 

and been denied. The number of 

applications submitted to VA is 

expected to fall back to more typical 

numbers after the initial influx. 

• Description of need for information 

and proposed use of information: VA 

will use the information collected to 

conduct an assessment of program 

eligibility for applicants. 

• Description of likely respondents: 

Veterans, servicemembers, and 

caregivers. 

• Estimated number of respondents: 

140,671 annually. 

• Estimated frequency of responses: 

Once per year. 

• Estimated average burden per 

response: 15 minutes. 

• Estimated total annual reporting 

and recordkeeping burden: 35,168 

hours. 

Title: Program of Comprehensive 

Assistance for Family Caregivers 

(PCAFC) (Requests for Reassessment). 

OMB Control No: 2900–0768. 

CFR Provision: 38 CFR 71.30(c). 

• Summary of collection of 

information: The revised collection of 

information in proposed 38 CFR 

71.30(c) would set forth a process for 

eligible veterans and Primary Family 

Caregivers to request reassessment for 

continued eligibility. 

• Description of need for information 

and proposed use of information: VA 

will use the information collected to 

initiate a reassessment under 38 CFR 

71.30 on behalf of the requester. While 

a written request is not required, if a 

written request is received, such written 

request may support an earlier effective 

date for any increased benefits for 

which the Family Caregiver may be 

eligible based on the reassessment. 

• Description of likely respondents: 

Veterans, servicemembers, and 

caregivers. 

• Estimated number of respondents: 

2,800 annually. 

• Estimated frequency of responses: 

Once per year. 

• Estimated average burden per 

response: 3 minutes. 

• Estimated total annual reporting 

and recordkeeping burden: 140 hours. 

Title: Program of Comprehensive 

Assistance for Family Caregivers 

(PCAFC) (Requests for Discharge). 

OMB Control No: 2900–0768. 

CFR Provision: 38 CFR 71.45. 

• Summary of collection of 

information: The revised collection of 

information in proposed 38 CFR 71.45 

requires veterans, servicemembers and 

caregivers to submit requests for 

discharge verbally or in writing to 

PCAFC. If such request for discharge is 

due to cases of DV or IPV by the eligible 

veteran against the Family Caregiver, 

the provision of a protective order, 

police report, or documentation by a 

treating provider of disclosure of DV or 

IPV may be provided to support the 

provision of extended benefits to the 

Family Caregiver upon the discharge. 

• Description of need for information 

and proposed use of information: VA 

will use the information collected to 

determine the date of discharge for a 

caregiver. 

• Description of likely respondents: 

Veterans, servicemembers, and 

caregivers. 

• Estimated number of respondents: 

1,710 annually. 


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• Estimated frequency of responses: 

Once per year. 

• Estimated average burden per 

response: 5 minutes. 

• Estimated total annual reporting 

and recordkeeping burden: 143 hours. 

Total Estimated cost to respondents 

per year: VA estimates the total annual 

cost to respondents to be $1,115,997.48 

(35,451 burden hours × $31.48 per 

hour). 

*To estimate the total information 

collection burden cost, VA used the 

May 2023 Bureau of Labor Statistics 

(BLS) mean hourly wage code—‘‘00– 

0000 All Occupations,’’ available at 

https://www.bls.gov/oes/2023/may/oes_

nat.htm. 

The time estimate for the Federal 

Government to process VA Form 10– 

10CG is 15 minutes. The time estimate 

for the Federal Government to process 

requests for reassessment is 3 minutes 

and requests for discharge is 5 minutes. 

This equates to a time estimate of 35,451 

hours. The annual cost to the Federal 

Government is estimated at 

$1,769,004.90 (35,451 hours × $49.90 

per hour, based on the Atlanta 2024 

hourly rate table for a grade 12, step 5 

employee). 

The annual total cost to the public 

and the government is expected to be 

$2,885,002.38. 

List of Subjects in 38 CFR Part 71 

Administrative practice and 

procedure, Claims, Health care, Health 

facilities, Health professions, Mental 

health programs, Public assistance 

programs, Travel and transportation 

expenses, Veterans. 

Signing Authority 

Denis McDonough, Secretary of 

Veterans Affairs, signed and approved 

this document on November 15, 2024, 

and authorized the undersigned to sign 

and submit the document to the Office 

of the Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. 

Consuela Benjamin, 

Regulation Development Coordinator Office 

of Regulation Policy & Management, Office 

of General Counsel Department of Veterans 

Affairs. 

For the reasons stated in the 

preamble, the Department of Veterans 

Affairs proposes to amend 38 CFR part 

71 as set forth below: 

PART 71—CAREGIVERS BENEFITS 

AND CERTAIN MEDICAL BENEFITS 

OFFERED TO FAMILY MEMBERS OF 

VETERANS 

■ 1. The authority citation for part 71 

continues to read as follows: 

Authority: 38 U.S.C. 501, 1720G, unless 

otherwise noted. 

* * * * * 

§ 71.10 [Amended] 

■ 2. In § 71.10, amend paragraph (b) by 

removing the language ‘‘as that term is 

defined in 38 U.S.C. 101(20)’’. 

■ 3. Amend § 71.15 by: 

■ a. Adding definitions for ‘‘Activity of 

daily living or activities of daily living 

(ADL)’’, ‘‘State’’, and ‘‘Typically 

requires’’ in alphabetical order. 

■ b. Removing the definitions of 

‘‘Inability to perform an activity of daily 

living (ADL)’’, ‘‘Need for supervision, 

protection, or instruction’’, and ‘‘Unable 

to self-sustain in the community’’. 

■ c. Revising the definitions of 

‘‘Institutionalization’’, ‘‘Joint 

application’’, ‘‘Legacy applicant’’, 

‘‘Legacy participant’’, and ‘‘Serious 

injury’’. 

■ d. In the definition of ‘‘Personal care 

services’’, removing the language ‘‘his or 

her’’ and adding, in its place, the 

language ‘‘their’’. 

The revisions and additions read as 

follows: 

§ 71.15 Definitions. 

Activity of daily living or activities of 

daily living (ADL) means any of the 

following functions or tasks for self-care 

usually performed in the normal course 

of a day: 

(1) Dressing or undressing; 

(2) Bathing; 

(3) Grooming; 

(4) Adjusting any special prosthetic or 

orthopedic appliance (this does not 

include the adjustment of appliances 

that nondisabled persons would be 

unable to adjust without aid, such as 

supports, belts, lacing at the back, etc.); 

(5) Toileting or attending to toileting; 

(6) Eating; or 

(7) Mobility. 

* * * * * 

Institutionalization means being 

institutionalized in a setting outside the 

home residence to include a hospital, 

rehabilitation facility, jail, prison, 

medical foster home, nursing home, or 

other similar setting as determined by 

VA. 

* * * * * 

Joint application means an 

application for the Program of 

Comprehensive Assistance for Family 

Caregivers in such form and manner as 

the Secretary of Veterans Affairs 

considers appropriate. 

Legacy applicant means a veteran or 

servicemember who submits a joint 

application for the Program of 

Comprehensive Assistance for Family 

Caregivers that is received by VA before 

October 1, 2020 and for whom a Family 

Caregiver(s) is approved and designated 

on or after October 1, 2020 so long as 

the Primary Family Caregiver approved 

and designated for the veteran or 

servicemember on or after October 1, 

2020 pursuant to such joint application 

(as applicable) continues to be approved 

and designated as such. If a new joint 

application is received by VA on or after 

October 1, 2020 that results in approval 

and designation of the same or a new 

Primary Family Caregiver, the veteran or 

servicemember would no longer be 

considered a legacy applicant. Effective 

[18 months after EFFECTIVE DATE OF 

FINAL RULE], the veteran or 

servicemember is no longer considered 

a legacy applicant. 

Legacy participant means an eligible 

veteran whose Family Caregiver(s) was 

approved and designated by VA under 

this part as of the day before October 1, 

2020 so long as the Primary Family 

Caregiver approved and designated for 

the eligible veteran as of the day before 

October 1, 2020 (as applicable) 

continues to be approved and 

designated as such. If a new joint 

application is received by VA on or after 

October 1, 2020 that results in approval 

and designation of the same or a new 

Primary Family Caregiver, the veteran or 

servicemember would no longer be 

considered a legacy participant. 

Effective [18 months after EFFECTIVE 

DATE OF FINAL RULE], the veteran or 

servicemember is no longer considered 

a legacy participant. 

* * * * * 

Serious injury means any of the 

following as assigned by VA: 

(1) A service-connected disability 

rated at 70 percent or more; 

(2) Any service-connected disabilities 

that result in a combined rating of 70 

percent or more; or 

(3) Any service-connected disability 

or disabilities that result in a total 

disability rating for compensation based 

on individual unemployability. 

State has the meaning given that term 

in 38 U.S.C. 101(20). 

Typically requires means a clinical 

determination which refers to that 

which is generally necessary. 

* * * * * 

■ 4. Amend § 71.20 by: 

■ a. In the introductory text and 

paragraph (a) introductory text, 

removing the language ‘‘he or she’’ and 

in its place, adding the language ‘‘the 

veteran or servicemember’’. 

■ b. In paragraph (a)(2), removing the 

language ‘‘or air’’ and in its place, 

adding the language ‘‘air, or space’’. 

■ c. Revising paragraphs (a)(3)(i) and 

(ii), (a)(7), (b), and (c). 

■ d. Adding new paragraph (a)(3)(iii). 


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The revisions and additions read as 

follows: 

§ 71.20 Eligible veterans and 

servicemembers. 

(a) * * * 

(3) * * * 

(i) The individual typically requires 

hands-on assistance to complete one or 

more ADL; 

(ii) The individual has a frequent 

need for supervision or protection based 

on symptoms or residuals of 

neurological or other impairment or 

injury; or 

(iii) The individual typically requires 

regular or extensive instruction or 

supervision to complete one or more 

ADL. 

* * * * * 

(7) The individual receives ongoing 

care from a primary care team or will do 

so within 120 days of the date VA 

designates a Family Caregiver. If the 

individual is unable to receive such care 

due, at least in part, to an event or 

action within VA’s control, VA may 

extend this 120-day period. 

(b) Beginning on October 1, 2020 

through [18 months after EFFECTIVE 

DATE OF FINAL RULE], a veteran or 

servicemember is eligible for a Primary 

Family Caregiver or Secondary Family 

Caregiver under this part if the veteran 

or servicemember is a legacy 

participant. 

(c) Beginning on October 1, 2020 

through [18 months after EFFECTIVE 

DATE OF FINAL RULE], a veteran or 

servicemember is eligible for a Primary 

Family Caregiver or Secondary Family 

Caregiver under this part if the veteran 

or servicemember is a legacy applicant. 

* * * * * 

■ 5. Amend § 71.25 by: 

■ a. Revising the section heading. 

■ b. Adding the words ‘‘Family 

Caregivers’’ after the word ‘‘Primary’’ in 

the first sentence of paragraph (a)(1). 

■ c. Removing the last sentence of 

paragraph (a)(1). 

■ d. Adding paragraphs (a)(1)(i) and (ii). 

■ e. Revising paragraph (a)(2)(i). 

■ f. Revising the last sentence of 

paragraph (a)(2)(ii). 

■ g. Revising paragraphs (a)(3)(i) and 

(ii). 

■ h. Revising paragraph (b) introductory 

text. 

■ i. Revising paragraph (b)(2)(ii). 

■ j. Adding the information collection 

control number to the end of the 

section. 

The revisions and additions read as 

follows: 

§ 71.25 Approval and designation of 

Primary Family Caregivers and Secondary 

Family Caregivers. 

(a) * * * 

(1) * * * 

(i) Individuals interested in serving as 

Family Caregivers must be identified as 

such on the joint application, and no 

more than three individuals may serve 

as Family Caregivers at one time for an 

eligible veteran, with no more than one 

serving as the Primary Family Caregiver 

and no more than two serving as 

Secondary Family Caregivers. 

(ii) A currently approved Secondary 

Family Caregiver for the eligible veteran 

may apply for designation as the 

Primary Family Caregiver by submitting 

a new joint application along with the 

eligible veteran. 

(2) * * * 

(i) Upon receiving such application, 

except as provided in paragraphs 

(a)(2)(i)(A) and (B) of this section, VA 

(in collaboration with the primary care 

team to the maximum extent 

practicable) will perform the 

evaluations required to determine the 

eligibility of the applicants under this 

part, and if eligible, determine the 

applicable monthly stipend payment 

under § 71.40(c)(4). 

(A) VA will not evaluate a veteran’s 

or servicemember’s eligibility under 

§ 71.20 as part of the application process 

when: 

(1) A joint application is received to 

designate a Secondary Family Caregiver 

for an eligible veteran who already has 

a designated Primary Family Caregiver; 

or 

(2) A joint application is received that 

seeks to change the designation of a 

current Secondary Family Caregiver for 

an eligible veteran to designation as the 

Primary Family Caregiver for that same 

eligible veteran so long as the eligible 

veteran has been determined to meet the 

eligibility criteria under § 71.20(a) or 

§ 71.20(a) (2021) (which may have 

applied the statutory criteria in 38 

U.S.C. 1720G(a)(2)(C)(ii) and (iii) in 

place of the criterion in § 71.20(a)(3)(ii)). 

(B) Upon receipt of a joint application 

that seeks to designate a current 

Secondary Family Caregiver as the 

Primary Family Caregiver for the same 

eligible veteran, VA will determine 

which evaluations under this section are 

necessary to assess the individual’s 

eligibility as the Primary Family 

Caregiver. 

(ii) * * * VA may extend the 90-day 

period based on VA’s inability to 

complete the eligibility evaluations, 

provide necessary education and 

training, or conduct the initial homecare assessment, when such inability is, 

at least in part, due to VA’s action. 

(3) * * * 

(i) A joint application under this part 

is evaluated in accordance with the 

statutes and regulations in effect on the 

date VA receives such joint application. 

(ii) Notwithstanding paragraph 

(a)(3)(i) of this section, in rendering a 

determination under this part, based on 

the regulations that were in effect from 

October 1, 2020 through [EFFECTIVE 

DATE OF FINAL RULE]: 

(A) The definition of ‘‘joint 

application’’ in § 71.15 that became 

effective [EFFECTIVE DATE OF FINAL 

RULE] applies. 

(B) The definition of ‘‘need for 

supervision, protection, or instruction’’ 

in § 71.15 does not apply. In its place, 

the following criteria apply: 

(1) A need for supervision or 

protection based on symptoms or 

residuals of neurological or other 

impairment or injury; or 

(2) A need for regular or extensive 

instruction or supervision without 

which the ability of the veteran to 

function in daily life would be seriously 

impaired. 

(b) Eligibility to serve as Primary 

Family Caregiver or Secondary Family 

Caregiver. In order to serve as a Primary 

Family Caregiver or Secondary Family 

Caregiver, the applicant must meet all of 

the following requirements: 

* * * * * 

(2) * * * 

(ii) Someone who lives with the 

eligible veteran full-time or will do so 

within 120 days of the date VA 

designates the individual as a Family 

Caregiver. 

* * * * * 

(The Office of Management and 

Budget has approved the information 

collection requirement in this section 

under control number 2900–0768) 

■ 6. Amend § 71.30 by: 

■ a. Revising paragraphs (a), (b), and (c). 

■ b. Adding a heading to paragraph (d). 

■ c. Revising paragraph (e). 

The revisions and additions read as 

follows: 

§ 71.30 Reassessment of Eligible Veterans 

and Family Caregivers. 

(a) General. The eligible veteran and 

each Family Caregiver will be 

reassessed by VA (in collaboration with 

the primary care team to the maximum 

extent practicable) to determine their 

continued eligibility for participation in 

PCAFC under this part. Reassessments 

will include consideration of the 

monthly stipend payment under 

§ 71.40(c)(4)(i)(A), if applicable. 

Reassessments may include a visit to the 

eligible veteran’s home. 

(b) Frequency of reassessment. Except 

as provided in paragraph (c) of this 

section, VA will reassess an eligible 

veteran’s continued eligibility under 

§ 71.20(a)(3) not more frequently than 


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every two years unless such a 

reassessment is necessary for VA to 

evaluate the Family Caregiver’s ability 

to carry out specific personal care 

services, core competencies, or 

additional care requirements. 

(c) Requests for reassessment. 

Reassessments may occur when an 

eligible veteran or a Primary Family 

Caregiver of an eligible veteran submits 

to VA a written request indicating that 

a reassessment is requested, and such 

request contains the signature of the 

eligible veteran or the Primary Family 

Caregiver. 

(d) Required participation. * * * 

(e) Legacy reassessments. For 

purposes of this paragraph, a legacy 

reassessment is a reassessment of an 

eligible veteran who meets the 

requirements of § 71.20(b) or (c) (i.e., is 

a legacy participant or a legacy 

applicant) that is conducted to 

determine whether such individual 

meets the requirements of § 71.20(a) for 

purposes of continued eligibility. 

Legacy reassessments are conducted in 

accordance with the requirements 

outlined in paragraph (a) of this section. 

(1) If the eligible veteran meets the 

requirements of § 71.20(b) or (c) (i.e., is 

a legacy participant or a legacy 

applicant), VA will conduct a legacy 

reassessment for the eligible veteran and 

each Family Caregiver within the time 

period beginning on October 1, 2020 

and ending on [18 months after 

EFFECTIVE DATE OF FINAL RULE]. 

Notwithstanding the previous sentence, 

a legacy reassessment will not be 

completed if at some point before such 

reassessment is completed the eligible 

veteran no longer meets the 

requirements of § 71.20(b) or (c). 

(2) If the eligible veteran meets the 

requirements of § 71.20(a), the legacy 

reassessment will include consideration 

of the monthly stipend payment under 

§ 71.40(c)(4)(i)(A) and whether the 

Primary Family Caregiver is eligible for 

a one-time retroactive stipend payment 

pursuant to § 71.40(c)(4)(iii). 

■ 7. Amend § 71.40 by: 

■ a. Adding a heading to paragraph 

(c)(4)(i)(A)(1). 

■ b. Revising paragraph (c)(4)(i)(A)(2). 

■ c. Revising the first sentence of 

paragraphs (c)(4)(i)(B) introductory text, 

(c)(4)(i)(C), and (c)(4)(i)(D). 

■ d. Revising paragraph (c)(4)(ii)(A). 

■ e. Adding headings to paragraphs 

(c)(4)(ii)(B) and (C) introductory text. 

■ f. Revising paragraphs (c)(4)(ii)(C)(1) 

and (2), and the note to paragraph 

(c)(4)(ii)(C)(2). 

■ g. Adding a heading to paragraph 

(c)(4)(ii)(D). 

■ h. Redesignating paragraphs (c)(4)(iii) 

and (iv) as paragraphs (c)(4)(iv) and (v). 

■ i. Adding new paragraph (c)(4)(iii). 

The revisions and additions read as 

follows: 

§ 71.40 Caregiver benefits. 

* * * * * 

(c) * * * 

(4) * * * 

(i) * * * 

(A) * * * 

(1) Level 1 Stipend. * * * 

(2) Level 2 Stipend. Notwithstanding 

paragraph (c)(4)(i)(A)(1) of this section, 

the Primary Family Caregiver’s monthly 

stipend is calculated by multiplying the 

monthly stipend rate by 1.00 if VA 

determines that: 

(i) The eligible veteran typically 

requires personal care services to 

complete three or more distinct ADL, 

and for each distinct ADL, the eligible 

veteran either is substantially 

dependent on the Primary Family 

Caregiver for hands-on assistance or 

requires extensive instruction or 

supervision from the Primary Family 

Caregiver; or 

(ii) The eligible veteran has a frequent 

need for supervision or protection on a 

continuous basis from the Primary 

Family Caregiver based on the eligible 

veteran’s symptoms or residuals of 

neurological or other impairment or 

injury. 

(B) Except as provided in paragraph 

(c)(4)(i)(C) of this section, for the time 

period beginning on October 1, 2020 

and ending on [18 months after 

EFFECTIVE DATE OF FINAL RULE], if 

the eligible veteran meets the 

requirements of § 71.20(b) or (c), (i.e., is 

a legacy participant or a legacy 

applicant), the Primary Family 

Caregiver’s monthly stipend is 

calculated based on the clinical rating in 

38 CFR 71.40(c)(4)(i) through (iii) (2019) 

and the definitions applicable to such 

paragraphs under 38 CFR 71.15 (2019). 

* * * 

* * * * * 

(C) For the time period beginning on 

October 1, 2020 and ending on [18 

months after EFFECTIVE DATE OF 

FINAL RULE], if the eligible veteran 

meets the requirements of § 71.20(a) and 

(b) or (c), the Primary Family Caregiver’s 

monthly stipend is the amount the 

Primary Family Caregiver is eligible to 

receive under paragraph (c)(4)(i)(A) or 

(B) of this section, whichever is higher. 

* * * 

(D) Notwithstanding paragraphs 

(c)(4)(i)(A) through (C) of this section, 

for the time period beginning on 

October 1, 2020 and ending on [18 

months after EFFECTIVE DATE OF 

FINAL RULE], if the eligible veteran 

meets the requirements of § 71.20(b), the 

Primary Family Caregiver’s monthly 

stipend is not less than the amount the 

Primary Family Caregiver was eligible to 

receive as of the day before October 1, 

2020 (based on the eligible veteran’s 

address on record with the Program of 

Comprehensive Assistance for Family 

Caregivers on such date) so long as the 

eligible veteran resides at the same 

address on record with the Program of 

Comprehensive Assistance for Family 

Caregivers as of the day before October 

1, 2020. * * * 

(ii) * * * 

(A) OPM updates. VA will adjust 

monthly stipend payments based on 

changes to the General Schedule (GS) 

Annual Rate for grade 4, step 1 for the 

locality pay area in which the eligible 

veteran resides. Such adjustments will 

take effect on the first of the month in 

which changes to the GS Annual Rate 

are effective. Notwithstanding the 

previous sentence, adjustments under 

this paragraph will take effect on the 

first of the month following the month 

OPM publishes changes to the GS 

Annual Rate if such changes have a 

retroactive effective date. 

(B) Relocation. * * * 

(C) Reassessments. * * * 

(1) Increases. In the case of a 

reassessment that results in an increase 

in the monthly stipend payment based 

on paragraph (c)(4)(i)(A) of this section, 

the effective date of the increase is the 

earlier of the following dates: 

(i) The date VA issues notice of the 

decision. 

(ii) In the case of a written request for 

reassessment pursuant to § 71.30(c) that 

is received by VA on or after 

[EFFECTIVE DATE OF FINAL RULE], 

the date VA received such request from 

the eligible veteran or the Primary 

Family Caregiver of the eligible veteran. 

(2) Decreases—(i) General. Except as 

provided in paragraph (c)(4)(ii)(C)(2)(ii) 

of this section, in the case of a 

reassessment that results in a decrease 

in the monthly stipend payment, the 

decrease takes effect as of the effective 

date provided in VA’s final notice of 

such decrease to the eligible veteran and 

Primary Family Caregiver. The effective 

date of the decrease will be no earlier 

than 60 days after VA provides 

advanced notice of its findings to the 

eligible veteran and Primary Family 

Caregiver. 

(ii) Resulting from a legacy 

reassessment. With respect to an eligible 

veteran who meets the requirements of 

§ 71.20(a) and (b) or (c), in the case of 

a reassessment that results in a decrease 

in the Primary Family Caregiver’s 

monthly stipend payment, the new 

stipend amount under paragraph 

(c)(4)(i)(A) of this section takes effect as 

of the effective date provided in VA’s 


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final notice of such decrease to the 

eligible veteran and Primary Family 

Caregiver. The effective date of the 

decrease will be no earlier than 60 days 

after [18 months after EFFECTIVE DATE 

OF FINAL RULE]. On [18 months after 

EFFECTIVE DATE OF FINAL RULE], 

VA will provide advanced notice of its 

findings to the eligible veteran and 

Primary Family Caregiver. 

Note 1 to paragraph (c)(4)(ii)(C)(2): If an 

eligible veteran who meets the requirements 

of § 71.20(b) or (c) is determined, pursuant to 

a reassessment conducted by VA under 

§ 71.30, to not meet the requirements of 

§ 71.20(a), the monthly stipend payment will 

not be adjusted under paragraph (c)(4)(ii)(C) 

of this section. Unless the Family Caregiver 

is revoked or discharged under § 71.45 before 

the date that is 60 days after [18 months after 

EFFECTIVE DATE OF FINAL RULE], the 

effective date for discharge of the Family 

Caregiver of a legacy participant or legacy 

applicant under § 71.45(b)(1)(ii) will be no 

earlier than 60 days after [18 months after 

EFFECTIVE DATE OF FINAL RULE]. On [18 

months after EFFECTIVE DATE OF FINAL 

RULE], VA will provide advanced notice of 

its findings to the eligible veteran and Family 

Caregiver. 

(D) Effective dates. * * * 

(iii) Legacy retroactive monthly 

stipend payment. VA will consider 

eligibility for a one-time legacy 

retroactive monthly stipend payment in 

accordance with this paragraph as part 

of the legacy reassessment conducted 

under § 71.30(e) of this part. 

(A) Subject to paragraph (c)(4)(iii)(B) 

of this section, in the case of a 

reassessment that results in an increase 

in the Primary Family Caregiver’s 

monthly stipend payment pursuant to 

paragraph (c)(4)(ii)(C)(1) of this section, 

the Primary Family Caregiver may be 

eligible for a retroactive payment 

amount described in paragraph 

(c)(4)(iii)(C) of this section if the eligible 

veteran is a legacy participant or legacy 

applicant and is in need of personal care 

services for a minimum of six 

continuous months based on any one of 

the following: 

(1) An inability to perform an activity 

of daily living as such term is defined 

in 38 CFR 71.15 (2021). 

(2) A need for supervision or 

protection based on symptoms or 

residuals of neurological or other 

impairment or injury. 

(3) A need for regular or extensive 

instruction or supervision without 

which the ability of the veteran to 

function in daily life would be seriously 

impaired. 

(B) If there is more than one 

reassessment for an eligible veteran 

during period beginning on October 1, 

2020 and ending on [18 months after 

EFFECTIVE DATE OF FINAL RULE], 

the retroactive payment described in 

paragraph (c)(4)(iii)(A) applies only if 

the first reassessment during the 

aforementioned period results in an 

increase in the monthly stipend 

payment, and only as the result of the 

first reassessment during said period. 

Notwithstanding the previous sentence, 

if the first reassessment during the 

period beginning on October 1, 2020 

and ending on [18 months after 

EFFECTIVE DATE OF FINAL RULE] did 

not result in an increase in the monthly 

stipend payment, the retroactive 

payment described in paragraph 

(c)(4)(iii)(A) of this section applies to 

the first reassessment initiated by VA on 

or after March 25, 2022 that applies the 

criteria in paragraph (c)(4)(iii)(A) of this 

section, if such reassessment results in 

an increase in the monthly stipend 

payment, and only as a result of such 

reassessment. 

(C) The retroactive payment amount 

described in paragraph (c)(4)(iii)(A) of 

this section is any difference between 

the amounts in paragraphs (1) and (2) of 

this paragraph (c)(4)(iii)(C) of this 

section for the time period beginning on 

October 1, 2020 up to the effective date 

of the increase under paragraph 

(c)(4)(ii)(C)(1) of this section, based on 

the eligible veteran’s address on record 

with the Program of Comprehensive 

Assistance for Family Caregivers on the 

effective date of the increase under 

paragraph (c)(4)(ii)(C)(1) of this section 

and the monthly stipend rate on such 

date. 

(1) The amount the Primary Family 

Caregiver was eligible to receive under 

paragraph (c)(4)(i)(B) or (D) of this 

section, whichever the Primary Family 

Caregiver received; and 

(2) The monthly stipend rate 

multiplied by 0.625. Notwithstanding 

the previous sentence, if the eligible 

veteran meets at least one of the 

following criteria, the monthly stipend 

rate is multiplied by 1.00: 

(i) The eligible veteran requires 

personal care services each time they 

complete three or more of the seven 

activities of daily living (ADL) listed in 

the definition of an ‘‘inability to perform 

an activity of daily living’’ as such term 

is defined in 38 CFR 71.15 (2021), and 

is fully dependent on a caregiver to 

complete such ADLs. 

(ii) The eligible veteran has a need for 

supervision or protection based on 

symptoms or residuals of neurological 

or other impairment or injury on a 

continuous basis. 

(iii) The eligible veteran has a need for 

regular or extensive instruction or 

supervision without which the ability of 

the veteran to function in daily life 

would be seriously impaired on a 

continuous basis. 

* * * * * 

■ 8. Amend § 71.45 by: 

■ a. Adding paragraphs (a)(1)(iv) and 

(a)(2)(v). 

■ b. Revising the first sentence in 

paragraph (a)(3). 

■ c. Revising paragraphs (b)(1)(i). 

■ d. Revising paragraph (b)(1)(ii)(B)(2). 

■ e. Adding paragraphs (b)(1)(ii)(C) and 

(D). 

■ f. Revising paragraph (b)(1)(iii). 

■ g. Revising paragraphs (b)(2)(i) 

through (iii). 

■ h. In paragraph (b)(3)(i), removing the 

language ‘‘his or her’’ and adding in its 

place the language ‘‘their’’. 

■ i. Adding a note to paragraph (b)(3)(i). 

■ j. Revising paragraph (b)(3)(iii). 

■ k. Adding paragraph (b)(3)(iv). 

■ l. Revising paragraphs (b)(4)(iv), and 

(f). 

The revisions and additions read as 

follows: 

§ 71.45 Revocation and discharge of 

Family Caregivers. 

(a) * * * 

(1) * * * 

(iv) Residing outside a State. VA will 

revoke the designation of a Family 

Caregiver when the eligible veteran or 

Family Caregiver no longer resides in a 

State. Note: If an eligible veteran no 

longer resides in a State, VA will revoke 

the designation of each of the eligible 

veteran’s Family Caregivers. 

(2) * * * 

(v)(A) In the case of a revocation 

based on paragraph (a)(1)(iv) of this 

section, the date of revocation will be 

the earlier of the following dates, as 

applicable: 

(1) The date the eligible veteran no 

longer resides in a State. 

(2) The date the Family Caregiver no 

longer resides in a State. 

(B) If VA cannot identify the date the 

eligible veteran or Family Caregiver, as 

applicable, no longer resides in a State, 

the date of revocation based on 

paragraph (a)(1)(iv) of this section will 

be the earliest date known by VA that 

the eligible veteran or Family Caregiver, 

as applicable, no longer resides in a 

State, but no later than the date on 

which VA identifies the eligible veteran 

or Family Caregiver, as applicable, no 

longer resides in a State. 

(3) Continuation of benefits. In the 

case of revocation based on VA error 

under paragraph (a)(1)(iii) of this 

section, caregiver benefits will continue 

for two months after the date VA issues 

the notice of revocation. * * * 

(b) * * * 

(1) * * * 

(i) Bases for discharge. Except as 

provided in paragraph (f) of this section, 


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the Family Caregiver will be discharged 

from the Program of Comprehensive 

Assistance for Family Caregivers based 

on any of the following: 

(A) Except as provided in paragraphs 

(a)(1)(ii)(A) and (b)(1)(i)(B) of this 

section, VA determines the eligible 

veteran does not meet the requirements 

of § 71.20 because of improvement in 

the eligible veteran’s condition or 

otherwise; 

(B) Death or institutionalization of the 

eligible veteran. Note: VA must receive 

notification of death or 

institutionalization of the eligible 

veteran as soon as possible but not later 

than 30 days from the date of death or 

institutionalization; 

(C) The Family Caregiver requests 

discharge due to domestic violence (DV) 

or intimate partner violence (IPV) 

perpetrated by the eligible veteran 

against the Family Caregiver; or 

(D) VA determines unmitigated 

personal safety issues exist for the 

Family Caregiver due to DV or IPV by 

the eligible veteran against the Family 

Caregiver. 

(ii) * * * 

(B) * * * 

(2) Date that the institutionalization 

begins, if it is known on such date that 

the eligible veteran is expected to be 

institutionalized for a period of 90 days 

or more. 

* * * * * 

(C) For discharge based on paragraph 

(b)(1)(i)(C) of this section, the date of 

discharge will be the present or future 

date provided by the Family Caregiver 

or the date of the Family Caregiver’s 

request for discharge if the Family 

Caregiver does not provide a date. If the 

request does not include an identified 

date of discharge, VA will contact the 

Family Caregiver to request a date. If 

unable to successfully obtain this date, 

discharge will be effective as of the date 

of the request. 

(D) For discharge based on paragraph 

(b)(1)(i)(D) of this section, the date of 

discharge will be the date VA issues 

notice of its determination. 

(iii) Continuation of benefits. (A) 

Except as provided in paragraph 

(b)(1)(iii)(B) of this section, caregiver 

benefits will continue for three months 

after the date of discharge. 

(B) In the case of discharge based on 

paragraph (b)(1)(i)(C) of this section, 

caregiver benefits will continue for one 

month after the date of discharge. 

Notwithstanding the previous sentence, 

caregiver benefits will continue for three 

months after the date of discharge when 

any of the following can be established: 

(1) The issuance of a protective order, 

to include interim, temporary and/or 

final protective orders, to protect the 

Family Caregiver from DV or IPV 

perpetrated by the eligible veteran. 

(2) A police report indicating DV or 

IPV perpetrated by the eligible veteran 

against the Family Caregiver or a record 

of an arrest related to DV or IPV 

perpetrated by the eligible veteran 

against the Family Caregiver. 

(3) Documentation of disclosure of DV 

or IPV perpetrated by the eligible 

veteran against the Family Caregiver to 

a treating provider (e.g., physician, 

dentist, psychologist, rehabilitation 

therapist) of the eligible veteran or 

Family Caregiver, Intimate Partner 

Violence Assistance Program (IPVAP) 

Coordinator, therapist, or counselor. 

(2) * * * 

(i) Bases for discharge. Except as 

provided in paragraph (f) of this section, 

the Family Caregiver will be discharged 

from the Program of Comprehensive 

Assistance for Family Caregivers based 

on any of the following: 

(A) Death or institutionalization of the 

Family Caregiver. Note: VA must 

receive notification of death or 

institutionalization of the Family 

Caregiver as soon as possible but not 

later than 30 days from the date of death 

or institutionalization. 

(B) VA determines the Family 

Caregiver is not able to carry out 

specific personal care services, core 

competencies, or additional care 

requirements. 

(ii) Discharge date. (A) In the case of 

discharge based on paragraph 

(b)(2)(i)(A) of this section, the date of 

discharge will be the earliest of the 

following dates, as applicable: 

(1) Date of death of the Family 

Caregiver. 

(2) Date that the institutionalization 

begins, if it is known on such date that 

the Family Caregiver is expected to be 

institutionalized for a period of 90 days 

or more. 

(3) Date of the 90th day of 

institutionalization. 

(B) In the case of discharge based on 

paragraph (b)(2)(i)(B) of this section, the 

date of discharge will be provided in 

VA’s final notice of such discharge to 

the eligible veteran and Family 

Caregiver, and such date will be no 

earlier than 60 days after VA provides 

advanced notice of its findings to the 

eligible veteran and Family Caregiver 

that the Family Caregiver is not able to 

carry out specific personal care services, 

core competencies, or additional care 

requirements. 

(iii) Continuation of benefits. 

Caregiver benefits will continue for 

three months after date of discharge in 

paragraph (b)(2)(ii)(A)(2) or (3) or 

(b)(2)(ii)(B) of this section. 

(3) * * * 

(i) * * * 

Note to paragraph (b)(3)(i): Requests of the 

Family Caregiver for discharge due to DV or 

IPV perpetrated by the eligible veteran 

against the Family Caregiver will be 

considered under paragraph (b)(1) of this 

section. 

* * * * * 

(iii) Continuation of benefits. 

Caregiver benefits will continue for one 

month after the date of discharge. 

(iv) Rescission. VA will allow the 

Family Caregiver to rescind their 

request for discharge and be reinstated 

if the rescission is made within 30 days 

of the date of discharge. If the Family 

Caregiver expresses a desire to be 

reinstated more than 30 days from the 

date of discharge, a new joint 

application is required. This ability to 

rescind requests for discharge does not 

apply to requests for discharge under 

paragraph (b)(1)(i)(C) of this section. 

(4) * * * 

(iv) Continuation of benefits. 

Caregiver benefits will continue for one 

month after the date of discharge. 

Notwithstanding the previous sentence, 

caregiver benefits will continue for three 

months after the date of discharge when 

any of the requirements in paragraph 

(b)(1)(iii)(B)(1) through (3) can be 

established. 

* * * * * 

(f) Multiple bases for revocation or 

discharge. In the instance that a Family 

Caregiver may have their designation 

revoked or be discharged pursuant to 

one or more of the criteria in paragraphs 

(a) or (b) of this section, respectively, 

the Family Caregiver’s designation will 

be revoked or the Family Caregiver will 

be discharged, as applicable, pursuant 

to the basis that would result in the 

earliest date of revocation or discharge. 

■ 9. Add § 71.55 to read as follows: 

§ 71.55 Home visits and emergency 

declarations. 

Notwithstanding the requirements in 

this part, for the duration of and in the 

locations covered by an emergency 

declaration, VA may complete home 

visits under this part through telehealth 

as defined in 38 CFR 17.417(a)(4). For 

purposes of this section, emergency 

declaration refers to any emergency, 

declared by a Federal, State, or local 

authority, involving a safety or public 

health risk that impacts in-person 

interaction between VA staff and 

individuals applying for or participating 

in a program under this part, including 

but not limited to: 


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(a) Natural disasters and weatherrelated emergencies when travel to, 

from, or within, or time spent in the 

affected area would pose a safety risk; 

and 

(b) Emergencies related to influenza, 

coronavirus, respiratory illness, or other 

contagions that pose a public health 

risk. 

[FR Doc. 2024–28079 Filed 12–5–24; 8:45 am] 

BILLING CODE 8320–01–P 


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