`[Federal Register Volume 89, Number 235 (Friday, December 6, 2024)]
[Proposed Rules]
[Pages 97404-97457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28079]



[[Page 97403]]

Vol. 89

Friday,

No. 235

December 6, 2024

Part IV





Department of Veterans Affairs





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38 CFR Part 71





Amendments to the Program of Comprehensive Assistance for Family 
Caregivers; Proposed Rule

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

[[Page 97404]]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 71

RIN 2900-AR96


Amendments to the Program of Comprehensive Assistance for Family 
Caregivers

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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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 Sec.  71.15) of eligible veterans, and making other changes 
affecting program eligibility and VA's evaluation of PCAFC 
applications.

B. Recent Program Improvements

    VA adopted revisions to 38 CFR part 71 in a final rule dated July 
31, 2020, following the enactment of the VA MISSION Act. 85 FR 46226 
(July 31, 2020) (hereinafter the July 31, 2020 Final Rule). The July 
31, 2020 Final Rule included changes to certain PCAFC eligibility 
criteria and took effect October 1, 2020.
    In parallel to those regulatory changes, VA implemented new 
processes used within PCAFC. For example, in late 2020, VA implemented 
the use of Centralized Eligibility and Appeals Teams (CEATs). CEATs are 
composed of a standardized group of inter-professional, licensed 
practitioners, with specific expertise and training in the eligibility 
requirements for PCAFC and the criteria for the higher stipend level. 
CEATs make determinations of PCAFC eligibility and, if applicable, 
determinations on whether the Primary Family Caregiver is eligible for 
the higher stipend level. Since implementing CEATs, the time required 
to evaluate PCAFC eligibility and render application determinations has 
been markedly reduced. At the end of fiscal year 2021, 62.9 percent of 
PCAFC application determinations were rendered within 90 days of VA 
receiving the application. By the end of fiscal year 2023, this 
percentage increased and 98 percent of PCAFC application determinations 
were rendered within 90 days of VA receiving the application.
    Additionally, VA continues concerted efforts to enhance training of 
staff involved in the evaluation of PCAFC eligibility criteria and 
delivery of PCAFC. Further, VA continues to institute standardized 
quality assurance measures to monitor and support accuracy and 
consistency in decision-making. If VA issues a PCAFC determination that 
an individual disagrees with, processes are in place for individuals to 
request a review of or appeal such decision(s). Those processes are not 
addressed in this proposed rule. Information about options to request 
review of or appeal a PCAFC decision is available at https://www.caregiver.va.gov/support/PCAFC_Appeals.asp.
    Since these regulatory and policy changes have taken effect, access 
to PCAFC has expanded and the number of eligible veterans and Family 
Caregivers participating in PCAFC has continued to grow. VA has, 
however, continued to hear concerns from veterans, caregivers, and 
other stakeholders about inconsistency in VA's decisions impacting 
eligibility for PCAFC, and concerns that certain PCAFC eligibility 
criteria may be too restrictive.
    In response to those concerns, in March 2022, VA initiated a review 
of PCAFC to examine areas within PCAFC for which changes might be 
considered. This review included engagements with veterans, caregivers, 
Veterans Service Organizations (VSOs) and others to hear direct 
feedback about PCAFC.\1\ During

[[Page 97405]]

this review, VA identified further opportunities for improvement.
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    \1\ See Updates on the Family Caregiver program for legacy 
participants and applicants, VA press release, April 20, 2022, 
available at https://news.va.gov/102672/updates-on-the-family-caregiver-program-for-legacy-participants-and-applicants/ (last 
visited Aug. 8, 2024).
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C. Consideration of Regulatory Amendments and Executive Order 14095, 
Increasing Access to High-Quality Care and Supporting Caregivers

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

D. Public Input

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

II. Proposed Changes to 38 CFR Part 71

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

A. Transition Period for Legacy Cohort

    VA is proposing changes to PCAFC eligibility and stipend level 
criteria as part of this rulemaking. Under this proposal, VA would 
extend the transition period for legacy participants and legacy 
applicants, and their Family Caregivers, as those terms are defined in 
Sec.  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 Sec.  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 Sec. Sec.  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 Sec.  71.10 sets forth the purpose and scope of part 71. 
Paragraph (b) of Sec.  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 Sec.  
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 Sec.  71.15.
    VA proposes no other changes to Sec.  71.10.

C. 38 CFR 71.15 Definitions

    Section 71.15 contains definitions for terms used throughout part 
71. VA proposes to amend Sec.  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 Sec.  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 Sec.  
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 Sec. Sec.  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 Sec.  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 Sec.  71.15. VA proposes to add language that is 
included in the description of ADL in Sec.  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 Sec.  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 
Sec. Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  
71.40(c)(4)(i)(A)(2) without referencing the term inability to perform 
an ADL in Sec.  71.15. Those proposed amendments would eliminate the 
need for the current definition of inability to perform an ADL in Sec.  
71.15 and reduce the potential for confusion. Therefore, VA proposes to 
remove the term inability to perform an ADL and its definition from 
Sec.  71.15.
3. Institutionalization
    In Sec.  71.15, VA proposes to revise the current definition of 
institutionalization. This term is used in Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  71.45(a)(1)(ii)(A) (that is, because 
the eligible veteran would not meet the requirements of Sec.  
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 Sec.  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 Sec.  
71.20(a)(5) and (6), among other requirements, would help to ensure 
that the eligible veteran and Family Caregiver continue participating 
in PCAFC only when otherwise eligible to do so.
    The definition of institutionalization also references ``other 
similar setting''. VA proposes to add the phrase ``as determined by 
VA'' after ``other similar setting'' to clarify that what is considered 
a ``similar'' setting is a VA determination. This is consistent with 
current practice. VA also proposes to replace the phrase ``refers to'' 
with the word ``means'' within the definition of institutionalization. 
This is a non-substantive edit to align with the formatting of other 
definitions found within Sec.  71.15.
4. Joint Application
    In Sec.  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 
Sec.  71.25(a), in Sec.  71.25(f), in Sec.  71.40(d), and in Sec.  
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

[[Page 97409]]

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 Sec.  71.20(a)(3) and is 
also referenced in the definition of unable to self-sustain in the 
community, which is applied in Sec.  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

[[Page 97410]]

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 Sec.  
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 Sec.  71.15.
    For these reasons, VA proposes to remove the term need for 
supervision, protection, or instruction and its definition from Sec.  
71.15.
7. Unable to Self-Sustain in the Community
    In Sec.  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 
Sec.  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 Sec.  
71.40(c)(4)(i)(A)(2). This term and its definition are also used in 
Sec.  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 
Sec.  71.40(c)(4)(i)(A).
    As explained below, VA proposes to revise Sec.  
71.40(c)(4)(i)(A)(2), which currently explains that if VA determines 
that the eligible veteran is unable to self-sustain in the community, 
the Primary Family Caregiver's monthly stipend is calculated by 
multiplying the monthly stipend rate by 1.00. In proposed Sec.  
71.40(c)(4)(i)(A)(2), VA would list the criteria for the higher stipend 
level without referencing the term unable to self-sustain in the 
community. Consistent with that change, VA would also remove the term 
unable to self-sustain in the community from Sec.  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 Sec.  71.15.
8. Serious Injury
    In Sec.  71.15, VA proposes to revise the definition of serious 
injury. The current definition in Sec.  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 Sec.  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 Sec.  
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 Sec.  4.16(a), total disability ratings may be assigned 
when a veteran's schedular rating is less than total (which is to say, 
less than 100 percent) but where the veteran is unable to secure or 
follow a substantially gainful occupation due to service-connected 
disabilities. In other words, even though the veteran may not meet the 
requirements for a total (or 100 percent) disability rating by 
reference to the VA disability rating schedule criteria, the veteran 
may be compensated as if they were 100 percent disabled if their 
service-connected disability or the combination of their service-
connected disabilities prevents them from engaging in substantial 
gainful employment.
    The requirements for IU include that a veteran either (1) has one 
service-connected disability rated at least 60 percent disabling, or 
(2) has two or more service-connected disabilities with at least one 
rated at least 40 percent disabling and a combined rating of at least 
70 percent. See Sec.  4.16(a). VA also allows for extra-schedular 
consideration for an IU rating in cases of veterans who are 
unemployable by reason of service-connected disabilities, but who fail 
to meet these percentage standards. See Sec.  4.16(b).
    In VA's July 31, 2020 Final Rule, VA revised the definition of 
serious injury. 85 FR 46245-46251 (July 31, 2020). In promulgating this 
definition, VA declined to adopt a recommendation from a commenter who 
recommended that VA consider including in the definition of serious 
injury service-connected veterans who are in receipt of an IU rating. 
Id. at 46249-46250. IU may encompass veterans with service-connected 
disabilities rated less than 70 percent, and VA did not believe it 
would be appropriate to use IU as a substitute for having a single or 
combined 70 percent rating for the purposes of PCAFC. Id. at 46250. VA 
explained that not all veterans and servicemembers applying for or 
participating in PCAFC would have been evaluated by VA for such rating, 
and if VA were to create an exception in the definition of serious 
injury for individuals with an IU rating, VA would also need to 
consider whether other exceptions should also satisfy the definition. 
Id. Additionally, VA referenced that IU had proven to be a very 
difficult concept to apply consistently in the context of disability 
compensation and had been the source of considerable dissatisfaction 
with VA adjudications and of litigation. Id. Observing that importing 
this standard could introduce potential inconsistency into PCAFC, VA 
declined to make any changes to incorporate IU into the

[[Page 97411]]

definition of serious injury in VA's July 31, 2020 Final Rule. Id.
    Following VA's implementation of the revised definition of serious 
injury, veterans and other stakeholders continued to raise concerns 
regarding the exclusion of IU from the definition of serious injury. VA 
therefore took another look at this topic and reexamined the exclusion 
of IU. Upon further review and reconsideration, VA now proposes to 
include a total disability rating for compensation based on IU within 
the definition of serious injury for purposes of PCAFC, regardless of 
the schedular disability rating assigned as VA has concluded the 
advantages of including IU in the definition of serious injury outweigh 
the concerns VA identified with doing so in VA's 2020 final rule.
    VA's Schedule for Rating Disabilities (VASRD) percentage ratings 
represent the average impairment in earning capacity resulting from 
service-connected disabilities. See Sec.  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 Sec.  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 Sec.  
4.16. VA's assignment of an IU rating establishes that the veteran's 
service-connected disability or disabilities renders them unemployable 
and compensable as if they were 100 percent disabled. Therefore, 
individuals with IU assigned by VA have the same level of impairment in 
earning capacity as that of an individual with a schedular 100 percent 
disability rating, regardless of whether the individual's disability 
picture warrants a 100-percent rating under the rating schedule(s) for 
the service-connected disability or disabilities.
    In proposing this change, VA also reexamined its prior concerns 
with including IU in the definition of serious injury, and VA no longer 
believes those concerns necessitate the same approach. One such concern 
was the fact that not all veterans and servicemembers applying for or 
participating in PCAFC will have been evaluated by VA for IU. See 85 FR 
46250 (July 31, 2020). While this is still true, VA notes that any 
individual who does not currently have a total disability rating, 
including those that do not meet the definition of serious injury 
because their service-connected disability rating is less than 70 
percent, can file a claim for an increased rating, which may include a 
request for IU if they believe such a rating is warranted.\2\ There are 
existing processes for individuals to request consideration for IU, and 
adding IU to the definition of serious injury as proposed would provide 
an additional opportunity for veterans to satisfy the serious injury 
requirement in Sec.  71.20(a)(2).
---------------------------------------------------------------------------

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

    VA also considered that IU was a difficult concept to apply 
consistently in the context of disability compensation. Id. While VA 
knows that IU may be challenging to apply consistently and has been the 
source of litigation, it does not want to exclude veterans with IU 
ratings from meeting the definition of serious injury based on these 
challenges and prevent them from participating in PCAFC when all other 
eligibility requirements are met.
    Additionally, VA has examined whether other criteria should meet 
the definition of serious injury (based on disability rating criteria 
or otherwise). Based on this review, the only criterion VA identified 
as being equivalent to having a single or combined 70 percent service-
connected rating or higher, is a VA rating of IU. However, as indicated 
below, VA welcomes input from the public on any other VA ratings or 
other criteria that VA should consider as potentially meeting the 
definition of serious injury for purposes of PCAFC.
    Accordingly, VA believes its earlier concerns about including IU in 
the definition of serious injury are now outweighed by the advantages 
that would result for individuals with an IU rating who satisfy all 
other PCAFC eligibility criteria. Thus, when VA determines that a 
veteran's service-connected disability or disabilities are so severe as 
to render them unable to secure or follow a substantially gainful 
occupation and grants the veteran entitlement to IU, VA believes such 
disability, or disabilities, should be considered a serious injury for 
purposes of PCAFC. VA believes this is true regardless of the basis for 
VA's IU rating under Sec.  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 Sec.  71.15 to include a total disability rating for 
compensation based on IU assigned by VA. VA proposes to revise the 
definition of serious injury by reorganizing the introductory text and 
paragraphs (1) and (2), including the current criteria from paragraphs 
(1) and (2) in revised paragraphs (1) and (2), and adding this new 
basis in a new paragraph (3). This change, if adopted, would allow 
individuals who do not currently have a single or combined 70 percent 
disability rating to meet the definition of serious injury if they have 
an IU rating assigned by VA. As proposed, the definition of serious 
injury would state serious injury means any of the following as 
assigned by VA: (1) a service-connected disability rated at 70 percent 
or more; (2) any service-connected disabilities that result in a 
combined rating of 70 percent or more; or (3) any service-connected 
disability or disabilities that result in a total disability rating for 
compensation based on individual unemployability.
9. State
    In Sec.  71.15 VA proposes to add a definition for the term State. 
As explained above, current Sec.  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, Sec.  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 Sec.  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 Sec.  71.15. VA's proposed definition would be consistent with 
current Sec.  71.10(b), as VA would define State in proposed Sec.  
71.15 to have the meaning given to that term in 38 U.S.C.

[[Page 97412]]

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 Sec.  71.15 
so that it is easier to locate, understand, and reference the 
definition of this term.
10. Typically Requires
    In Sec.  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 Sec.  71.20(a)(3)(i) and 
(iii) and the monthly stipend payment criteria in proposed Sec.  
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 Sec.  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 Sec.  
71.20(a)(3)(i) and (iii) and for proposed Sec.  71.40(c)(4)(i)(A)(2)(i) 
and would be consistent with these dictionary definitions. As frequency 
occurs on a continuum, to further demonstrate where on the continuum 
VA's proposed term typically requires would fall in comparison to other 
terms of frequency, VA provides the below graphic. See also the visual 
aid published at www.regulations.gov under RIN 2900-AR96.
---------------------------------------------------------------------------

    \3\ Cambridge University Press & Assessment, 2023, https://dictionary.cambridge.org/dictionary/english/typically (last visited 
Feb. 8, 2024) (also defining ``typically'' as ``used when you are 
giving an average or usual example of a particular thing'' and ``in 
a way that shows the characteristics of a particular kind of person 
or thing; or gives a usual example of a particular thing'').
    \4\ The Britannica Dictionary, 2023, https://www.britannica.com/dictionary/typically (last visited Feb. 8, 2024).
---------------------------------------------------------------------------

Figure 1--Typically Requires
[GRAPHIC] [TIFF OMITTED] TP06DE24.004

    Additionally, like the definition of in the best interest in Sec.  
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 Sec.  71.20(a)(3)(i) and (iii) and proposed Sec.  
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 Sec. Sec.  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 
Sec.  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 Sec.  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 Sec.  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 Sec.  71.20(a)(7)). 
VA also proposes to make technical edits to Sec.  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 Sec.  
71.20(a) would also have to be met, in addition to meeting other 
requirements in part 71.

[[Page 97413]]

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

[[Page 97414]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 97415]]

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 Sec.  71.20(a)(3)(i)
    A determination that a veteran or servicemember typically requires 
hands-on assistance to complete one or more ADL under proposed Sec.  
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 Sec.  71.20(a)(3)(i) 
would not preclude individuals from being determined to be in need of 
personal care services under another basis in Sec.  71.20(a)(3). 
Veterans and servicemembers could also be determined to be in need of 
personal care services based on proposed Sec.  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 Sec.  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 Sec.  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 Sec.  71.15, VA has applied the statutory 
language in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) when determining 
whether a veteran or servicemember is in need of personal care services 
under 38 CFR 71.20(a)(3)(ii).
    VA proposes to update its regulations to align with VA's current 
practice of interpreting the statutory criteria in 38 U.S.C. 
1720G(a)(2)(C)(ii) and (iii) separately. To do so, VA proposes to 
revise 38 CFR 71.20(a)(3)(ii) to align with how VA has implemented the 
statutory criteria for 38 U.S.C. 1720G(a)(2)(C)(ii) (that is, a need 
for supervision or protection based on symptoms or residuals of 
neurological or other impairment or injury) as a result of the Veteran 
Warriors decision. For purposes of interpreting 38 U.S.C. 
1720G(a)(2)(C)(ii), VA proposes to revise 38 CFR 71.20(a)(3)(ii) by 
replacing the language ``[a] need for supervision, protection, or 
instruction'' with the language ``[t]he individual has a frequent need 
for supervision or protection based on symptoms or residuals of 
neurological or other impairment or injury''. This would be consistent 
with the statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii). However, 
as previously discussed regarding 38 U.S.C. 1720G(a)(2)(C)(i), the 
statutory language in section 1720G(a)(2)(C)(ii) does not include an 
explicit frequency requirement; therefore, VA proposes to include the 
phrase ``has a frequent need'' in proposed 38 CFR 71.20(a)(3)(ii) to 
address that gap. Such term would be reflective of how VA has been 
applying this statutory basis since the Veteran Warriors ruling. 
Consistent with that, VA intends to apply common dictionary definitions 
of the word ``frequent'', which refer to an action occurring 
``repeatedly, ``habitually'', or ``on many occasions'', when 
implementing this new criterion.\5\ VA discusses its proposed 
implementation of this language in greater detail further below.
---------------------------------------------------------------------------

    \5\ See Merriam-Webster Dictionary, 2023, https://www.merriam-webster.com/dictionary/frequent (last visited Jul. 26, 2024); The 
Britannica Dictionary, 2023, https://www.britannica.com/dictionary/frequent (last visited Jul. 26, 2024); and Oxford English 
Dictionary, 2023, https://www.oed.com/search/dictionary/?scope=Entries&q=frequent (last visited Jul. 26, 2024).
---------------------------------------------------------------------------

    In implementing this proposed change, VA would continue to apply 
the statutory criteria as it relates to the interpretation of 
``supervision or protection'' and ``symptoms or residuals of 
neurological or other impairment or injury'' as VA does in current 
practice. VA discusses this interpretation below.
i. Supervision or Protection
    The statutory language in 38 U.S.C. 1720G(a)(2)(C)(ii) does not 
define supervision or protection. Therefore, VA has relied on common 
definitions and uses of these terms to inform VA's interpretation of 
this statutory provision. For instance, consistent with dictionary 
definitions of the term, VA considers ``supervision'' to be critical 
watching of an individual to provide oversight or directing (such as of 
activities or actions).\6\ For the purposes of proposed 38 CFR 
71.20(a)(3)(ii), supervision would not be limited to or dependent upon 
the veteran's or servicemember's needs related to specific activities 
or functions, which is in contrast to VA's interpretation of 
``supervision'' under proposed Sec.  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

[[Page 97416]]

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

    \6\ See Merriam-Webster Dictionary, 2023, https://www.merriam-webster.com/dictionary/supervision (last visited Feb. 8, 2024); The 
Britannica Dictionary, 2023, https://www.britannica.com/dictionary/supervision (last visited Feb. 8, 2024); and Oxford English 
Dictionary, 2023, https://www.oed.com/search/dictionary/?scope=Entries&q=supervision (last visited Feb. 8, 2024).
    \7\ See Merriam-Webster Dictionary, 2023, https://www.merriam-webster.com/dictionary/protect (last visited Feb. 8, 2024); and The 
Britannica Dictionary, 2023, https://www.britannica.com/dictionary/protection (last visited Feb. 8, 2024).
---------------------------------------------------------------------------

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

[[Page 97417]]

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 Sec.  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 Sec.  
71.20(a)(3)(ii) become effective, VA would develop trainings and 
guidance materials to support consistent evaluation of this standard.
c. Proposed Sec.  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 Sec.  
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 Sec.  
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 Sec.  
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 
Sec.  71.20(a)(3)(i), as discussed above. Although the words 
``regular'' and ``daily'' in 38 U.S.C. 1720G(a)(2)(C)(iii) could be 
viewed in isolation as referring to specific frequencies, for the 
reasons explained below, VA does not believe that Congress intended 
those words to establish any frequency requirement in section 
1720G(a)(2)(C)(iii). Accordingly, VA proposes to include the term 
typically requires in proposed 38 CFR 71.20(a)(3)(iii) to modify the 
frequency requirement previously established in the definition of 
supervision, protection, or instruction that referred to a ``daily 
basis''.\8\
---------------------------------------------------------------------------

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

    \9\ See Cambridge Dictionary, 2023, https://dictionary.cambridge.org/us/dictionary/english/instruction (last 
visited Feb. 8, 2024); The Britannica Dictionary, 2023, https://www.britannica.com/dictionary/instruction (last visited Feb. 8, 
2024); and Oxford English Dictionary, 2023, https://www.oed.com/search/dictionary/?scope=Entries&q=instruction (last visited Feb. 8, 
2024).
---------------------------------------------------------------------------

    VA's interpretation of the meaning of ``supervision'' is addressed 
in the discussion above regarding proposed 38 CFR 71.20(a)(3)(ii) (that 
is, VA considers ``supervision'' to be critical watching of an 
individual to provide oversight or directing (such as of activities or 
actions)).\10\ While the term ``supervision'' has the same meaning in 
proposed paragraphs (a)(3)(ii) and (iii), in proposed paragraph 
(a)(3)(iii) supervision would be needed with respect to the veteran's 
or servicemember's ability to complete one or more ADL, in contrast to 
supervision under proposed paragraph (a)(3)(ii) which does not include 
that same requirement.
---------------------------------------------------------------------------

    \10\ See Merriam-Webster Dictionary, 2023, https://www.merriam-webster.com/dictionary/supervision (last visited Sept. 24, 2023); 
The Britannica Dictionary, 2023, https://www.britannica.com/dictionary/supervision (last visited Feb. 8, 2024); and Oxford 
English Dictionary, 2023, https://www.oed.com/search/dictionary/?scope=Entries&q=supervision (last visited Feb. 8, 2024).
---------------------------------------------------------------------------

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

[[Page 97418]]

Sec.  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 Sec.  
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 Sec.  71.20(a)(3)(iii). This is also consistent 
with how VA currently interprets this term when applying the statutory 
criteria today.
---------------------------------------------------------------------------

    \11\ See Cambridge Dictionary, 2023, https://dictionary.cambridge.org/us/dictionary/english/regular (last visited 
Feb. 8, 2024); The Britannica Dictionary, 2023, https://www.britannica.com/dictionary/regular (last visited Feb. 8, 2024); 
and Oxford English Dictionary, 2023, https://www.oed.com/search/dictionary/?scope=Entries&q=regular (last visited Feb. 8, 2024).
    \12\ See Merriam-Webster Dictionary, 2023, https://www.merriam-webster.com/dictionary/regular (last visited Feb. 8, 2024).
    \13\ See for example, Regular Military Compensation (RMC) 
Calculator, Department of Defense, https://militarypay.defense.gov/calculators/rmc-calculator/ (Describing ``regular military 
compensation'' as a basic level of compensation that every 
servicemember receives.) (last visited Feb. 8, 2024).
---------------------------------------------------------------------------

    VA's use of the term ``regular'' in proposed Sec.  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 Sec.  71.15, typically requires would be a clinical 
determination that would take into consideration an individual's unique 
functional needs, abilities, and usual routines when assessing the 
frequency of the individual's need for personal care services.
---------------------------------------------------------------------------

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

    Similarly, VA would continue to interpret the term ``extensive'' to 
also account for size or degree but on a larger scale than regular. The 
term ``extensive'' commonly refers to that which is large in size or 
amount, having a wide or considerable extent, or extending over or 
occupying a large surface or space, covering a large area or being a 
large amount.\15\ Each of these meanings for extensive refers to a size 
or degree. VA therefore equates ``extensive'' with a greater size or 
higher degree of personal care services requiring instruction or 
supervision than that of ``regular'' as explained below.
---------------------------------------------------------------------------

    \15\ See Merriam-Webster Dictionary, 2023, https://www.merriam-webster.com/dictionary/extensive (last visited Feb. 8, 2024); The 
Britannica Dictionary, 2023, https://www.britannica.com/dictionary/extensive (last visited Feb. 8, 2024); and Oxford English 
Dictionary, 2023, https://www.oed.com/search/dictionary/?scope=Entries&q=extensive (last visited Feb. 8, 2024).
---------------------------------------------------------------------------

    VA interprets the terms regular (something of average or medium 
size) and extensive (that which is large in size), to reflect different 
points along a spectrum. VA interprets this difference in size or 
degree to reflect a distinction in the size or degree of personal care 
services required by the veteran or servicemember. This means that a 
regular need for instruction or supervision is of a lower size or 
degree than an extensive need for instruction or supervision.
    Using this proposed standard, if adopted as final, when applying 
the criterion in proposed 38 CFR 71.20(a)(3)(iii), VA would interpret 
the need for extensive instruction or supervision to mean that such 
instruction or supervision is required throughout the performance of 
the activity; hence the personal care services (that is, instruction or 
supervision) required to complete the activity would be of a large size 
or degree. In contrast, VA would interpret the need for regular 
instruction or supervision to mean such personal care services are only 
needed to complete a portion of the activity. Thus, VA would consider 
``regular'' to refer to a lesser size or degree of instruction or 
supervision than that of ``extensive''.
    Although VA interprets ``regular'' and ``extensive'' to reflect 
different sizes or degrees of personal care services required by the 
veteran or servicemember, having either a ``regular'' or ``extensive'' 
need for instruction or supervision to complete one or more ADL would 
satisfy the criterion in proposed Sec.  71.20(a)(3)(iii). This is 
consistent with VA's proposed approach with regard to supervision or 
protection under proposed Sec.  71.20(a)(3)(ii) and instruction or 
supervision under Sec.  71.20(a)(3)(iii) discussed above. However, the 
distinction between ``regular'' and ``extensive'' would be relevant to 
determinations under proposed Sec.  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

[[Page 97419]]

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 Sec.  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 Sec.  71.15, VA 
would not require that the ADL with which the individual requires 
regular or extensive instruction or supervision be performed on a daily 
basis. ADL often occur on a daily basis, but not always (for example, 
bathing). For purposes of this criterion, VA would apply the proposed 
definition of ADL in 38 CFR 71.15, and the term typically requires 
would set forth the applicable frequency of need. VA explains its 
rationale for this interpretation in more detail below.
    In determining whether the ability of the veteran or servicemember 
to function in daily life would be seriously impaired for purposes of 
38 U.S.C. 1720G(a)(2)(C)(iii), VA contemplated what other essential 
functions or activities, beyond or instead of ADL, might be considered 
functions in daily life that would be seriously impaired without 
regular or extensive instruction or supervision under proposed 38 CFR 
71.20(a)(3)(iii). Specifically, VA considered activities caregivers 
commonly assist veterans with beyond ADL. Such activities include but 
are not limited to meal preparation, shopping for essential needs, 
managing finances, housework, and coordinating medical care.\16\ VA 
does not believe Congress intended to capture such activities under 38 
U.S.C. 1720G(a)(2)(C)(iii) for the reasons discussed below.
---------------------------------------------------------------------------

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

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

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

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

[[Page 97420]]

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 Sec.  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 Sec.  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 Sec.  71.20(a)(3)(i), 
the individual would typically require hands-on assistance, and under 
proposed Sec.  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 Sec.  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 Sec.  71.20(a)(3) such 
as meeting the criterion in proposed Sec.  71.20(a)(3)(i) and (ii) or 
meeting all three criteria in proposed Sec.  71.20(a)(3)(i) through 
(iii).
2. Section 71.20(a)(7)--Ongoing Care From a Primary Care Team
    Current Sec.  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 Sec.  
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 follow-up 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 Sec.  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 Sec.  71.20(b) and (c).
    First, VA proposes to amend Sec.  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 Sec.  71.15. Finally, VA

[[Page 97421]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  71.25(a)(1) to address 
instances of a Secondary Family Caregiver seeking designation as the 
Primary Family Caregiver and would reorganize Sec.  71.25(a)(1) as a 
result. As proposed, Sec.  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 Sec.  71.25(a)(1).
    Proposed Sec.  71.25(a)(1)(i) would consist of the second sentence 
of current paragraph Sec.  71.25(a)(1) without change. Proposed Sec.  
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 Sec.  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 Sec.  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 Sec.  
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 Sec.  71.40(c)(4). See 
Sec.  71.25(a)(2)(i). Notwithstanding that, VA will not evaluate a 
veteran's or servicemember's eligibility under Sec.  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 Sec.  71.20 
as part of the application process and proposes to reorganize

[[Page 97422]]

Sec.  71.25(a)(2)(i) as a result. VA proposes to revise Sec.  
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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  71.25(a)(2)(i)(A)(2), VA would not reevaluate an 
eligible veteran under Sec.  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 Sec.  71.20(a) or proposed Sec.  
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 Sec.  71.20(a). In proposed Sec.  71.25(a)(2)(i)(A)(2), VA 
would reference the Sec.  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 Sec.  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 Sec.  71.20(a) would also meet the eligibility 
criteria in proposed Sec.  71.20(a). Instead of evaluating eligibility 
under Sec.  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 Sec.  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 
Sec.  71.30(c), which is discussed below.
    As proposed, Sec.  71.25(a)(2)(i) would state upon receiving such 
application, except as provided in paragraphs (a)(2)(i)(A) and (B) of 
Sec.  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 Sec.  
71.40(c)(4). Proposed Sec.  71.25(a)(2)(i)(A) would state VA will not 
evaluate a veteran's or servicemember's eligibility under Sec.  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 Sec.  
71.20(a) or Sec.  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 Sec.  71.20(a)(3)(ii)).
    Additionally, VA proposes to add new Sec.  71.25(a)(2)(i)(B) to 
indicate that the required evaluations for Family Caregiver applicants 
found in Sec.  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 Sec.  
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 Sec.  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 re-evaluation 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 Sec.  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 Sec.  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 Sec.  
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 Sec.  71.40(d) requirements.
    Current Sec.  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 Sec.  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

[[Page 97423]]

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 Sec.  
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 re-submit a joint application if the designation process 
was not completed within the 90-day timeline.
    VA also proposes to amend Sec.  71.25(a)(3) to address how it would 
evaluate joint applications if the proposed revisions to the definition 
of joint application under Sec.  71.15 and other proposed changes to 
eligibility criteria discussed in this proposed rule are made final and 
effective. Current Sec.  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 Sec.  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. Sec.  71.25(a)(3)(ii). Paragraphs (A) and (B) of Sec.  
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 Sec.  
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 Sec.  
71.25(a)(3)(i) is no longer necessary. Similarly, the regulation text 
found in paragraphs (A) and (B) of Sec.  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 
Sec.  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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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

[[Page 97424]]

Sec. Sec.  71.25(a)(3)(i)-(ii) and (a)(3)(ii)(A)-(B) and add new Sec.  
71.25(a)(3)(ii)(B)(1)-(2). As proposed, Sec.  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 Sec.  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 Sec.  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 Sec.  71.15 does not apply. Proposed 
Sec.  71.25(a)(3)(ii)(B)(1)-(2) would explain that in place of the 
definition of ``need for supervision, protection, or instruction'' in 
Sec.  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 Sec.  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 Sec.  71.25(b)(2)(i) and (ii). VA proposes to revise Sec.  
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 Sec.  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 Sec.  
71.40(b)(2). During this wellness contact, VA would have the 
opportunity to confirm the non-family member Family Caregiver is living 
with the eligible veteran full-time.
    Finally, VA proposes to revise the section heading for Sec.  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 Sec.  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 Sec.  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 Sec.  71.15.

F. 38 CFR 71.30 Reassessment of Eligible Veterans and Family Caregivers

    Current Sec.  71.30 describes the process for reassessments of 
eligible veterans and Family Caregivers under PCAFC. VA proposes to 
amend Sec.  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 Sec.  71.30 by removing the language that 
reassessments will occur on an annual basis. Currently, Sec.  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 Sec.  71.30 includes consideration 
of PCAFC eligibility criteria and, if applicable, the criteria in Sec.  
71.40(c)(4)(i)(A) for purposes of the monthly stipend rate. See Sec.  
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 Sec.  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 Sec.  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 Sec.  71.30(b) and (c),

[[Page 97425]]

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 Sec.  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 Sec.  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 Sec.  71.30(a). Thus, as proposed, the first sentence of Sec.  
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 Sec.  
71.30(a) which explains that in the context of reassessments, VA 
considers whether the eligible veteran is unable to self-sustain in the 
community for purposes of the monthly stipend rate under Sec.  
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 Sec.  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 Sec.  71.30(a). The phrase ``monthly stipend 
payment'' would refer to the applicable stipend amount authorized under 
Sec.  71.40(c)(4) and would account for the term monthly stipend rate 
and its definition in Sec.  71.15. VA also proposes to remove reference 
to the term unable to self-sustain in the community from Sec.  
71.30(a), consistent with its proposed removal of such term and its 
definition from Sec.  71.15 as discussed above and further below in the 
context of proposed changes to Sec.  71.40(c)(4)(i)(A). As proposed, 
the second sentence would state that reassessments will include 
consideration of the monthly stipend payment under Sec.  
71.40(c)(4)(i)(A), if applicable.
2. Proposed Changes To Reassessing Eligible Veterans' Continued 
Eligibility Under Sec.  71.20(a)(3)
    Current Sec.  71.20(a)(3) sets forth one of the seven criteria in 
Sec.  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 Sec.  71.20(a)(3) through proposed revisions to 
Sec.  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 Sec.  71.30(b) as it would 
no longer be necessary if proposed changes to Sec.  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 Sec.  71.20(a)(3) not 
more frequently than every two years, with certain exceptions.
    VA reviewed findings from reassessments conducted pursuant to Sec.  
71.30(a) for participants that joined PCAFC on or after October 1, 
2020. Since implementing annual reassessments pursuant to Sec.  
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 Sec.  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 (Sec.  
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 Sec.  71.20(a)(3), the clinical evaluations associated 
with Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  71.30(b).
    The first exception would apply when an eligible veteran or Primary 
Family Caregiver requests a reassessment pursuant to proposed changes 
to Sec.  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 Sec.  71.30(a)(3). More 
details about how reassessments could be requested under proposed Sec.  
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 Sec.  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

[[Page 97426]]

determine whether a Family Caregiver has the ability to carry out the 
specific personal care services, core competencies, and additional care 
requirements described in Sec.  71.25(c)(2). This second proposed 
exception in Sec.  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, Sec.  71.30(b) would state that except as 
provided in paragraph (c) of Sec.  71.30, VA will reassess an eligible 
veteran's continued eligibility under Sec.  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, Sec.  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 Sec.  
71.30(a), and as a result, VA would also remove the exception found in 
Sec.  71.30(c). VA proposes to further revise Sec.  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 
Sec.  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 Sec.  
71.30(c). As proposed, Sec.  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 
Sec.  71.30(b), reassessments requested under proposed Sec.  71.30(c) 
would include a reassessment of an eligible veteran's continued 
eligibility under Sec.  71.20(a)(3).
    For reassessment requests under proposed Sec.  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 Sec.  
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 Sec.  
71.40(c)(4)(i)(A)(2), the date the written request under proposed Sec.  
71.30(c) is received by VA could be the effective date of the increase 
under proposed Sec.  71.40(c)(4)(ii)(C)(1)(ii). This is discussed 
further below regarding proposed changes to Sec.  71.40 under heading 
``G. 38 CFR 71.40 Caregiver benefits''. In implementing this 
requirement for a written request in proposed Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  71.30 for reassessments initiated by VA. In completing 
reassessments under Sec.  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.

[[Page 97427]]

4. Proposed Changes to Legacy Reassessments
    Current paragraph (e)(1) of Sec.  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 Sec.  71.20(a). If the eligible 
veteran meets the requirements of Sec.  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 
Sec.  71.40(c)(4)(i)(A). See Sec.  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 Sec.  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 Sec.  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 
Sec.  71.20(a) for legacy applicants and legacy participants that is 
conducted in accordance with the requirements of Sec.  71.30(a).
    VA would further revise paragraph (e)(1) to address the timeframe 
for completing legacy reassessments. VA proposes to remove the phrase 
``five-year 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 Sec.  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 Sec.  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 Sec.  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 Sec.  71.20(a), VA considers the 
monthly stipend payment under Sec.  71.40(c)(4)(i)(A) and eligibility 
for a one-time retroactive monthly stipend payment under current Sec.  
71.40(c)(4)(ii)(C)(2)(i). This one-time retroactive stipend payment is 
not currently addressed in Sec.  71.30(e). VA believes including a 
reference to the regulations that govern the one-time retroactive 
stipend payment within Sec.  71.30(e) would assist the reader in 
understanding this facet of the legacy reassessment. VA proposes to 
relocate the provisions currently found in Sec.  
71.40(c)(4)(ii)(C)(2)(i) to Sec.  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 Sec.  71.20(a), the legacy 
reassessment will include consideration of the monthly stipend payment 
under Sec.  71.40(c)(4)(i)(A) and whether the Primary Family Caregiver 
is eligible for a one-time retroactive stipend payment pursuant to 
Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  
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 Sec.  71.40(c)(4)(i)(A)(2).
    Currently, unable to self-sustain in the community is defined in 
Sec.  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 Sec.  71.15, and is 
fully dependent

[[Page 97428]]

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 Sec.  71.15 and the proposed changes to Sec.  
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 Sec.  71.40(c)(4)(i)(A)(2). In proposing to amend 
Sec.  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 Sec.  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 Sec.  
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 Sec.  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 
self-sustain in the community in Sec.  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 Sec.  71.15 and adding the criteria for determining the higher 
stipend level in proposed Sec.  71.40(c)(4)(i)(A)(2). This approach is 
consistent with VA's proposed changes to Sec.  71.15 and Sec.  
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 Sec.  71.15 and add the bases for being in need of 
personal care services into proposed Sec.  71.20(a)(3)(i) through (iii) 
rather than referring to criteria contained mostly in terms and 
definitions found in Sec.  71.15.
    In proposed Sec.  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 Sec.  71.40(c)(4)(i)(A)(2), 
just as eligible veterans could meet more than one of the bases in 
proposed Sec.  71.20(a)(3)(i) through (iii).
    Additionally, in contrast to the current definition of unable to 
self-sustain in the community, which refers exclusively to the needs of 
the eligible veteran, the criteria in proposed Sec.  
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

[[Page 97429]]

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 Sec.  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 Sec.  71.40(c)(4)(i)(A)(1) 
which states ``Level 1 Stipend'' and a heading to paragraph Sec.  
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, Sec.  71.40(c)(4)(i)(A)(2) would state that 
notwithstanding paragraph (c)(4)(i)(A)(1) of Sec.  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 
Sec.  71.40(c)(4)(i)(A)(2) would be consistent with its meaning in 
proposed Sec.  71.20(a)(3)(i) and (iii) based on the proposed 
definition in Sec.  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 Sec. Sec.  
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 Sec.  71.40(c)(4)(i)(A)(2)(i) and (ii), as 
well as its proposed use of the term typically requires in Sec.  
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, Sec.  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 hands-on assistance.
    If adopted, this would amend the standard applied under the first 
basis in the current definition of unable to self-sustain 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 Sec.  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 Sec.  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 Sec.  
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 Sec.  
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 self-sustain in the community, proposed Sec.  
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 Sec.  71.15). VA proposes to use the term ``distinct'' in front of 
``ADL'' to account for VA's proposal in new Sec.  
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 Sec.  
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 Sec.  71.20(a)(3)(i), VA 
would not require in proposed Sec.  71.40(c)(4)(i)(A)(2)(i) that 
personal

[[Page 97430]]

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 Sec.  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 Sec.  71.20(a)(3)(i).
    Additionally, while the first basis in the current definition of 
unable to self-sustain 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 Sec.  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 self-sustain 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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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 Sec.  
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 Sec.  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.
---------------------------------------------------------------------------

    \19\ See 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/hhs-guidance-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 Self-Care (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-GG-Items-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.)).
---------------------------------------------------------------------------

    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

[[Page 97431]]

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 Sec.  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 Sec.  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 Sec.  
71.20(a)(3)(iii). While proposed Sec.  71.20(a)(3)(iii) would refer to 
``regular or extensive'' instruction or supervision, proposed Sec.  
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 Sec.  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

[[Page 97432]]

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, Sec. 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 Sec.  71.40(c)(4)(i)(A)(2)(i).
    For a Primary Family Caregiver to be eligible for the higher 
stipend level under Sec.  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 Sec.  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 
Sec.  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 Sec.  
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 Sec.  
71.40(c)(4)(i)(A)(2)(ii) would address the amount and degree of 
personal care

[[Page 97433]]

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 re-orient 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 
Sec.  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 
Sec.  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 Sec.  71.40(c)(4)(i). Specifically, VA 
would amend the first sentence of the introductory text of Sec.  
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 Sec.  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. Sec.  71.40(c)(4)(ii)(A).
    VA proposes to revise current Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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

[[Page 97434]]

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.
---------------------------------------------------------------------------

    \21\ Executive Order for 2019 Pay Schedules, OPM, available at 
https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2019/executive-order-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/policy-data-oversight/pay-leave/salaries-wages/retroactive-pay-executive-order-2019-adjustments-of-certain-rates-of-pay.pdf (last 
visited Feb. 8, 2024).
---------------------------------------------------------------------------

    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 
resource-intensive 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 Sec.  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 
Sec.  71.30. VA's proposed changes to Sec.  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 Sec.  71.30(c), as discussed above. Other 
proposed changes to Sec.  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 Sec.  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 Sec.  71.15. If the eligible veteran is a legacy 
participant or legacy applicant (that is, the eligible veteran meets 
the requirements of Sec.  71.20(b) or (c)), monthly stipend payment 
increases and decreases resulting from reassessments are governed by 
current Sec.  71.40(c)(4)(ii)(C)(2). For all other eligible veterans 
(that is, those determined eligible for PCAFC under the Sec.  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

[[Page 97435]]

requirements of Sec.  71.20(b) or (c), respectively), monthly stipend 
increases and decreases resulting from reassessments are governed by 
current Sec.  71.40(c)(4)(ii)(C)(1).
    Under current Sec.  71.40(c)(4)(ii)(C)(1), if the eligible veteran 
meets the requirements of Sec.  71.20(a) only and does not meet the 
requirements of Sec.  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. Sec.  
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. Sec.  
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 Sec.  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 Sec.  71.20(b) or (c).
    Current paragraph (i) of Sec.  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 Sec.  
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 Sec.  
71.40(c)(4)(iii).
    Current paragraph (ii) of Sec.  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 
Sec.  71.20(a), that is, the legacy participant or legacy applicant 
meets PCAFC eligibility criteria in Sec.  71.20(a) that became 
effective on October 1, 2020, the new monthly stipend amount for the 
Primary Family Caregiver under Sec.  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. 
Sec.  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 Sec.  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 Sec.  71.20(a) 
only or also meets the requirements of Sec.  71.20(b) or (c), proposed 
Sec.  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 Sec.  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 Sec.  71.40(c)(4)(ii)(C)(1) (that is, those who meet the 
requirements of Sec.  71.20(a) only and not Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  71.30, VA is proposing to amend Sec.  
71.30(c) to provide eligible veterans and Primary Family Caregivers the 
opportunity to submit a written request for a reassessment. Proposed 
Sec.  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 Sec.  71.30(c), if it is 
the earlier date under proposed Sec.  71.40(c)(4)(ii)(C)(1). If adopted 
as proposed, this effective date provision would apply only to 
reassessment requests under proposed Sec.  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 Sec.  
71.30(c). Additionally, this proposed paragraph

[[Page 97436]]

would only apply to reassessments that result in an increase in the 
monthly stipend payment. Proposed Sec.  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 Sec.  71.30(c).
    Proposed Sec.  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 Sec.  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 Sec.  71.30(c), if adopted in a final rule. However, if 
VA experiences any delay in conducting a reassessment requested under 
proposed Sec.  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 Sec.  
71.40(c)(4)(ii)(C)(1)(ii) would ensure any monthly stipend payment 
increase resulting from a written request for reassessment under 
proposed Sec.  71.30(c) would become effective no later than the date 
VA received such request. Proposed Sec.  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 Sec.  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 Sec.  71.30(c) in a 
timely manner, under proposed Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  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 Sec.  
71.20(a) and (b) or (c) (that is, those legacy participants and legacy 
applicants who meet the eligibility criteria in proposed Sec.  
71.20(a)) by incorporating the requirements from current Sec.  
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 Sec.  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 Sec.  
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 Sec.  71.20(a) only (that is, 
eligible veterans who are not legacy participants or legacy applicants 
meeting the requirements of Sec.  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 Sec.  71.40(c)(4)(ii)(C)(2)(ii) but VA would add 
a reference to Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 97437]]

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 Sec.  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 Sec.  71.40(c)(4)(ii)(C)(2)(i) and 
(ii)).
iii. Proposed Technical Edits to Sec.  71.40(c)(4)(ii)
    VA proposes to add headings to the paragraphs of Sec.  
71.40(c)(4)(ii) to assist the reader in identifying provisions. VA 
proposes to add the heading ``OPM updates'' to Sec.  
71.40(c)(4)(ii)(A), the heading ``Relocation'' to Sec.  
71.40(c)(4)(ii)(B), the heading ``Reassessments'' to Sec.  
71.40(c)(4)(ii)(C), and the heading ``Effective dates'' to Sec.  
71.40(c)(4)(ii)(D).
c. Legacy Retroactive Monthly Stipend Payments
    Since October 1, 2020, VA has provided the retroactive payments 
authorized under Sec.  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 Sec.  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 Sec.  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 Sec.  71.40(c)(4)(iii) that is distinct 
from the regulatory text in Sec.  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 Sec.  71.40(c)(4)(ii)(C)(2)(i) for retroactive monthly 
stipend payments, but also account for proposed changes to Sec. Sec.  
71.15 and 71.20(a)(3) in this proposed rule.
    VA proposes to redesignate current paragraphs (c)(4)(iii) and (iv) 
of Sec.  71.40, as paragraph (c)(4)(iv) and a new paragraph (c)(4)(v), 
respectively. These paragraphs explain that Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 Sec. Sec.  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 
Sec.  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 Sec.  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 Sec.  
71.20(a)(3), and whether their Primary Family Caregiver qualifies for 
the higher stipend level payment under current Sec.  
71.40(c)(4)(i)(A)(2). To be clear, as proposed, Sec.  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 Sec.  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 
Sec.  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 Sec.  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 Sec.  71.40(c)(4)(i)(A). 
Each of these proposed paragraphs is addressed in more detail below.
    In proposed Sec.  71.40(c)(4)(iii)(A), VA would explain that, 
subject to proposed Sec.  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 
Sec.  71.40(c)(4)(ii)(C)(1), the Primary Family Caregiver may be 
eligible for a retroactive payment amount described in proposed 
paragraph Sec.  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 Sec.  71.20(a)(3) (which may 
include the criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) that VA 
has

[[Page 97438]]

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 Sec.  71.40(c)(4)(iii)(A) would set forth the criteria VA 
applies to determine eligibility under current Sec.  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 
Sec.  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 Sec.  
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 Sec.  71.20(a)(3).
---------------------------------------------------------------------------

    \22\ In the case that a legacy participant or legacy applicant 
is not determined to be eligible for PCAFC under current Sec.  
71.20(a)(3), their Primary Family Caregiver would not be eligible 
for an increase in their monthly stipend payment under current Sec.  
71.40(c)(4)(i)(A) and thus would not qualify for a retroactive 
monthly stipend payment under current Sec.  71.40(c)(4)(ii)(C)(2)(i) 
or proposed Sec.  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 Sec.  71.40(c)(4)(i).
---------------------------------------------------------------------------

    Although VA is proposing to revise two of the seven eligibility 
criteria found in Sec.  71.20 (criteria in paragraph (a)(3) and (7)), 
only the criteria that VA applies to determine eligibility under 
current Sec.  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 
Sec.  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 Sec.  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 Sec.  71.20(a) would not be amended by this 
proposed rule, and thus, would not be included in proposed Sec.  
71.40(c)(4)(iii)(A).
    Proposed paragraph Sec.  71.40(c)(4)(iii)(B) would be identical to 
the last two sentences of current Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  71.40(c)(4)(iii)(C) would incorporate the 
requirements from current Sec.  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 Sec.  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 Sec.  
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 Sec.  71.40(c)(4)(iii)(C) would state 
the first amount that would be used to calculate

[[Page 97439]]

the retroactive payment amount--the amount the Primary Family Caregiver 
was eligible to receive under paragraph (c)(4)(i)(B) or (D) of Sec.  
71.40, whichever the Primary Family Caregiver received. Primary Family 
Caregivers eligible for a retroactive monthly stipend payment under 
proposed paragraph Sec.  71.40(c)(4)(iii) would, up to that point, have 
been receiving a monthly stipend under Sec.  71.40(c)(4)(i)(B) or (D), 
so VA would maintain in proposed paragraph Sec.  71.40(c)(4)(iii)(C)(1) 
this same language from current paragraph Sec.  
71.40(c)(4)(ii)(C)(2)(i).
    Proposed paragraph (2) under Sec.  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 Sec.  71.40(c)(4)(i)(A), this 
amount would be the monthly stipend rate (as that term is defined in 
Sec.  71.15) multiplied by 0.625 or 1.00. Under current Sec.  
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 Sec.  71.15, proposed 
Sec.  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 Sec.  
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 Sec.  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 Sec.  
71.40(c)(4)(iii)(C)(2) would maintain the same criteria that VA applies 
when determining the retroactive monthly stipend payment under current 
Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  71.45. Although VA's regulations in Sec.  
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 Sec.  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 Sec.  71.45, 
where applicable.
1. Proposed Revisions to Sec.  71.45(a) Regarding Revocation of a 
Family Caregiver
    VA proposes to revise Sec.  71.45(a) to add a basis for revocation 
of a Family Caregiver and, in Sec.  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 Sec.  71.45(a)(1) establishes the bases for revocation of a 
Family Caregiver, and paragraphs (i) through (iii) of Sec.  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 Sec.  71.45(a)(1).
    Proposed Sec.  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

[[Page 97440]]

designation of each of the eligible veteran's Family Caregivers. As 
explained above, VA proposes to define the term State in Sec.  71.15 
(consistent with the definition of such term in 38 U.S.C. 101(20)). 
Therefore, the term State in proposed Sec.  71.45 (that is, in proposed 
Sec.  71.45(a)(1)(iv) and in proposed Sec.  71.45(a)(2)(v), discussed 
below) would have the meaning set forth in proposed Sec.  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 Sec.  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 Sec.  71.45(f), revocation on this basis is carried 
out pursuant to current Sec.  71.45(a)(1)(ii)(E), which is a ``catch-
all category'' for requirements under part 71 that are not otherwise 
accounted for in Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  71.45(a)(1).
    In order to address the additional basis for revocation VA proposes 
in paragraph Sec.  71.45(a)(1)(iv), as described above, VA also 
proposes to add a new paragraph Sec.  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 Sec.  
71.45(a)(2)(v)(A) would explain that in the case of a revocation based 
on Sec.  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 Sec.  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 Sec.  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 
Sec.  71.45(a)(1)(iv) and (a)(2)(v) because

[[Page 97441]]

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 Sec. Sec.  71.45(d) and 71.47, VA 
would seek to recover overpayments of benefits, as applicable, 
including in cases of revocation under proposed Sec.  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 Sec.  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 Sec.  71.45(a)(3)
    Current Sec.  71.45(a)(3) describes the continuation of benefits in 
the case of revocation based on VA error under Sec.  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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  71.47. As provided in the last 
sentence of current Sec.  71.45(a)(3), which VA does not propose to 
revise in this proposed rule, continuation of benefits under Sec.  
71.45(a)(3) will be considered an overpayment and VA will seek to 
recover overpayment of such benefits as provided in Sec.  71.47.
    Second, VA proposes to remove the language in Sec.  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 Sec.  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 Sec.  
71.45, caregiver benefits will continue for two months after the date 
VA issues the notice of revocation. It

[[Page 97442]]

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 Sec.  71.47.
2. Proposed Revisions to Sec.  71.45(b) Regarding Discharge of a Family 
Caregiver
    Paragraph (b) of Sec.  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 Sec.  71.45(b) are discussed below.
a. Proposed Revisions to Discharge Based on Institutionalization of the 
Eligible Veteran
    Current Sec.  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 
Sec.  71.20(a)(1) through (4) because of improvement in their condition 
or otherwise, or when the eligible veteran dies or is 
institutionalized. See Sec.  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 Sec.  
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 Sec.  
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 Sec.  71.45(b)(1)(i)(B), could result in 
overpayments of benefits to the Family Caregiver, which are subject to 
recoupment pursuant to Sec.  71.47.
    VA also proposes to make a clarifying edit to current Sec.  
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 Sec.  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 Sec.  71.45(b)(1), VA proposes to include two new bases for 
discharging the Family Caregiver. First, proposed Sec.  
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 Sec.  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 Sec.  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

[[Page 97443]]

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 Sec.  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 Sec.  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 Sec.  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 
Sec.  71.45, VA determines the eligible veteran does not meet the 
requirements of Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  71.45(b)(1)(i)(C), this new proposed discharge basis 
under Sec.  71.45(b)(1)(i)(D) would also be included under Sec.  
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 
Sec.  71.45(b)(1)(i)(C) and (D) (that is, when the Family

[[Page 97444]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  71.45(b)(1)(i)(D) or 
it is requested by the Family Caregiver under proposed Sec.  
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 Sec.  71.45(b)(3)(iii)(B), a three-month extension of benefits 
after discharge under proposed Sec.  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 Sec.  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 Sec.  
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 Sec.  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

[[Page 97445]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  71.25(c)(2), so VA proposes to use the same 
language in describing this new basis for discharge in proposed Sec.  
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 
Sec.  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 Sec.  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 Sec.  
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 Sec.  71.45(b)(2)(i)(B) and to include the 
basis for discharge based on death or institutionalization under a new 
Sec.  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, Sec.  71.45(b)(2)(i) 
would state that except as provided in paragraph (f) of Sec.  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 Sec.  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

[[Page 97446]]

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 Sec.  
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 Sec.  71.45(b)(2)(i), VA's regulations (at proposed 
Sec.  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 Sec.  71.45(b)(2)(i) and proposed Sec.  
71.45(b)(2)(i)(A), or an eligible veteran, as set forth in Sec.  
71.45(b)(1)(i)(B), could result in overpayments of benefits to the 
Family Caregiver, which are subject to recoupment pursuant to Sec.  
71.47.
    Proposed new paragraph Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  71.45(a)(2)(iii) 
and discharge under Sec.  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 Sec.  71.45(b)(2)(ii).
    Current Sec.  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 Sec.  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

[[Page 97447]]

paragraph (b)(2)(i) and proposed Sec.  71.45(b)(2)(i)(A) based on 
institutionalization of the Family Caregiver. This would also be 
consistent with current Sec.  71.45(b)(1)(iii) and proposed Sec.  
71.45(b)(1)(iii)(A) based on improvements in an eligible veteran's 
condition, among other reasons under Sec.  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 Sec.  
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 Sec.  71.45(b)(3) and Proposed Opportunity 
for Family Caregiver To Request Rescission
    Current Sec.  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 Sec.  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 Sec.  71.45(b)(3)(iii) sets forth requirements for the 
continuation of caregiver benefits for discharges under paragraph 
(b)(3). More specifically, current Sec.  71.45(b)(3)(iii)(A) explains 
that except as provided in current paragraph (b)(3)(iii)(B) of Sec.  
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 Sec.  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 Sec.  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 
Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  71.45(b)(4) addresses discharge of the Family 
Caregiver if an eligible veteran or their surrogate requests discharge 
of the Family Caregiver. Current Sec.  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 Sec.  
71.45(b)(4)(ii).
    VA proposes to replace the reference to ``30 days'' with ``one 
month'' in Sec.  71.45(b)(4)(iv) consistent with other proposed changes 
in Sec.  71.45. VA's rationale for this change is explained in more 
detail above. VA also proposes to add language to Sec.  71.45(b)(4)(iv) 
to

[[Page 97448]]

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 Sec.  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 Sec.  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 
Sec.  71.45(b)(1)(iii)(B)(1) through (3) under proposed Sec.  
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, Sec.  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 Sec.  71.45 describes how VA addresses instances 
in which there are multiple bases for revocation or discharge. Current 
Sec.  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 
Sec.  71.45 and have his or her designation revoked pursuant to any of 
the criteria in paragraph (a) of Sec.  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 Sec.  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 Sec.  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 Sec.  71.45, 
the Family Caregiver will be discharged pursuant to the paragraph most 
favorable to the Family Caregiver.
    VA proposes to revise Sec.  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, Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  
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 Sec.  71.45(b)(4)(i) or by the Family Caregiver under 
proposed Sec.  71.45(b)(1)(i)(C). With these amendments, if the 
eligible veteran and

[[Page 97449]]

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 Sec.  
71.45(f) are adopted in a final rule. VA expects the proposed revisions 
to Sec.  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 Sec.  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 Sec.  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, Sec.  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 in-person 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 Sec. Sec.  71.25(e), 
71.30, and 71.40(b)(2).
    VA proposes to add Sec.  71.55 to part 71 with the heading, ``Home 
visits and emergency declarations.'' Proposed Sec.  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 in-person 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, Sec.  71.55 would align with the text in Sec.  71.60 
with some changes and additions. First, Sec.  71.60 refers to 
``videoconference or other available telehealth modalities.'' However, 
in proposed Sec.  71.55 VA would refer to telehealth as that term is 
defined in 38 CFR 17.417(a)(4). Per Sec.  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 Sec.  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 Sec.  71.55 would 
authorize use of only those specific modalities, proposed Sec.  71.55 
would not use that term and would instead reference the broader 
definition of telehealth as it is defined in Sec.  17.417(a)(4). 
Although proposed Sec.  71.55 would not specifically reference 
``videoconference'' as Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  71.55 
to account for emergencies with localized impacts

[[Page 97450]]

(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 Sec.  71.55 would apply only 
to those locations covered by the emergency declaration. Additionally, 
proposed Sec.  71.55 would state that the flexibility would be 
authorized ``for the duration of'' the emergency declaration, phrasing 
which in Sec.  71.60 describes the extent of the flexibility 
authorized.
---------------------------------------------------------------------------

    \23\ See, 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-number-01.2023.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).
---------------------------------------------------------------------------

    Although proposed Sec.  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 Sec.  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.
---------------------------------------------------------------------------

    \24\ Compare, 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/wp-content/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'').
    \25\ Compare, 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-%20June%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-for-COVID19.pdf (last visited Feb. 8, 2024) (extending a ``public 
emergency'').
---------------------------------------------------------------------------

    If adopted, VA intends to leverage the flexibilities proposed in 
Sec.  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 Sec.  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 Sec.  
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 Sec.  71.55, the safety or 
public health risk must also impact in-person 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 Sec.  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 Sec.  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 Sec.  71.15 VA proposes to revise the definition of personal 
care services to replace the language ``his or her'' with the word 
``their''. In Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  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

[[Page 97451]]

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.

[[Page 97452]]

     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 x $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 x $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

0
1. The authority citation for part 71 continues to read as follows:

    Authority:  38 U.S.C. 501, 1720G, unless otherwise noted.
* * * * *


Sec.  71.10  [Amended]

0
2. In Sec.  71.10, amend paragraph (b) by removing the language ``as 
that term is defined in 38 U.S.C. 101(20)''.
0
3. Amend Sec.  71.15 by:
0
a. Adding definitions for ``Activity of daily living or activities of 
daily living (ADL)'', ``State'', and ``Typically requires'' in 
alphabetical order.
0
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''.
0
c. Revising the definitions of ``Institutionalization'', ``Joint 
application'', ``Legacy applicant'', ``Legacy participant'', and 
``Serious injury''.
0
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:


Sec.  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.
* * * * *
0
4. Amend Sec.  71.20 by:
0
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''.
0
b. In paragraph (a)(2), removing the language ``or air'' and in its 
place, adding the language ``air, or space''.
0
c. Revising paragraphs (a)(3)(i) and (ii), (a)(7), (b), and (c).
0
d. Adding new paragraph (a)(3)(iii).

[[Page 97453]]

    The revisions and additions read as follows:


Sec.  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.
* * * * *
0
5. Amend Sec.  71.25 by:
0
a. Revising the section heading.
0
b. Adding the words ``Family Caregivers'' after the word ``Primary'' in 
the first sentence of paragraph (a)(1).
0
c. Removing the last sentence of paragraph (a)(1).
0
d. Adding paragraphs (a)(1)(i) and (ii).
0
e. Revising paragraph (a)(2)(i).
0
f. Revising the last sentence of paragraph (a)(2)(ii).
0
g. Revising paragraphs (a)(3)(i) and (ii).
0
h. Revising paragraph (b) introductory text.
0
i. Revising paragraph (b)(2)(ii).
0
j. Adding the information collection control number to the end of the 
section.
    The revisions and additions read as follows:


Sec.  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 Sec.  71.40(c)(4).
    (A) VA will not evaluate a veteran's or servicemember's eligibility 
under Sec.  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 Sec.  71.20(a) or Sec.  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 Sec.  
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 home-care 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 Sec.  71.15 that 
became effective [EFFECTIVE DATE OF FINAL RULE] applies.
    (B) The definition of ``need for supervision, protection, or 
instruction'' in Sec.  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)
0
6. Amend Sec.  71.30 by:
0
a. Revising paragraphs (a), (b), and (c).
0
b. Adding a heading to paragraph (d).
0
c. Revising paragraph (e).
    The revisions and additions read as follows:


Sec.  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 Sec.  
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 Sec.  71.20(a)(3) not more frequently than

[[Page 97454]]

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 Sec.  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 Sec.  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 Sec.  
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 Sec.  71.20(b) or 
(c).
    (2) If the eligible veteran meets the requirements of Sec.  
71.20(a), the legacy reassessment will include consideration of the 
monthly stipend payment under Sec.  71.40(c)(4)(i)(A) and whether the 
Primary Family Caregiver is eligible for a one-time retroactive stipend 
payment pursuant to Sec.  71.40(c)(4)(iii).
0
7. Amend Sec.  71.40 by:
0
a. Adding a heading to paragraph (c)(4)(i)(A)(1).
0
b. Revising paragraph (c)(4)(i)(A)(2).
0
c. Revising the first sentence of paragraphs (c)(4)(i)(B) introductory 
text, (c)(4)(i)(C), and (c)(4)(i)(D).
0
d. Revising paragraph (c)(4)(ii)(A).
0
e. Adding headings to paragraphs (c)(4)(ii)(B) and (C) introductory 
text.
0
f. Revising paragraphs (c)(4)(ii)(C)(1) and (2), and the note to 
paragraph (c)(4)(ii)(C)(2).
0
g. Adding a heading to paragraph (c)(4)(ii)(D).
0
h. Redesignating paragraphs (c)(4)(iii) and (iv) as paragraphs 
(c)(4)(iv) and (v).
0
i. Adding new paragraph (c)(4)(iii).
    The revisions and additions read as follows:


Sec.  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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  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

[[Page 97455]]

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 Sec.  
71.20(b) or (c) is determined, pursuant to a reassessment conducted 
by VA under Sec.  71.30, to not meet the requirements of Sec.  
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 Sec.  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 Sec.  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 Sec.  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.
* * * * *
0
8. Amend Sec.  71.45 by:
0
a. Adding paragraphs (a)(1)(iv) and (a)(2)(v).
0
b. Revising the first sentence in paragraph (a)(3).
0
c. Revising paragraphs (b)(1)(i).
0
d. Revising paragraph (b)(1)(ii)(B)(2).
0
e. Adding paragraphs (b)(1)(ii)(C) and (D).
0
f. Revising paragraph (b)(1)(iii).
0
g. Revising paragraphs (b)(2)(i) through (iii).
0
h. In paragraph (b)(3)(i), removing the language ``his or her'' and 
adding in its place the language ``their''.
0
i. Adding a note to paragraph (b)(3)(i).
0
j. Revising paragraph (b)(3)(iii).
0
k. Adding paragraph (b)(3)(iv).
0
l. Revising paragraphs (b)(4)(iv), and (f).
    The revisions and additions read as follows:


Sec.  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,

[[Page 97456]]

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 Sec.  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.
0
9. Add Sec.  71.55 to read as follows:


Sec.  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:

[[Page 97457]]

    (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.

[FR Doc. 2024-28079 Filed 12-5-24; 8:45 am]
BILLING CODE 8320-01-P`