Federal Register / Vol. 80, No. 6 / Friday, January 9, 2015 / Rules and Regulations 1357 

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Dated: December 17, 2014. 

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Office. 

[FR Doc. 2015–00061 Filed 1–8–15; 8:45 am] 

BILLING CODE 3510–16–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 17 and 71 

RIN 2900–AN94 

Caregivers Program 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) adopts, with changes, the 

interim final rule concerning VA’s 

Program of Comprehensive Assistance 

for Family Caregivers. VA administers 

this program to provide certain medical, 

travel, training, and financial benefits to 

caregivers of certain veterans and 

servicemembers who were seriously 

injured during service on or after 

September 11, 2001. Also addressed in 

this rulemaking is the Program of 

General Caregiver Support Services that 

provides support services to caregivers 

of veterans from all eras who are 

enrolled in the VA health care system. 

Specifically, changes in this final rule 

include a requirement that Veterans be 

notified in writing should a Family 

Caregiver request revocation (to no 

longer be a Family Caregiver), an 

extension of the application timeframe 

from 30 days to 45 days for a Family 

Caregiver, and a change in the stipend 

calculation to ensure that Primary 

Family Caregivers do not experience 

unexpected decreases in stipend 

amounts from year to year. 

DATES: Effective Date: This rule is 

effective on January 9, 2015. 

FOR FURTHER INFORMATION CONTACT: 

Michael Kilmer, Chief Consultant, 

Veterans Health Administration, 810 

Vermont Avenue, Washington, DC 

20420, 202–461–6780. (This is not a 

toll-free number.) 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

I. Purpose of the Final Rule 

This final rule continues to 

implement title I of the Caregivers and 

Veterans Omnibus Health Services Act 

of 2010, Public Law 111–163, which 

was signed into law on May 5, 2010. VA 

has been administering the benefits 

program under this law continuously 

since May 5, 2011, under an interim 

final rule published in the Federal 

Register (76 FR 26148) as well as part 

71 of title 38, Code of Federal 

Regulations (CFR). The purpose of the 

benefits program under this law is to 

provide certain medical, travel, training, 

and financial benefits to caregivers of 

certain veterans and servicemembers 

who were seriously injured in the line 

of duty on or after September 11, 2001. 

Among other things, title I of the law 

established 38 U.S.C. 1720G, which 

requires VA to ‘‘establish a program of 

comprehensive assistance for family 

caregivers of eligible veterans,’’ as well 

as a program of ‘‘general caregiver 

support services’’ for caregivers of 

‘‘veterans who are enrolled in the health 

care system established under [38 U.S.C. 

1705(a)] (including caregivers who do 

not reside with such veterans).’’ 38 

U.S.C. 1720G(a), (b). 

II. Major Provisions 

VA distinguishes between three types 

of caregivers based on the requirements 

of the law: Primary Family Caregivers, 

Secondary Family Caregivers, and 

General Caregivers. A Primary Family 

Caregiver is an individual designated as 

a ‘‘primary provider of personal care 

services’’ for the eligible veteran under 

38 U.S.C. 1720G(a)(7)(A), who the 

veteran specifies on the joint 

application and is approved by VA as 

the primary provider of personal care 

services for the veteran. A Secondary 

Family Caregiver is an individual 

approved as a ‘‘provider of personal care 

services’’ for the eligible veteran under 

38 U.S.C. 1720G(a)(6)(B), and generally 

serves as a back-up to the Primary 

Family Caregiver. General Caregivers are 

‘‘caregivers of covered veterans’’ under 

the program in 38 U.S.C. 1720G(b), and 

provide personal care services to 

covered veterans, but do not meet the 

criteria for designation or approval as a 

Primary or Secondary Family Caregiver. 

In general, caregivers receive the 

following benefits and services: 

• General Caregivers—Education and 

training on caring for an enrolled 

Veteran; use of telehealth technologies; 

counseling and other services under 

§ 71.50; and respite care. 

• Secondary Family Caregivers—All 

benefits and services available to 

General Caregivers; monitoring; veteranspecific instruction and training; 

beneficiary travel under 38 CFR part 70; 

ongoing technical support; and 

counseling. 

• Primary Family Caregivers—All 

benefits and services available to both 

General Caregivers and Secondary 

Family Caregivers; monthly caregiver 

stipend; respite care available for at 

least 30 days per year, and may exceed 

30 days per year if clinically appropriate 

and if requested by the Primary Family 

Caregiver; and health care coverage (if 

they are eligible). 

Some of these benefits are delivered 

directly to veterans, such as monitoring 

the quality of the care provided by 

caregivers to ensure that the veteran is 

able to live in a residential setting 

without unnecessary deterioration of his 

or her disability, and safe from potential 

abuse or neglect. Other benefits are 

delivered directly to the veteran’s 

caregiver, such as a stipend or 

enrollment in the Civilian Health and 

Medical Program of the Department of 

Veterans Affairs (CHAMPVA), which 

provides health coverage for certain 

Primary Family Caregivers. The fact that 

caregiver benefits are offered and 

delivered to both the veteran and his or 

her caregiver makes the benefits 

significantly different from virtually all 

other benefits programs offered through 

the Veterans Health Administration. 

III. Costs and Benefits 

Summary of Costs of the Caregiver 

Program for FY2015 Through FY2017 

In developing the Regulatory Impact 

Analysis (RIA) for this final rule, VA did 

consider different alternative 

approaches on how best to regulate the 

statutory provisions of the law. More 

specifically, VA changed the formula 

and methodology to compute the 

caregiver stipend rate from the interim 

final rule. Individuals designated as the 

eligible Veteran’s primary family 

caregiver are eligible to receive a 

monthly stipend from VA as an 


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acknowledgement of the sacrifices they 

make to care for seriously injured 

eligible Veterans. The monthly stipend 

is not intended to replace career 

earnings or be construed to create an 

employment relationship between VA 

and caregivers. Family caregivers report 

that the stipend is the cornerstone of the 

Program of Comprehensive Assistance 

for Family Caregivers. The stipend helps 

to alleviate financial distress 

experienced by many primary family 

caregivers. 

VA never intended that Primary 

Family Caregivers should be subject to 

decreased stipend payments from year 

to year. Therefore, upon drafting the 

final rule and final RIA, VA changed the 

stipend calculation to use the most 

recent data from the BLS on hourly 

wage rates for home health aides as well 

as the most recent CPI–U, unless using 

this most recent data for a geographic 

area would result in an overall BLS and 

CPI–U combined rate that is lower than 

that applied in the previous year for the 

same geographic area, in which case the 

BLS hourly wage rate and CPI–U that 

was applied in the previous year for that 

geographic area will be utilized to 

calculate the Primary Family Caregiver 

stipend. This revision ensures that 

Primary Family Caregivers will not 

unexpectedly lose monetary assistance 

upon which they had come to rely. VA 

started applying the new stipend 

calculation on January 1, 2013 under the 

auspices of the interim final rule being 

finalized with this rulemaking. 

The total costs associated with this 

final rulemaking, including the stipend, 

are estimated to be $477.0 million in 

FY2015 and $1.67 billion over a three 

year period. Estimated costs and revised 

projections are based on actual 

caseloads, actual obligations and 

historical trends/data since 

implementation of the Caregiver 

Program (July 2011) and through 

FY2014. For more specific costing 

information, VA’s full RIA can be found 

as a supporting document at http://

www.regulations.gov, usually within 48 

hours after the final rulemaking 

document is published. Additionally, a 

copy of this final rulemaking and the 

RIA are available on VA’s Web site at 

http://www1.va.gov/orpm/, by following 

the link for ‘‘VA Regulations 

Published.’’ 

On May 5, 2011, VA published in the 

Federal Register (76 FR 26148) an 

interim final rule to implement title I of 

the Caregivers and Veterans Omnibus 

Health Services Act of 2010 (the 

Caregivers Act), Public Law 111–163, 

codified at 38 U.S.C. 1720G and in other 

sections of title 38, U.S.C. Interested 

persons were invited to submit 

comments on or before July 5, 2011, and 

we received 12 comments. All of the 

issues raised by the commenters that 

opposed at least one portion of the rule 

can be grouped together by similar 

topic, and we have organized our 

discussion of the comments 

accordingly. Based on the rationale set 

forth in the interim final rule and in this 

document, VA is adopting the 

provisions of the interim final rule, 

including the Part 17 amendment, as a 

final rule except as amended herein. 

Distinguishing Levels of Assistance 

Provided, and To Whom, Under This 

Rule 

To ensure that the varying levels of 

assistance and accompanying eligibility 

criteria under the rule are appropriately 

distinguished, we amend § 71.10(a) to 

refer to the ‘‘Program of Comprehensive 

Assistance for Family Caregivers’’ where 

eligibility and assistance of both 

Primary and Secondary Family 

Caregivers are concerned, and to refer to 

the ‘‘Program of General Caregiver 

Support Services’’ where eligibility and 

support services for General Caregivers 

are concerned. This is consistent with 

the manner in which these two 

programs are distinguished in 38 U.S.C. 

1720G(a) and (b). We similarly amend 

§ 71.10(b) to refer to ‘‘Family Caregiver 

benefits’’ and ‘‘General Caregiver 

benefits’’ authorized by 38 U.S.C. 

1720G, and amend the definition of ‘‘in 

the best interest’’ in § 71.15 to refer to 

the ‘‘Program of Comprehensive 

Assistance for Family Caregivers,’’ 

instead of to the ‘‘Family Caregiver 

program.’’ We also revise the rule in 

multiple places to refer to ‘‘caregiver’’ as 

opposed to ‘‘Caregiver’’ for consistency 

in capitalization throughout Part 71. 

These amendments do not create any 

substantive changes in the application 

of any of the rule’s provisions. 

Throughout this rulemaking, we refer to 

‘‘Family Caregivers’’ as those 

individuals who may be provided 

‘‘Family Caregiver benefits’’ through the 

‘‘Program of Comprehensive Assistance 

for Family Caregivers,’’ and refer to 

‘‘General Caregivers’’ as those 

individuals who may be provided 

‘‘General Caregiver benefits’’ through 

the ‘‘Program of General Caregiver 

Support Services.’’ 

Additionally, we clarify that ‘‘eligible 

veteran’’ by definition under § 71.15 

includes both a veteran and a 

servicemember who meet the eligibility 

criteria in § 71.20, and have amended 

the regulations to ensure that the phrase 

‘‘eligible veteran’’ is used to refer to 

both veterans and servicemembers in 

any context in which eligibility under 

§ 71.20 has been established, and that 

the terms ‘‘veterans’’ and 

‘‘servicemembers’’ are used separately 

in any context in which eligibility under 

§ 71.20 has not been established. 

Similarly, in the definition of ‘‘primary 

care team’’ we amend the reference to 

‘‘veteran’’ to instead refer to ‘‘patient’’ 

for consistency throughout the 

definition. These amendments do not 

create any substantive changes in the 

application of any of the rule’s 

provisions, and are made to §§ 71.15, 

and 71.45(b) and (b)(3). 

Expanding Eligibility to Veterans Who 

Served Before September 11, 2001 

Multiple commenters argued that 

eligibility for Family Caregiver benefits 

should be extended to veterans who 

served before September 11, 2001 (‘‘pre9/11 veterans’’). The commenters 

asserted that pre- and post-9/11 veterans 

may require the same levels of personal 

care based on equally serious injuries, 

and that dates of service should 

therefore not dictate the level of benefits 

and services available. The eligibility 

distinction between pre-and post-9/11 

veterans was mandated by Congress in 

section 1720G, and we lack authority to 

make the change suggested by these 

comments. See 38 U.S.C. 1720G(a)(2)(B). 

Commenters emphasized that VA 

should comply with the Caregivers Act’s 

reporting requirements on the feasibility 

and advisability of expanding Family 

Caregiver benefits to caregivers of pre-9/ 

11 veterans. See Pub. L. 111–163, title 

I, section 101(d)(1). VA has complied 

with these reporting requirements, and 

on September 4, 2013, transmitted the 

Secretary’s recommendations to the 

Committee on Veterans’ Affairs of the 

Senate and the Committee on Veterans’ 

Affairs of the House of Representatives. 

We note that any pre-9/11 veterans who 

are enrolled in the VA health care 

system, and those veterans’ caregivers, 

are eligible to receive benefits and 

services that are available for General 

Caregivers, pursuant to §§ 71.30 and 

71.40(a). General Caregiver benefits 

include: instruction, preparation, 

training, and technical support under 

§ 71.40(a)(1); counseling and other 

services described under § 71.50; and 

respite care for a qualified veteran under 

§ 71.40(a)(4). No application or clinical 

evaluation is required to obtain General 

Caregiver benefits. See 38 CFR 71.30(c). 

Causal Link Between a Serious Injury 

and the Need for Personal Care Services 

Family Caregiver eligibility is 

predicated, under § 71.20(c), on the 

veteran or servicemember having a 

‘‘serious injury [incurred or aggravated 

in the line of duty that] renders the 

individual in need of personal care 


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Federal Register / Vol. 80, No. 6 / Friday, January 9, 2015 / Rules and Regulations 1359 

services.’’ The definition of ‘‘serious 

injury’’ in § 71.15 similarly requires that 

the injury render the individual in need 

of personal care services. Commenters 

argued that this causal link is too 

restrictive because they assert that it 

excludes from eligibility an individual 

who needs personal care services 

because of an in-service injury that 

worsens after separation from service, or 

because of a condition that is secondary 

to a serious injury. To address these 

comments, we will discuss and clarify 

the meaning and effect of § 71.20(c); 

however, no changes to the rule are 

required. 

Generally, we clarify that under 

§ 71.20(c) a veteran or servicemember 

could qualify for Family Caregiver 

benefits if the veteran or servicemember 

incurred or aggravated a serious injury 

in the line of duty, even if the need for 

a Family Caregiver developed due to a 

worsening of that serious injury after 

separation from service, as long as all 

other § 71.20 criteria are met. Section 

71.20 requires that a serious injury 

‘‘renders the individual in need of 

personal care services,’’ but does not 

require that the injury must have 

rendered the veteran or servicemember 

in need of personal care services at the 

time of discharge. Therefore, VA does 

not and will not apply the rule in such 

a restrictive manner. However, we do 

not believe the definition of ‘‘serious 

injury’’ may be expanded to include 

injuries that are secondary to a serious 

injury incurred or aggravated in the line 

of duty, unless the need for personal 

care services caused by the secondary 

injury is proximately due to or the result 

of the serious injury incurred or 

aggravated in the line of duty. In the 

following discussion, we respond to 

specific examples provided by 

commenters concerning serious injuries 

incurred or aggravated in the line of 

duty that worsen or create a worsening 

of a condition after discharge from 

service, which the commenters believed 

should be considered qualifying serious 

injuries. We additionally respond to 

specific examples of injuries that are 

secondary to the serious injury incurred 

or aggravated in the line of duty, which 

commenters also believed should be 

considered qualifying serious injuries. 

Commenters provided as examples 

variations of a scenario concerning an 

individual who sustained fragment 

wounds in the line of duty that did not 

create the need for personal care 

services on or before the date that the 

individual was discharged from active 

military service. After separation from 

service, however, the individual began 

to experience worsening of a condition, 

as a result of remaining imbedded 

fragments, that created the need for 

personal care services. 

In one commenter’s scenario, for 

example, the remaining imbedded 

fragments began to leach toxins inside 

the individual’s body, and those toxins 

then caused a worsening of condition 

that created the need for personal care 

services. Such an individual would 

likely meet the criteria in § 71.20(c) 

because the fragment injury was a 

serious injury incurred in the line of 

duty, and this same serious injury 

created a worsening of the condition to 

render the individual in need of 

personal care services. As clarified 

above, this scenario fits within the 

criteria of § 71.20(c) because the need 

for personal care services may have 

developed post-discharge, but the 

serious injury that created the need for 

personal care services was still incurred 

or aggravated in the line of duty. 

Another example provided by 

commenters described a scenario where 

an individual with the same type of 

fragment injury underwent surgery after 

separation from service to remove 

remaining imbedded fragments, but the 

effects of the surgery created the need 

for personal care services. This scenario 

is more complex, because the surgery 

created a secondary injury that lead to 

the need for personal care services. A 

scenario such as this requires a 

determination of whether the need for 

personal care services, which was 

created by the surgery after service, was 

proximately due to or the result of the 

fragment injury incurred in the line of 

duty. If the surgery was medically 

necessary because of the fragment 

injury, and the need for personal care 

services was, therefore, proximately due 

to or the result of the serious injury 

sustained by the fragments, the veteran 

could meet the § 71.20(c) criteria. 

However, if surgery to remove such 

fragments was not medically necessary 

because of the fragment injury, we do 

not believe it would be as clear that the 

need for personal care services was 

proximately due to or the result of the 

fragment injury. A clinical assessment 

would have to be completed to 

determine whether it was the veteran’s 

or servicemember’s injury incurred in 

the line of duty that rendered him or her 

in need of personal care services, or 

whether the surgery caused a separate 

post-service injury without which the 

veteran or servicemember would not 

require personal care services. In 

addition, we distinguish the situation 

where the need for personal care 

services may be the result of a clinical 

provider’s negligence in treating the 

qualifying serious injury. While we do 

not anticipate many of these cases 

occurring, we make this distinction 

because in one commenter’s example a 

‘‘mishap’’ occurred during surgery to 

remove imbedded fragments, which 

created the need for personal care 

services. Congress and VA did not 

design the Program of Comprehensive 

Assistance for Family Caregivers to 

provide benefits to a Family Caregiver 

based on a post-service injury, caused 

by a provider’s negligence or other 

reasons that are not the direct result of 

the qualifying serious injury. Moreover, 

if a veteran underwent negligent 

surgery, either at a VA medical facility 

or from a private medical provider, 

there are other remedies designed to 

provide compensation to the veteran, 

such as a tort action or an award under 

38 U.S.C. 1151 (benefits for disability or 

death that results from VA hospital care, 

medical or surgical treatment or 

examination). 

One commenter provided a final 

example of a veteran who lost a leg 

during service, and after separation from 

service experienced a bad fall due to 

loss of balance. This bad fall resulted in 

a severe head injury, and the effects of 

the head injury, in turn, created the 

need for personal care services. It is 

similarly unclear in this example 

whether the need for personal care 

services was proximately due to or the 

result of the veteran’s serious injury 

incurred in the line of duty, the loss of 

the leg. In this example as well, a 

clinical assessment would have to be 

completed to determine whether the 

veteran’s loss of a leg rendered him or 

her in need of personal care services 

related to the head injury, or whether 

the head injury was a separate postservice injury without which the 

veteran would not require personal care 

services. We note that the veteran in this 

example could be eligible for caregiver 

benefits based on the personal care 

services that may be needed due to the 

loss of the leg, regardless of eligibility 

determinations concerning the fall and 

resulting need for personal care services 

due to the head injury. 

We emphasize that addressing the 

specific examples from commenters 

with regards to the causal link in 

§ 71.20(b)–(c) is intended to illustrate 

our general rationale, and that this 

discussion does not encompass all 

possible scenarios where a veteran with 

a qualifying serious injury may suffer a 

worsening of that injury after separation 

from service that, in turn, creates the 

need for personal care services. Nor 

does this discussion establish a required 

determination for or against a particular 

individual’s eligibility for a Family 

Caregiver based on an injury that is 

secondary to a qualifying serious injury. 


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We stress that all individuals are 

independently assessed by a clinical 

team to determine eligibility for 

benefits, and reiterate that generally a 

veteran or servicemember could qualify 

for Family Caregiver benefits if the 

veteran or servicemember incurred or 

aggravated a serious injury in the line of 

duty, even if the need for a Family 

Caregiver developed after separation 

from service, as long as all other § 71.20 

criteria are met. 

Inclusion of the Term ‘‘Illness’’ in the 

Definition of ‘‘Serious Injury’’ 

Under § 71.15, a serious injury is 

defined as ‘‘any injury, including 

traumatic brain injury, psychological 

trauma, or other mental disorder, 

incurred or aggravated in the line of 

duty in the active military, naval, or air 

service on or after September 11, 2001, 

that renders the veteran or 

servicemember in need of personal care 

services.’’ Multiple commenters asserted 

that VA’s definition of ‘‘serious injury’’ 

should be expanded to refer to and 

include the term ‘‘illness’’ (or variations 

of such term) for multiple reasons. We 

do not make any changes to refer to or 

include the term ‘‘illness,’’ as explained 

below. 

First, commenters asserted that 

Congress intended ‘‘illness’’ to be 

considered as a qualifying criterion. 

However, the definition of ‘‘serious 

injury’’ is a virtually verbatim recitation 

of section 1720G(a)(2)(B) and the 

requirement in section 1720G(a)(2)(C) 

that the individual be ‘‘in need of 

personal care services.’’ Because section 

1720G does not define the term ‘‘serious 

injury’’ to include illness, and the term 

‘‘illness’’ does not appear elsewhere in 

title I of the Caregivers Act, we do not 

expand our definition of serious injury 

to include ‘‘illness.’’ 

Commenters provided examples of 

legislative history that they believe 

supports the assertion that Congress 

intended that ‘‘illness’’ should be 

considered in relation to eligibility for 

Family Caregiver assistance. We 

disagree with these interpretations of 

the legislative history. First, 

commenters correctly stated that the 

Caregiver Assistance and Resource 

Enhancement Act, H.R. 3155, 111th 

Congress, 1st Session (2009), as reported 

in the House of Representatives, would 

have established a program to provide 

specific caregiver benefits for certain 

disabled or ill veterans (certain veterans 

deemed to have a ‘‘service-connected 

disability or illness that is severe’’). 

While H.R. 3155 was engrossed by the 

House of Representatives, the bill was 

never considered by the Senate and 

consequently it failed to pass both 

houses of Congress. Instead, Congress 

enacted S. 1963, 111th Congress (2009), 

which specifically did not include the 

term ‘‘illness’’ in relation to eligibility 

for caregiver assistance and support 

services. We do not believe that the 

legislative history of a bill that did not 

pass must be used to inform the text of 

a bill that actually did pass, particularly 

when the text of both bills differed 

significantly—in particular, on the very 

point that the commenters wish to 

prove. 

Multiple commenters cited the 

Explanatory Statement (joint statement) 

that accompanied the Caregivers Act to 

indicate that Congress intended that 

‘‘illness’’ be considered in relation to 

eligibility for Family Caregiver 

assistance. See 156 Cong. Rec. S2566, 

S2567 (2010). Essentially, these 

commenters asserted that the joint 

statement indicates Congress’ intent that 

the Program of Comprehensive 

Assistance for Family Caregivers should 

account for ‘‘ill’’ as well as ‘‘injured’’ 

veterans because that statement cited a 

Center for Naval Analyses report that 

considered the economic impact on 

caregivers of the seriously ill as well as 

seriously injured veterans. We disagree 

that the mere reference to a report that 

considered a broader cohort of ‘‘ill’’ 

individuals necessitates a more 

expansive interpretation of the narrower 

cohort of ‘‘injured’’ individuals actually 

described in the law passed by 

Congress. Moreover, the joint statement 

explains that the Caregivers Act will 

limit participation in the Program of 

Comprehensive Assistance for Family 

Caregivers ‘‘only to ‘seriously injured or 

very seriously injured’ veterans.’’ 156 

Cong. Rec. S2567. Thus, the joint 

statement clearly expresses Congress’ 

intent, under the Caregivers Act, to 

consider only seriously ‘‘injured’’ 

veterans as eligible for the Program of 

Comprehensive Assistance for Family 

Caregivers. 

The joint statement explains that the 

House of Representatives and Senate 

versions of the caregiver program 

legislation were considered prior to 

enactment of the Caregivers Act. As 

explained in the joint statement, the 

House version’s eligibility criteria 

accounted for ‘‘OEF [Operation 

Enduring Freedom] or OIF [Operation 

Iraqi Freedom] veterans . . . who have 

a service-connected disability or illness 

that is severe.’’ Id. However, the joint 

statement goes on to explain that the 

Senate bill’s eligibility criteria, which 

do not account for veterans with a 

serious illness, will be reflected in the 

Caregivers Act. Id. ‘‘[W]here the 

language under question was rejected by 

the legislature and thus not contained in 

the statute it provides an indication that 

the legislature did not want the issue 

considered.’’ 2A Norman J. Singer, 

Sutherland Statutory Construction, 

section 48:04 (6th ed. 2000). Because it 

is clearly the Senate bill’s eligibility 

criteria that became law, we do not 

agree with the commenters that VA 

must include ‘‘illness’’ in the definition 

of serious injury. 

Commenters also stated that 

considering ‘‘illness’’ within the 

definition of ‘‘serious injury’’ is 

necessary to ensure consistency with 

other Federal government programs for 

recovering veterans and servicemembers 

which contemplate ‘‘illness’’ as a basis 

for eligibility. Examples of such 

programs, as provided by commenters, 

included the program of monetary 

compensation for certain 

servicemembers provided by DoD under 

37 U.S.C. 439, and the Federal Recovery 

Coordination Program (FRCP). We make 

no changes based on these comments, as 

we do not believe that these other 

programs are comparable, nor are they 

intended to be comparable, to the 

Program of Comprehensive Assistance 

for Family Caregivers. 

The monetary compensation offered 

by DoD under 37 U.S.C. 439, unlike the 

Program of Comprehensive Assistance 

for Family Caregivers, does not provide 

mental health services, healthcare, or a 

monthly stipend for eligible Family 

Caregivers. Instead, DoD pays ‘‘monthly 

special compensation’’ directly to 

qualifying servicemembers. Moreover, 

DoD’s eligibility criteria are more 

stringent than the criteria in the 

Program of Comprehensive Assistance 

for Family Caregivers. An eligible 

individual under section 439 must have 

a ‘‘catastrophic’’ injury or illness, be 

certified by a licensed physician to be 

in need of assistance from another 

person, and in the absence of such 

assistance must require 

‘‘hospitalization, nursing home care, or 

other residential institutional care.’’ 37 

U.S.C. 439(b). 

Similarly, the FRCP functions very 

differently than the Program of 

Comprehensive Assistance for Family 

Caregivers. The FRCP provides 

oversight and coordination of clinical 

and non-clinical care for eligible 

severely wounded, ill, or injured 

servicemembers and veterans through 

recovery, rehabilitation, and 

reintegration into their home 

community, while Family Caregiver 

benefits are intended to provide support 

and assistance to designated and 

approved Family Caregivers to enhance 

the health and well-being of eligible 

veterans participating in the Program of 


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Comprehensive Assistance for Family 

Caregivers. 

Based on the differences between the 

Program of Comprehensive Assistance 

for Family Caregivers and the programs 

discussed by the commenters, we do not 

agree that the rule should be amended 

to match or bridge perceived gaps with 

other Federal government programs. 

Multiple commenters asserted that 

historical remarks in news releases 

quote the Secretary of Veterans Affairs 

(Secretary) as being in support of 

including ‘‘illness’’ within the 

definition of ‘‘serious injury.’’ 

Specifically, commenters submitted that 

subsequent to the passing of the 

Caregivers Act, the Secretary stated in a 

press release dated February 9, 2011, 

that ‘‘[c]aregivers make tremendous 

sacrifices every day to help Veterans of 

all eras who served this nation. . . . 

They are critical partners with VA in the 

recovery and comfort of ill and injured 

Veterans, and they deserve our 

continued training, support and 

gratitude.’’ In this statement, the 

Secretary was referring to caregivers for 

all era veterans, including those pre-9/ 

11 veterans who can receive General 

Caregiver benefits under § 71.30, which 

covers any ‘‘veteran who is enrolled in 

the VA health care system and needs 

personal care services because the 

veteran . . . [i]s unable to perform an 

activity of daily living; or . . . [n]eeds 

supervision or protection based on . . . 

impairment or injury.’’ The effects of 

illness may be considered in 

determining eligibility for General 

Caregivers benefits because the ‘‘serious 

injury’’ requirement is not applicable to 

§ 71.30. 

One commenter asserted that section 

1720G allows for flexibility to include 

the term ‘‘illness’’ in our definition of 

serious injury, because section 

1720G(a)(2)(C)(ii) includes the phrase 

‘‘or other impairment.’’ See 38 U.S.C. 

1720G(a)(2)(C)(i)–(iii) (which premises 

eligibility on the individual being in 

need of personal care services because 

the individual is unable ‘‘to perform one 

or more activities of daily living;’’ has 

a ‘‘need for supervision or protection 

based on symptoms or residuals of 

neurological or other impairment or 

injury;’’ or ‘‘such other matters as the 

Secretary considers appropriate.’’). 

Although the criteria in section 

1720G(a)(2)(C)(i)–(iii), to include the 

phrase ‘‘or other impairment,’’ all 

explain the circumstances for which 

personal care services may be needed, 

these criteria do not define the 

underlying ‘‘serious injury’’ term or the 

separate eligibility requirement that the 

individual have a serious injury. We 

therefore disagree that section 

1720G(a)(2)(C)(ii) permits the 

discretionary inclusion of ‘‘illness’’ in 

the rule. 

Lastly, one commenter argued that VA 

generally does not differentiate between 

injury and illness as a basis of eligibility 

for VA benefits, and that the Program of 

Comprehensive Assistance for Family 

Caregivers should similarly not make 

such a distinction. In support of this 

contention, the commenter cited 

multiple VA regulations primarily 

related to disability compensation, 

where eligibility for benefits is based on 

both injury and a disease process or 

illness, and further stated that ‘‘[t]he 

caregiver provisions should be 

interpreted in harmony with the general 

principle established in the statutory 

scheme, that veterans with a qualifying 

disability are entitled to benefits 

whether such disability resulted from an 

injury or an illness.’’ We do not agree 

with the commenter that the statutory 

scheme that supports these other VA 

regulations may be used to interpret the 

eligibility criteria for the Program of 

Comprehensive Assistance for Family 

Caregivers for several reasons. 

First, the interpretive relevance of any 

seemingly related statute is outweighed 

when the subject statute’s meaning is 

clear: ‘‘[I]n line with the basic rule on 

the use of extrinsic aids, other statutes 

may not be resorted to if the statute is 

clear and unambiguous.’’ 2B Norman J. 

Singer, Sutherland Statutory 

Construction, section 51:01 (6th ed. 

2000). As stated previously, section 

1720G is clear that ‘‘illness’’ is not 

considered in relation to eligibility 

under the Program of Comprehensive 

Assistance for Family Caregivers. 

Second, the stipend provided to a 

caregiver under section 1720G is not 

disability compensation, and is not 

related to VA’s disability compensation 

regulations. The stipend is paid directly 

to the Family Caregiver and not the 

veteran, and is calculated based on the 

degree of assistance required by the 

veteran, and not the veteran’s rated level 

of disability. Disability compensation 

schedules are designed to measure the 

effect of disease or injury on a veteran’s 

earning capacity, and not the level of 

personal care services needed by a 

veteran. 

Finally, Congress could easily have 

linked the Family Caregiver stipend to 

VA disability compensation; however, 

section 1720G mandates that VA create 

a program that is distinct from virtually 

all other VA benefits programs. In turn, 

the regulations implementing the 

stipend payments under the Program of 

Comprehensive Assistance for Family 

Caregivers were specifically established 

to meet the goals of the statute 

governing the Program of 

Comprehensive Assistance for Family 

Caregivers. As such, the Family 

Caregiver stipend is designed to enable 

caregivers to provide certain homebased care—it is not designed to 

supplement, replace, or be dependent in 

any manner on the level of disability 

compensation received by the veteran. 

Use of Global Assessment of 

Functioning (GAF) Score as an 

Eligibility Criterion 

Multiple commenters argued for the 

revision or removal of § 71.20(c)(3), 

which authorizes eligibility for Family 

Caregiver benefits on the basis that an 

individual requires personal care 

services because of a ‘‘[p]sychological 

trauma or a mental disorder that has 

been scored . . . with Global 

Assessment of Functioning (GAF) test 

scores of 30 or less, continuously during 

the 90-day period immediately 

preceding the date on which VA 

initially received the caregiver 

application.’’ Commenters interpreted 

this GAF criterion to be the sole means 

of eligibility for an individual with a 

psychological trauma or mental health 

disorder, and subsequently asserted that 

such a criterion was arbitrary and too 

restrictive. We do not make any changes 

to the rule based on these comments; 

however, we clarify that the GAF score 

criterion in § 71.20(c)(3) is not the sole 

means to establish eligibility based on a 

psychological trauma or mental health 

disorder. We do not intend, and the rule 

does not state, that any psychological 

trauma or mental disorder must have an 

accompanying GAF score of 30 or less 

in order to qualify as a serious injury. 

In providing the bases upon which an 

individual may require personal care 

services to establish eligibility, the rule 

states in § 71.20(c) that ‘‘any one of the 

following clinical criteria’’ may suffice, 

to include a GAF score of 30 or below 

in § 71.20(c)(3). The GAF score criterion 

is not a sole eligibility basis for 

individuals with mental disorders, but 

rather an irrebuttable basis for eligibility 

under § 71.20(c) when an individual 

presents with a psychological trauma or 

mental disorder that meets the GAF 

score requirement. A veteran or 

servicemember with a mental health 

disorder that does not meet the 

requirements of § 71.20(c)(3) could still 

qualify under § 71.20(b)–(c) if that 

mental disorder is a serious injury that 

renders the individual in need of 

personal care services because of any of 

the other eligibility criteria in 

§ 71.20(c)(1), (c)(2), or (c)(4). For 

instance, if an individual with a 

psychological trauma or mental disorder 

requires supervision or protection due 


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to such trauma or disorder, an 

assessment of their application may 

show they are eligible under 

§ 71.20(c)(2), and that same individual 

will not then be required to submit a 

GAF score due to their injury being 

related to mental health. Rather than 

being an undue restriction, we consider 

the GAF score criterion in § 71.20(c)(3) 

in fact to be an expansion of the 

statutory bases of eligibility, permissible 

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

Commenters stated that the 

requirement that the GAF score be 

continuous for 90 days would 

necessitate undue repeated testing 

during the 90-day period, and that the 

90-day requirement was too lengthy and 

would result in an unreasonable delay 

of benefits. We do not make any changes 

to the rule based on these comments, 

because VA does not intend to 

continuously test veterans during the 

90-day period in an effort to rebut a 

GAF score of 30 or less. Additionally, 90 

days is a reasonable and necessary 

timeframe to determine if an 

impairment is non-episodic to 

necessitate Family Caregiver benefits. 

As the rule states, if there is a GAF score 

of 30 or less at the beginning of the 90- 

day period as well as a score of 30 or 

less at the end of that period, we will 

apply § 71.20(c)(3) unless there is an 

intervening GAF score of more than 30 

for veterans or servicemembers seeking 

to qualify for the program on this basis. 

Typically, GAF tests are administered 

and GAF scores are recorded at 

appropriate clinical intervals during the 

provision of care. Two GAF scores 

below 30 that are 90 days apart provides 

a sound basis to clinically determine 

that the servicemember’s or veteran’s 

injury and need for a Family Caregiver 

is chronic and not episodic in nature, or 

that the injury is not responsive to 

treatment such that the assistance of a 

Family Caregiver is required. How many 

other GAF scores might be present in 

the medical record to be considered 

intervening could depend on multiple 

individual factors. However, GAF tests 

will not be initiated by VA to develop 

evidence to rebut the servicemember’s 

or veteran’s need for a Family Caregiver. 

We further disagree with some 

commenters’ statements that a GAF 

score range of 30 or less, if used as an 

eligibility criterion in the rule, is too 

restrictive. Commenters argued that the 

range should be higher, including 

commenters who advocated for scores of 

up to 50. One commenter noted that a 

score range of 31–40 should be used 

because it indicates ‘‘some impairment 

in reality testing or communication,’’ or 

also indicates ‘‘major impairment in 

several areas, such as work or school, 

family relations, judgment, thinking or 

mood.’’ However, we reiterate from the 

interim final rule that we find the 

description for a GAF score of 30 and 

below to be the most appropriate 

description to support the presumption 

that a Family Caregiver is needed, when 

a GAF score is used as the qualifier. The 

following description from the 

Diagnostic and Statistical Manual of 

Mental Disorders—Fourth Edition 

(DSM–IV) of GAF scores in the 21–30 

range is the minimum impairment 

standard that VA will require to 

consider a mental health diagnosis a 

serious injury: ‘‘Behavior is 

considerably influenced by delusions or 

hallucinations OR serious impairment, 

in communication or judgment (e.g., 

sometimes incoherent, acts grossly 

inappropriately, suicidal preoccupation) 

OR inability to function in almost all 

areas (e.g., stays in bed all day, no job, 

home, or friends).’’ At this assessed 

level of impairment, the supervision or 

protection of a caregiver is essential to 

the individual. 

Family Caregiver Eligibility 

Requirements (Other Than the GAF 

Score) Are Not More Restrictive Than 

Permitted by Law 

One commenter stated that certain 

eligibility criteria in § 71.20(a)–(g) are 

more restrictive than permitted by a 

plain reading of section 1720G. This 

commenter argued that VA has created 

additional, unlawful restrictions in the 

rule that will result in fewer veterans in 

need being deemed eligible for benefits 

and services. We do not make any 

changes based on this comment. All of 

the eligibility requirements in 

§ 71.20(a)–(g) are either restatements of 

explicit criteria in section 1720G, are 

additional lawful criteria that are 

specifically authorized by discretionary 

language in section 1720G, or are 

supported by the clear intent of the law. 

The following discussion directly 

compares all provisions of the eligibility 

criteria in § 71.20(a)–(g) to the express 

provisions and intent of section 1720G. 

The requirements in § 71.20(a)–(b) 

restate the requirements in section 

1720G(a)(2)(A)–(B) that a qualifying 

individual must be a veteran, or 

servicemember undergoing medical 

discharge, who has a serious injury 

incurred or aggravated in the line of 

duty on or after September 11, 2001. 

The requirements in § 71.20(c) create 

additional criteria which are not 

expressly stated in section 1720G, but 

that are necessary and consistent with 

the overall purpose of the law. Section 

71.20(c) establishes that there must be a 

connection between the qualifying 

serious injury and the individual’s need 

for personal care services, and that a 

minimum of six continuous months of 

care is required. As we stated in the 

interim final rule, we believe that it is 

reasonable to interpret section 1720G, 

which premises eligibility upon a 

serious injury incurred or aggravated in 

the line of duty, to require that the 

serious injury form the basis for the 

individual’s need for a Family 

Caregiver. It would not have been 

reasonable for Congress to have 

authorized VA to provide Family 

Caregiver services to veterans and 

servicemembers with serious injuries 

but not to have also required that the 

need for such services be specifically 

linked with the serious injuries. We also 

interpret section 1720G to provide 

Family Caregiver support and assistance 

for the benefit of individuals with longterm disabilities, and not episodic flare 

ups that temporarily establish the need 

for a Family Caregiver; this is the basis 

for the required six-month period. We 

reiterate from the interim final rule that 

this requirement meets the intent of the 

statute to benefit persons with longer 

term care needs. The law contemplates 

training, payment of compensation, and 

ongoing monitoring of veterans 

receiving Family Caregiver services in 

their homes, all of which support a 

framework that will benefit those with 

longer-term care needs. 

The requirements in § 71.20(c)(1)–(2) 

restate the criteria in section 

1720G(a)(2)(C)(i)–(ii), that the qualifying 

individual be in need of personal care 

services because of an inability to 

perform an activity of daily living, or 

due to the individual needing 

supervision or protection based on 

symptoms or residuals of neurological 

or other impairment or injury. The 

requirements in § 71.20(c)(3)–(4) are 

discretionary eligibility criteria 

expressly permitted by section 

1720G(a)(2)(C)(iii), and allow a veteran 

or servicemember to be considered in 

need of personal care services through 

two additional means: a qualifying 

Global Assessment of Functioning score 

of 30 or less; or if the individual is 

service-connected for a qualifying 

serious injury, is rated as 100 percent 

disabled for that injury, and has been 

awarded special monthly compensation 

that includes an aid and attendance 

allowance. 

A veteran or servicemember is not 

required to meet all requirements under 

§ 71.20(c)(1)–(4). Paragraph (c) specifies 

that an individual may be considered to 

be in need of personal care services 

‘‘based on any one of the following 

clinical criteria.’’ 38 CFR 71.20(c). We 

further interpret that the law’s use of the 

word ‘‘or’’ in section 1720G(a)(2)(C) 


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allows VA to choose, as needed, 

between the criteria in section 

1720G(a)(2)(C)(i)–(iii) in determining a 

veteran or servicemember’s eligibility, 

to include choosing them all. VA 

included all explicit criteria under 

section 1720G(a)(2)(C)(i)–(ii) in 

§ 71.20(c)(1)–(2), and prescribed 

additional discretionary criteria in 

§ 71.20(c)(3)–(4) as permitted by section 

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

The requirement in § 71.20(d) 

indicates that an individual may not be 

considered eligible unless a clinical 

determination is made that it is in the 

individual’s best interest to participate 

in the program. One commenter 

suggested that this requirement was 

unreasonable, as VA’s ‘‘in the best 

interest’’ determination is not analogous 

to the criterion in section 

1720G(a)(1)(B), which states that VA 

‘‘shall only provide support under the 

[Program of Comprehensive Assistance 

for Family Caregivers] to a family 

caregiver of an eligible veteran if the 

Secretary determines it is in the best 

interest of the eligible veteran to do so.’’ 

Essentially, the commenter stated that 

VA incorrectly used the ‘‘in the best 

interest’’ criterion for the purposes of 

determining eligibility of the veteran 

themselves for benefits, instead of for 

the purposes of determining whether to 

provide benefits to a Family Caregiver. 

We recognize that the language in 

§ 71.20(d) regarding the ‘‘in the best 

interest’’ determination is phrased 

differently than in section 

1720G(a)(1)(B), but this difference is not 

contrary to section 1720G(a)(1)(B), and 

does not create more restrictive 

eligibility criteria than permitted by 

law. Section 1720G does not confer 

benefits to a Family Caregiver 

independent of a qualifying veteran or 

servicemember, nor are benefits 

available to a qualifying veteran or 

servicemember under section 1720G, 

without the designation of a Family 

Caregiver. Therefore, section 

1720G(a)(1)(B) and § 71.20(d) both 

contemplate the same determination: 

whether it is in the best interest of the 

veteran or servicemember to receive 

care and services under the Program of 

Comprehensive Assistance for Family 

Caregivers, and therefore whether the 

Family Caregiver receives support from 

VA to provide such care and services. It 

is essential then to consider whether it 

is in the best interest of the veteran or 

servicemember to participate in the 

Program of Comprehensive Assistance 

for Family Caregivers generally, as part 

of the initial qualification criteria in 

§ 71.20(d). Our use of the phrasing ‘‘in 

the best interest of the individual to 

participate in the program’’ in § 71.20(d) 

is not a more restrictive interpretation 

than permitted by law, because a 

determination that a veteran’s or 

servicemember’s caregiver should not 

receive benefits under section 

1720G(a)(1)(B) is functionally the same 

as a determination that a veteran or 

servicemember may not participate in 

the program under § 71.20(d). The text 

of § 71.20(d) maintains the premise 

under section 1720G(a)(1)(B) that the 

determination be based on ‘‘the best 

interest’’ of the individual, and merely 

rephrases to clarify that benefits are 

provided to Family Caregivers only 

when it is in the best interest of the 

individual to participate in the Program 

of Comprehensive Assistance for Family 

Caregivers. 

A related argument from the 

commenter contended further that our 

definition of ‘‘[i]n the best interest’’ in 

§ 71.15 creates a higher standard than a 

stated goal of the Program of 

Comprehensive Assistance for Family 

Caregivers, in that this definition relies 

upon a determination that 

‘‘participation in the program 

significantly enhances the eligible 

veteran’s ability to live safely in a home 

setting.’’ 38 CFR 71.15. The commenter 

contrasts this ‘‘significantly enhances’’ 

criterion with one of the goals of the 

Program of Comprehensive Assistance 

for Family Caregivers as discussed in 

the supplementary information in the 

interim final rule, which is ‘‘to ensure 

that the veteran is able to live in a 

residential setting without unnecessary 

deterioration of his or her disability, and 

safe from potential abuse or neglect.’’ 76 

FR 26148, May 5, 2011. In addition to 

asserting that the ‘‘significantly 

enhances’’ criterion in § 71.15 is a 

higher standard than expressed in the 

supplementary information section of 

the interim final rule, the commenter 

stated that the ‘‘significantly enhances’’ 

criterion is not defined and does not 

have an accompanying scale of 

measurement to express when it is met. 

Ultimately, the commenter urged VA to 

revise the rule to include a scale of 

measurement, or to remove the 

‘‘significantly enhances’’ criterion 

altogether. We do not make any changes 

based on this comment, as the 

‘‘significantly enhances’’ criterion in the 

definition of ‘‘[i]n the best interest’’ in 

§ 71.15 does not create an unreasonable 

standard beyond a goal of the Program 

of Comprehensive Assistance for Family 

Caregivers. As stated in the rule, VA 

concludes that determinations of ‘‘in the 

best interest’’ must be clinical 

determinations, guided by VA health 

professionals’ judgment as to what care 

will best support the health and wellbeing of the veteran or servicemember— 

including that which offers the best 

opportunity for recovery and 

rehabilitation, whenever possible. 

Consequently, such determinations will 

include clinical considerations of 

whether assistance from a Family 

Caregiver ‘‘significantly enhances’’ the 

individual’s ability to live safely in a 

home setting, where we intend the 

‘‘significantly enhances’’ criterion to be 

a threshold determination that 

assistance from a caregiver is actually 

necessary to allow a veteran or 

servicemember to live safely and receive 

care in a non-institutional home 

environment. This ‘‘significantly 

enhances’’ criteria allows health 

professionals, utilizing clinical 

judgment, to determine that Family 

Caregiver assistance is needed for an 

individual to live safely in a home 

setting. We do not interpret section 

1720G to permit caregiver benefits and 

services for individuals who, though 

they may benefit from such assistance, 

can perform tasks safely and 

independently 100 percent of the time 

without a caregiver, for instance by 

using assistive devices or adaptive 

equipment. The ‘‘significantly 

enhances’’ phrase in the definition of 

‘‘[i]n the best interest’’ therefore does 

not serve to unduly restrict the 

provision of Family Caregiver benefits, 

but rather ensures that these benefits are 

provided to only those veterans and 

servicemembers who actually require 

them to safely live and receive care in 

the home. 

The requirement in § 71.20(e) bars 

authorization of a Family Caregiver if 

the services that would be provided 

would be simultaneously and regularly 

provided by or through another 

individual or entity. Our intent is to 

ensure that the Family Caregiver is not 

depending on VA or another agency or 

individual to provide the personal care 

services that the Family Caregiver is 

expected to provide. This requirement is 

not more restrictive than permitted by 

law, because Congress clearly intended 

to support Family Caregivers for the 

personal care services that Family 

Caregivers themselves provide to the 

veteran or servicemember. 

The requirements in § 71.20(f)–(g) 

state that the individual must agree to 

‘‘receive care at home’’ and ‘‘receive 

ongoing care from a primary care team’’ 

after VA designates a Family Caregiver. 

The consent required by paragraphs (f) 

and (g) as a prerequisite to an award of 

Family Caregiver benefits enables VA to 

perform statutorily required monitoring 

and documentation functions. Under 

section 1720G(a)(9)(A), VA must 


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‘‘monitor the well-being of each eligible 

veteran receiving personal care 

services’’ from a VA-designated 

caregiver under the Program of 

Comprehensive Assistance for Family 

Caregivers. We are also required to 

document findings ‘‘pertinent to the 

appropriate delivery of personal care 

services to an eligible veteran under the 

program,’’ and ensure appropriate 

follow up. See 38 U.S.C. 1720G(a)(9)(B) 

and (C). In addition to meeting statutory 

requirements, the consent requirements 

in § 71.20(f)–(g) are not unreasonable, 

given that section 1720G generally is 

premised upon supporting caregivers in 

the provision of assistance to 

individuals in non-institutional home 

settings, and those individuals must 

then consent to receive such assistance. 

Neither of the requirements in 

§ 71.20(f)–(g) impose more restrictive 

criteria than permitted by section 

1720G. 

As stated above, all of the rule’s 

eligibility requirements in § 71.20(a)–(g) 

that are not restatements of law from 

section 1720G(a)(1)–(2) are either 

discretionary criteria as permitted by 

law, or are required for VA to 

implement other provisions of section 

1720G. Section 71.20 merely places all 

mandatory and permissible eligibility 

requirements from section 1720G(a) in 

one place to make them apparent at the 

outset. None of the requirements in 

§ 71.20(a)–(g) are more restrictive than 

contemplated by section 1720G(a), and 

therefore § 71.20(a)–(g) does not result 

in fewer veterans in need being deemed 

eligible for benefits and services than 

contemplated by law. 

Servicemember Eligibility 

Section 1720G indicates that 

servicemembers are eligible for benefits 

under the Program of Comprehensive 

Assistance for Family Caregivers if they 

are undergoing medical discharge from 

the Armed Forces: ‘‘For purposes of this 

subsection, an eligible veteran is any 

individual who . . . is a veteran or 

member of the Armed Forces 

undergoing medical discharge from the 

Armed Forces.’’ 38 U.S.C. 

1720G(a)(2)(A). The rule in turn defines 

‘‘undergoing medical discharge’’ by 

requiring ‘‘that the servicemember has 

been found unfit for duty due to a 

medical condition by their Service’s 

Physical Evaluation Board, and a date of 

medical discharge has been issued.’’ 38 

CFR 71.15. We received several 

comments related to the starting time of 

VA Family Caregiver benefits, or when 

a servicemember may be considered 

eligible for and then apply for benefits. 

Commenters asserted that a 

servicemember should be eligible to 

receive Family Caregiver benefits before 

receiving a medical discharge date, and 

specifically stated that a servicemember 

should be considered eligible at the 

beginning of the medical evaluation 

process within DoD. These commenters 

stated that allowing a servicemember to 

be considered eligible at an earlier date 

would ensure that training 

opportunities would be available to 

caregivers of servicemembers 

throughout the treatment of the 

servicemember by DoD, which the 

commenters assert is necessary to 

improve overall care provided to the 

servicemember. We make some changes 

to the rule based on these comments, as 

explained below. 

The medical evaluation process that is 

used by DoD to determine whether a 

servicemember remains medically fit for 

active duty can take several months or 

more, and some servicemembers 

referred and evaluated will in fact 

return to active duty or be offered an 

opportunity to train for another military 

occupational specialty. Section 1720G, 

however, suggests by use of the phrase 

‘‘eligible veteran,’’ that medical 

discharge and then transition to veteran 

status must be certain in order for a 

service member to be eligible for such 

benefits: ‘‘For purposes of this 

subsection, an eligible veteran is any 

individual who . . . is a veteran or 

member of the Armed Forces 

undergoing medical discharge from the 

Armed Forces.’’ 38 U.S.C. 

1720G(a)(2)(A). We interpret the phrase 

‘‘undergoing medical discharge’’ to 

require then that the individual be 

engaged in a process of actual 

separation from active duty, rather than 

a process of determining whether to 

separate from active duty. In order to 

effectuate this statutory requirement, we 

believe it is appropriate to ensure by 

regulation that the individual is far 

enough along in the medical discharge 

process that there will not be extended 

overlap between the individual’s period 

of service and the time that they achieve 

veteran status, as well as to attempt to 

ensure that the discharge is essentially 

inevitable. Therefore, we make no 

change to our definition of 

‘‘[u]ndergoing medical discharge.’’ 

In addition to the reasons stated 

above, we do not believe Congress 

intended to authorize prolonged VA 

Family Caregiver benefits for active duty 

servicemembers, particularly because it 

has authorized DoD to provide monthly 

special compensation, under 37 U.S.C. 

439, to active duty servicemembers 

who, due to a catastrophic injury or 

illness incurred or aggravated in the line 

of duty, require a caregiver in order to 

avoid institutional care. One commenter 

expressed, however, that the special 

compensation that DoD may pay to 

these same servicemembers under 

section 439 is not sufficient to ensure 

that actual caregiver training is 

provided. As noted above, individuals 

receiving section 439 DoD 

compensation may eventually return to 

active duty. Although VA can and will 

provide Family Caregiver training for 

servicemembers who have been issued a 

medical discharge date (and meet other 

requirements to qualify for the Program 

of Comprehensive Assistance for Family 

Caregivers), for the reasons described 

above we do not believe that section 

1720G authorizes VA to provide Family 

Caregiver training before the 

servicemember is assigned such a date. 

However, we understand the 

commenters’ stated concerns for those 

servicemembers who may be 

undergoing a lengthy discharge process 

due to multiple hospitalizations and 

extended recovery times, and their 

caregivers who would benefit from 

receiving VA Family Caregiver training 

in addition to the servicemember 

receiving the monetary benefit provided 

by DoD pursuant to 37 U.S.C. 439. In the 

interest of providing compassionate, 

patient-centric care, we note that VA 

has initiated discussions with DoD to 

design a caregiver training and 

education program that would be 

substantially similar to VA’s program. 

Although such a program is not 

currently operationalized, DoD may 

utilize such a program in the future to 

train caregivers of active duty 

servicemembers. 

Under the interim final rule, 

§ 71.25(d) defined caregiver training as 

‘‘a program of education and training 

designed by and provided through VA.’’ 

Before an individual is approved as a 

Family Caregiver, § 71.25(c)(2) requires 

that the individual complete caregiver 

training as defined under § 71.25(d). 

Based on comments concerning the 

need to allow caregivers to receive 

training while their veterans are still 

active duty servicemembers, and 

provided that DoD may adopt a training 

program for caregivers in the future, we 

amend § 71.25(d) to remove the 

requirement that caregiver training be 

‘‘provided through’’ VA, so that 

§ 71.25(d) will define Family Caregiver 

training as ‘‘a program of education and 

training designed and approved by VA.’’ 

Consequently, VA will approve and 

accept participation by a caregiver of an 

active duty servicemember in DoD 

caregiver training that is modeled after 

VA’s caregiver training to satisfy the 

training requirements under 

§ 71.25(c)(2). Recognition of such 

training that may be offered by DoD in 


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the future, that is substantially similar 

to that offered by VA, will prevent 

Family Caregivers from having to 

undertake the same training more than 

once, unless necessary. 

We also amend § 71.25(e) to require 

that VA visit the veteran at home and 

assess the Family Caregiver’s 

competence to provide personal care 

services within 10 business days after 

VA certifies completion of training, 

rather than within 10 business days of 

training completion. As noted above, 

the training may be provided by DoD to 

caregivers of active duty 

servicemembers who are not at that time 

eligible for Family Caregiver benefits; 

therefore, we cannot visit the home 

within 10 days after completion of such 

training. Thus, § 71.25(e) now provides 

that a home-care assessment must be 

conducted by VA not later than 10 

business days after VA certifies 

completion of Family Caregiver training, 

versus not later than 10 business days 

after completion of the training. In 

practice, VA will certify that previous 

DoD training has been completed when 

the caregiver presents documentation 

showing completion to VA, after a joint 

application has been submitted and all 

eligibility and approval criteria are 

otherwise met under §§ 71.20–71.25. 

This amendment of § 71.25(e) will not 

have any adverse effect on caregivers of 

eligible veterans who complete Family 

Caregiver training provided through VA, 

as VA will continue to schedule the 

home visit within 10 days of training 

completion. 

Procedures for Clinical Ratings 

One commenter stated that the rule 

failed to clearly articulate how VA 

makes clinical determinations. 

Specifically, the commenter suggested 

that the phrase ‘‘clinical rating’’ be 

defined to describe procedures that 

would ensure that clinical 

determinations are made by an 

interdisciplinary team (and not one 

individual), and that would ensure that 

the perspectives of the caregiver are 

considered when determining need for 

personal care services. The commenter 

suggested that the caregiver be 

interviewed to capture the caregiver’s 

assessment of the veteran’s or 

servicemember’s need for personal care 

services, as well as to assess the level of 

distress potentially experienced by the 

caregiver. The commenter lastly urged 

that eligibility evaluations concerning a 

need for ‘‘supervision or protection’’ 

specifically should account for how the 

individual veteran or servicemember 

functions at home and in his or her 

community to properly evaluate the 

individual’s need for protection or 

supervision. 

The rule states in § 71.25(f) that ‘‘if 

the eligible veteran and at least one 

applicant meet the requirements of this 

part, VA will approve the application 

and designate Primary and/or 

Secondary Family Caregivers, as 

appropriate. This approval and 

designation will be a clinical 

determination authorized by the eligible 

veteran’s primary care team.’’ We intend 

that the clinical determinations made 

under § 71.20 regarding the veteran’s or 

servicemember’s initial eligibility as 

well be authorized by a primary care 

team versus a single individual, and 

agree with the commenter that § 71.20 

be so amended. Section 71.20(c) will 

now similarly states that ‘‘such serious 

injury renders the individual in need of 

personal care services for a minimum of 

6 continuous months (based on a 

clinical determination authorized by the 

individual’s primary care team), based 

on any one of the following clinical 

criteria.’’ Section 71.20(d) will now state 

that ‘‘a clinical determination 

(authorized by the individual’s primary 

care team) has been made that it is in 

the best interest of the individual to 

participate in the program.’’ We believe 

§ 71.20(c) otherwise clearly specifies the 

criteria by which personal care services 

are determined to be needed. 

We additionally make one change to 

the definition of ‘‘Primary care team’’ as 

that term is defined in § 71.15 to 

indicate that we are referring to a group 

of medical professionals who care for a 

patient and who are selected ‘‘by VA.’’ 

We do not believe this is a substantive 

change, as the rule clearly states that VA 

is responsible for conducting all clinical 

assessments and determinations in the 

process of assessing and approving 

Family Caregivers. See § 71.25(a)(2), 

(b)(3), (c), (c)(1), (e), and (f). 

Section 71.25(c) further mandates that 

during the application process, the 

primary care team will screen the family 

member to ensure the family member 

meets criteria to complete caregiver 

education and training, and thereby is 

deemed able to provide caregiver 

assistance. We believe that this 

caregiver screening is consistent with 

law, and we do not find that an 

additional, individual interview with 

the caregiver, or required inclusion of 

the caregiver in the veteran’s or 

servicemember’s assessment, should be 

a formal part of the current clinical 

process in determining the level of 

personal care services needed by every 

veteran or servicemember. However, it 

is not VA practice to bar a caregiver 

from being present during the veteran’s 

or servicemember’s assessment. The 

regulation at § 71.40(c)(4) similarly does 

not restrict the presence of a caregiver 

during a veteran’s or servicemember’s 

assessment, nor does it restrict a 

primary care team from considering the 

input of a caregiver. It is likely then that 

in many cases the caregiver will be 

present during the clinical assessment 

of the veteran or servicemember and 

that the primary care team will have 

discussions with that caregiver as 

needed to assist in determining the level 

of personal care services needed by the 

veteran or servicemember. As to the 

commenter’s request for an assessment 

of a caregiver’s level of distress, we 

recognize that it is important that 

caregivers be adequately trained so as 

not to experience undue levels of 

distress. In determining whether a 

particular caregiver should be approved 

and designated, VA will apply the 

objective criteria in § 71.25(b) and then 

assess the prospective caregiver in 

accordance with § 71.25(c). It is at that 

time that the clinical team will be able 

to determine whether the individual can 

perform the duties of a Family Caregiver 

and, in making that determination, the 

clinical team will consider ‘‘any 

relevant information specific to the 

needs of the eligible veteran. . . .’’ 38 

CFR 71.25(c)(1). Information that a 

family member experiences too much 

stress to provide personal care services 

would be considered at such time. To 

the extent that a family member may be 

designated as a Family Caregiver and 

then, subsequently, find the 

responsibility to be stressful, we note 

that respite care will be available under 

§ 71.40, and revocation of Family 

Caregiver status is available under 

§ 71.45. 

Lastly, we believe that initial 

eligibility determinations for 

individuals who may require 

supervision or protection do take into 

account how each individual functions 

in his or her home and community. The 

current evaluation process captures 

whether the veteran or servicemember is 

experiencing symptoms that necessitate 

supervision or protection, as those 

symptoms are described in § 71.15. We 

do, however, make changes to § 71.25(e) 

to facilitate ease of understanding 

related to home visits, and to clarify that 

an eligible veteran’s well-being is 

independently assessed to determine if 

any additional training is needed for the 

caregiver to meet the eligible veteran’s 

personal care needs. We believe this 

addresses the commenter’s concern that 

VA assess a veteran’s or 

servicemember’s functionality in his or 

her home as appropriate. Section 

71.25(e) is amended to make clear that 


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the purpose of the home visit is for the 

VA clinician or clinical team to assess 

the caregiver’s completion of training 

and competence to provide personal 

care services to the eligible veteran, and 

to measure the eligible veteran’s wellbeing. 

We believe the evaluation process as 

discussed above appropriately describes 

an interdisciplinary clinical assessment 

process that involves the caregiver, 

without being overly prescriptive 

beyond the requirements of the law. We 

make one last non-substantive change to 

§ 71.25(c)(1)(i) to clarify that 

accommodation for language or hearing 

impairment during an initial assessment 

of the application will be made ‘‘to the 

extent possible and’’ as appropriate. 

Appeals 

Multiple commenters stated that the 

rule should address a veteran’s, 

servicemember’s, or caregiver’s right to 

appeal decisions made in connection 

with the Program of Comprehensive 

Assistance for Family Caregivers. In 

response, we first note that medical 

determinations are not subject to the 

jurisdiction of the Board of Veterans’ 

Appeals under 38 U.S.C. 7104, or 

pursuant to our implementing 

regulation, which states that ‘‘medical 

determinations, such as determinations 

of the need for and appropriateness of 

specific types of medical care and 

treatment for an individual, are not 

adjudicative matters and are beyond the 

[Board of Veterans’ Appeals’] 

jurisdiction.’’ 38 CFR 20.101(b). We 

additionally note that the Caregivers Act 

expressly states that ‘‘[a] decision by the 

Secretary under [the Program of 

Comprehensive Assistance for Family 

Caregivers or the Program of General 

Caregiver Support Services] affecting 

the furnishing of assistance or support 

shall be considered a medical 

determination.’’ 38 U.S.C. 1720G(c)(1). 

Therefore, all determinations that affect 

the furnishing of assistance or support 

through the programs under 38 U.S.C. 

1720G are medical determinations as a 

matter of law, and as such may not be 

adjudicated in the standard manner as 

claims associated with veterans’ 

benefits. We consequently do not make 

any changes to the rule. 

Commenters asserted nonetheless that 

not all decisions under these regulations 

are medical in nature, and as such VA 

must distinguish in the rule those 

determinations that are not medical and 

that therefore may be appealed through 

the current processes associated with 

adjudicating veterans’ benefits claims. 

Commenters also advocated that this 

rule must further prescribe an appellate 

mechanism for medical determinations. 

We disagree, and do not make any 

changes based on these comments. 

Though the commenters recognize the 

clear mandate that all decisions 

regarding benefits under the rule are 

medical determinations and therefore 

are not appealable to the Board of 

Veterans’ Appeals, commenters assert 

that Congress could not have intended 

to make decisions related specifically to 

eligibility determinations exempt from 

appellate review. In support of this 

contention, commenters cited 38 CFR 

20.101(b), which states that ‘‘[t]he 

[Board of Veterans’ Appeals’] appellate 

jurisdiction extends to questions of 

eligibility.’’ To illustrate their point, 

commenters argued that Congress could 

not have intended to deny an 

administrative right to appeal, for 

example, a nonmedical decision that a 

veteran’s or servicemember’s injury was 

incurred in the line of duty, or was 

incurred on or after September 11, 2001. 

The plain language of section 

1720G(c)(1) removes any doubt that 

Congress intended to insulate even 

decisions of eligibility from appellate 

review under the Program of 

Comprehensive Assistance for Family 

Caregivers, and VA’s regulation at 

§ 20.101(b) cannot circumvent a 

statutory requirement. ‘‘If the intent of 

Congress is clear, that is the end of the 

matter; for the court, as well as the 

agency, must give effect to the 

unambiguously expressed intent of 

Congress.’’ Chevron, U.S.A., Inc. v. 

Natural Res. Def. Council, Inc., 467 U.S. 

837, 842–43 (1984). Further, Congress is 

presumed to know what laws and 

regulations exist when it enacts new 

legislation, and it is reasonable to infer 

that Congress knew that medical 

determinations were not appealable 

under § 20.101, and subsequently used 

that precise phrase in the statute to limit 

appeals of decisions in the Program of 

Comprehensive Assistance for Family 

Caregivers. See California Indus. 

Products, Inc. v. United States, 436 F.3d 

1341, 1354 (Fed. Cir. 2006) (‘‘These 

regulations are appropriately considered 

in the construction of [this particular 

statute] because Congress is presumed 

to be aware of pertinent existing law.’’). 

We recognize the seeming 

incongruence of the statutory mandate; 

for instance, a determination under the 

Program of Comprehensive Assistance 

for Family Caregivers that a veteran’s or 

servicemember’s military record did not 

support eligibility because he or she was 

discharged from active duty before 

September 11, 2001, is deemed a 

‘‘medical determination’’ because it 

affects the provision of Family Caregiver 

benefits. However, if a veteran or 

servicemember believes that his or her 

military records are incorrect, he or she 

may seek correction of those records 

through his or her service department. 

If VA errs in applying these types of 

non-discretionary criteria, the error 

should be clear on the face of the 

evidence presented, or could be 

rectified with the presentation of 

alternate or corrected evidence. Such 

decisions would not create a situation in 

which the expertise of the Board of 

Veterans’ Appeals at interpreting legal 

and regulatory provisions would be 

required. Instead, VHA has a clinical 

appeals process that will be sufficient to 

resolve such conflict. Under the VHA 

appeals process, patients or their 

representatives have access to a fair and 

impartial review of disputes regarding 

clinical determinations or services that 

are not resolved at the facility level. 

This process is intended to resolve 

conflicts about whether an appropriate 

clinical decision has been made, and the 

process certainly can resolve whether 

the adverse decision was based, for 

example, on a misreading of a date in 

a military record. Other issues that are 

being resolved through the VHA clinical 

appeals process include basic eligibility, 

determination of ‘‘illness’’ or ‘‘injury,’’ 

and the tier level assigned for stipend 

payment. This appeals process does not 

defy the statutory restriction at 38 

U.S.C. 1720G(c)(1) against appeals to the 

Board of Veterans’ Appeals because it is 

specifically designed to resolve conflicts 

based upon medical determinations. 

We note, however, that not all 

benefits provided to caregivers are 

provided under 38 U.S.C. 1720G. 

Certain benefits afforded to caregivers 

by 38 U.S.C. 1720G are provided 

through other statutory authorities, and 

decisions regarding those benefits are 

therefore not made under 38 U.S.C. 

1720G. For example, decisions by the 

Secretary affecting the payment of 

beneficiary travel (under 38 U.S.C. 

111(e)(2) as authorized by 38 U.S.C. 

1720G(a)(3)(A)(i)(IV)), the provision of 

CHAMPVA (under 38 U.S.C. 1781 as 

authorized by 38 U.S.C. 

1720G(a)(3)(A)(ii)(IV)), and debt 

collection and waiver (under 31 U.S.C. 

3711 and 38 U.S.C. 5302) are examples 

of matters decided under statutory 

authorities other than 38 U.S.C. 1720G. 

Appeal processes associated with those 

decisions, under applicable statutes and 

regulations, may be pursued by 

caregivers who disagree with a VA 

decision made under those authorities. 

See e.g., 38 CFR 70.40, 17.276, 1.900– 

1.970. 


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Expansion of ‘‘Activities of Daily 

Living’’ in Stipend Calculation 

Under § 71.40(c)(4), VA calculates the 

monthly stipend available to Primary 

Family Caregivers based on clinical 

ratings of both the eligible veteran’s 

level of dependence in performing 

activities of daily living (ADLs) listed in 

the definition of the term ‘‘[i]nability to 

perform an activity of daily living’’ in 

§ 71.15, and his or her ‘‘[n]eed for 

supervision or protection based on 

symptoms or residuals of neurological 

or other impairment or injury’’ under 

§ 71.15. The ADLs designated in § 71.15 

are: Dressing; bathing; grooming; 

frequent need of adjustment of special 

prosthetic or orthopedic appliance that, 

by reason of the particular disability, 

cannot be done without assistance; 

toileting; feeding oneself; and mobility. 

Several commenters sought to include 

additional activities in the list of ADLs 

in § 71.15, because a Primary Family 

Caregiver may assist with activities that 

maintain an individual’s quality of life 

but that are not listed as ADLs in § 71.15 

and, therefore, are not accounted for in 

the stipend calculation. Examples of 

such activities included meal 

preparation, housework, shopping, 

transportation, laundry services, 

medication management, and using a 

telephone or other communication 

device. Multiple commenters referred to 

these activities as ‘‘instrumental 

activities of daily living’’ to distinguish 

them from the self-care ADLs already 

described in § 71.15. We do not make 

any changes to the rule based on these 

comments, and do not expand the listed 

ADLs in § 71.15 that are considered in 

calculating the stipend. 

We believe that Congress specifically 

considered and rejected the use of the 

term ‘‘instrumental activities of daily 

living’’ in the Caregivers Act, as made 

apparent in the joint statement which 

accompanied the law. To reiterate our 

rationale from earlier in this 

rulemaking, it is clear from the joint 

statement that the eligibility criteria in 

the Senate bill (S. 1963, 111th Cong. 

(2009)), and not those in the House of 

Representatives bill (H.R. 3155, 111th 

Cong. (2009)), are generally reflected in 

the Caregivers Act, including the 

eligibility criteria and language 

regarding activities of daily living. In 

describing the eligibility criteria in the 

Senate bill, the joint statement states 

that ‘‘[s]everely injured veterans are 

defined as those who need personal care 

services because they are unable to 

perform one or more independent 

activities of daily living.’’ 156 Cong. 

Rec. S2567. This is in contrast to the 

eligibility criteria in the House of 

Representatives bill, which would have 

accounted for veterans ‘‘unable to carry 

out activities (including instrumental 

activities) of daily living.’’ Id. The 

Senate bill’s eligibility criteria language 

most closely resembles that which was 

adopted in the Caregivers Act. See 38 

U.S.C. 1720G(d)(4)(A) (which defines 

‘‘personal care services’’ to include 

services that provide assistance with 

one or more ‘‘independent activities of 

daily living’’). ‘‘[W]here the language 

under question was rejected by the 

legislature and thus not contained in the 

statute it provides an indication that the 

legislature did not want the issue 

considered.’’ 2A Norman J. Singer, 

Sutherland Statutory Construction, 

section 48:04 (6th ed. 2000). Because it 

is clearly the Senate provision and its 

characterization of ADLs as 

‘‘independent’’ and not ‘‘instrumental’’ 

that became law, we do not agree with 

the commenters that VA must expand 

the ADL listing in § 71.15 to include 

‘‘instrumental’’ ADLs. 

We clarify that some activities 

commenters wanted to add to the ADL 

listing in § 71.15 are already specifically 

considered in § 71.15, or elsewhere in 

the rule. An individual who has 

difficulty with ‘‘medication 

management’’ for instance, may be 

eligible if he or she is considered under 

§ 71.15 as having ‘‘[d]ifficulty with 

planning and organizing (such as the 

ability to adhere to medication 

regimen).’’ Additionally, the costs 

involved in traveling to and from and 

for the duration of the eligible veteran’s 

medical examination, treatment, or care 

may be compensable through the 

beneficiary travel program pursuant to 

§ 71.40(b)(6) and section 104 of the 

Caregivers Act. To consider such costs 

in calculation of the stipend would 

amount to duplicative compensation. 

However, caregiver services consisting 

solely of common housekeeping 

activities (housecleaning, laundry, meal 

preparation, shopping, or other chores), 

as well as assistance with financial 

management and operating 

communication devices, should not be 

compensable as part of the stipend 

unless these deficiencies relate to a need 

for supervision or protection or inability 

to perform ADLs, pursuant to the 

explicit requirements of the Caregivers 

Act. Section 1720G(a)(3)(C)(i) states that 

VA must base the stipend amount on 

‘‘the amount and degree of personal care 

services provided,’’ and section 

1720G(a)(2)(C)(i)–(iii) predicates the 

need for personal care services on the 

individual being unable ‘‘to perform one 

or more activities of daily living;’’ 

having a ‘‘need for supervision or 

protection based on symptoms or 

residuals of neurological or other 

impairment or injury;’’ or ‘‘such other 

matters as the Secretary considers 

appropriate.’’ Because the law premises 

the need for personal care services on 

specific ADL needs or supervision and 

protection needs, the calculation of the 

stipend amount is based upon the 

amount and degree of assistance an 

individual requires to perform one or 

more activities of daily living (ADL), or 

the amount and degree to which the 

individual is in need of supervision or 

protection based on symptoms or 

residuals of neurological or other 

impairment or injury. The stipend is 

calculated, therefore, based on the 

personal care needs of each individual, 

not specific duties as performed by 

caregivers that are not directly related to 

assistance with ADLs or providing 

supervision or protection in the home. 

For instance, while housecleaning and 

shopping may be common activities in 

daily living, completion of these 

activities by the caregiver may not be for 

the exclusive benefit of the eligible 

veteran, but rather for the benefit of the 

entire household to potentially include 

the Primary Family Caregiver—these 

activities are not related to the eligible 

veteran’s specific need for ADL 

assistance or need for protection or 

supervision. 

While we do not amend the rule to 

add ADLs to § 71.15 as suggested by 

commenters, we do believe changes to 

§ 71.40(c)(4)(iv)(A)–(C) would clarify the 

intent of the assessment of an eligible 

veteran’s need for personal care 

services, with relation to calculating the 

monthly stipend for Primary Family 

Caregivers. Section 71.40(c)(4)(iv) 

currently equates the sum of a veteran’s 

ratings under § 71.40(c)(4)(iii) with the 

number of caregiver assistance hours the 

veteran is presumed to need. See 38 

CFR 71.40(c)(4)(iv) (explaining that the 

sum of ratings indicates that ‘‘the 

eligible veteran is presumed to require’’ 

a certain number of hours of caregiver 

assistance per week). Because the 

stipend amount must be based on the 

amount of personal care services 

needed, we will emphasize that an 

eligible veteran’s rating under 

§ 71.40(c)(4)(iii) will be the basis for the 

stipend the Family Caregiver will 

receive. We therefore amend 

§ 71.40(c)(4)(iv)(A)–(C) to indicate that 

the sum of an eligible veteran’s ratings 

under § 71.40(c)(4)(iii) will be the basis 

for the stipend payment the Family 

Caregiver will receive, equivalent to the 

eligible veteran requiring a designated 

number of hours of caregiver assistance. 

This change in the regulation text does 


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not create any substantive change in the 

calculation of the stipend. 

Multiple commenters asserted that 

other VA statutory or regulatory 

authority supported the expansion of 

listed ADLs in § 71.15. One commenter 

asserted that the rule does not consider 

as eligible those veterans or 

servicemembers with residuals of 

traumatic brain injury (TBI) who are 

able to perform ADLs as listed in 

§ 71.15, but not ‘‘instrumental activities 

of daily living’’ (IADLs) as that term is 

used in 38 CFR 4.124a, Schedule of 

ratings—neurological conditions and 

convulsive disorders. While the 

commenter cited 38 CFR 4.123, we 

assume that the commenter was 

referring to § 4.124a and that 

regulation’s use of the term IADL to 

suggest that the rule should be 

consistent with VA’s means of rating 

TBI for purposes of determining 

disability compensation. We disagree 

for several reasons. First, we reiterate 

that the stipend provided to a caregiver 

under section 1720G is not disability 

compensation, and is not related to 

disability compensation. The stipend is 

paid directly to the Primary Family 

Caregiver and is calculated based on the 

degree of assistance required by the 

eligible veteran. Congress could easily 

have linked the caregiver stipend to 

disability compensation; however, 

section 1720G instead mandates that VA 

create a program that is distinct from 

virtually all other VA benefits programs. 

The caregiver stipend is designed to 

assist eligible veterans by enabling 

Primary Family Caregivers to provide 

certain home-based care. It is not 

designed to supplement, replace, or be 

dependent on the level of disability 

compensation received by the veteran. 

The regulations implementing the 

Program of Comprehensive Assistance 

for Family Caregivers, in particular the 

criteria for calculating the stipend 

amount, were specifically established to 

meet the goals of the Caregivers Act 

governing the Program of 

Comprehensive Assistance for Family 

Caregivers. These regulations are not, 

and need not be, designed to 

complement the rating schedule in 38 

CFR part 4. 

Another commenter stated, ‘‘Section 

1115 of title 38 of the United States 

Code provides compensation to the 

veteran only when the spouse cannot 

perform the duties of a caregiver. This 

same level of stipend should be applied 

to non-medical care services provided 

by caregivers to service members and 

veterans.’’ The meaning of this comment 

is unclear. First, it is not clear to what 

‘‘[t]his same level of stipend’’ refers. 

Section 1115 of title 38, United States 

Code, does not provide a stipend; rather, 

it authorizes additional compensation 

for certain dependents to a veteran 

entitled to compensation at the rates 

provided under 38 U.S.C. 1114, and 

whose disability is rated at least 30 

percent. Nothing in 38 U.S.C. 1115, or 

in VA’s implementing regulation at 38 

CFR 3.4(b)(2), suggests that a veteran’s 

receipt of additional compensation for 

dependents is based on the veteran’s 

dependent spouse being unable to serve 

as the veteran’s caregiver. Section 1115 

compensation is available to a veteran 

for a dependent spouse, regardless of 

the spouses’ caregiver status, and the 

payment of section 1115 compensation 

to a veteran for a dependent spouse does 

not equate to VA paying for ‘‘nonmedical’’ services provided to the 

veteran or to the dependent spouse. 

Rather, the payment of additional 

compensation for dependents is 

intended to assist a disabled veteran to 

continue to support certain dependents. 

Additionally, a veteran’s receipt of 

additional compensation under section 

1115 is not affected by a dependent 

spouse’s receipt of the stipend under 

§ 71.40(c)(4). Generally, we reiterate our 

rationale that the stipend provided to a 

Primary Family Caregiver under 

§ 71.40(c)(4) is not disability 

compensation, and is not related to VA’s 

disability compensation authorities, to 

include section 1115. The stipend is 

paid directly to the Primary Family 

Caregiver and not the veteran, and is 

calculated based on of the degree of 

assistance required by the veteran, and 

not the veteran’s rated level of 

disability. 

It is possible that the commenter 

intended to discuss the additional 

compensation payable based on a 

veteran’s need for aid and attendance 

and a ‘‘higher level of care’’ (under 38 

U.S.C. 1114(r)(2)), which is payable only 

if personal health care services must be 

provided by, or provided under the 

supervision of, a licensed provider in 

the veteran’s home. 38 U.S.C. 1114(r)(2). 

Assuming that the commenter was 

referring to payments under section 

1114(r)(2), we find the commenter’s 

analogy between payments under that 

section and the stipend payments under 

this rule inapplicable. The duties 

provided by a Primary Family Caregiver 

are not exclusively personal health care 

services that must be performed by a 

person who is licensed to provide such 

services or under the regular 

supervision of a licensed health care 

professional, unlike the services 

required by a veteran under section 

1114(r)(2). All assistance that is 

compensable under the stipend 

calculation in the rule, such as helping 

the eligible veteran with dressing, 

eating, grooming, using the toilet, etc., 

requires no special license and only a 

designated level of training as specified 

in § 71.25(d). Payments under section 

1114(r)(2) would be even less 

comparable to stipend payments under 

the rule, in fact, if non-medical IADL 

services that clearly do not require 

licensure (e.g., laundry, meal 

preparation) were considered in the 

calculation of the stipend. We 

additionally clarify that participation in 

the Program of Comprehensive 

Assistance for Family Caregivers would 

not bar a veteran from receiving aid and 

attendance compensation under section 

1114(r), as § 71.20(c)(4) makes clear that 

one of the means of establishing a need 

for personal care services is the veteran 

having been rated 100 percent disabled 

for a service connected qualifying 

serious injury, where the individual has 

been awarded special monthly 

compensation that includes an aid and 

attendance allowance. 

Lastly, one commenter stated that VA 

should expand the listing of ADLs in 

§ 71.15, because VA is not limited by 

section 1720G(d)(4)(B) to only consider 

38 U.S.C. 1701(6)(E) as its authority to 

define non-institutional extended care 

under the rule. In turn, as asserted by 

the commenter, VA is not so limited in 

defining ‘‘personal care services’’ in 

§ 71.15. We do not make any changes 

based on this comment, as we believe 

we are so limited by the clear language 

of the law. The rule elaborates upon the 

statutory definition of ‘‘personal care 

services’’ set forth in 38 U.S.C. 

1720G(d)(4). There, personal care 

services means services that provide the 

eligible veteran with ‘‘[a]ssistance with 

one or more independent activities of 

daily living [and] . . . [a]ny other noninstitutional extended care (as such 

term is used in section 1701(6)(E) of 

[title 38]).’’ Non-institutional extended 

care services are not defined in 38 

U.S.C. 1701(6)(E) in a manner that 

delineates the types of non-institutional 

extended care that constitute ‘‘personal 

care services,’’ but rather only 

authorizes the Secretary of VA to 

provide non-institutional extended care. 

See 38 U.S.C. 1701(6)(E) (explaining 

that the term ‘‘medical services’’ 

includes ‘‘[n]oninstitutional extended 

care services, including alternatives to 

institutional extended care that the 

Secretary may furnish directly, by 

contract, or through provision of case 

management by another provider or 

payer.’’). VA provides noninstitutional 

extended care services to veterans 

through VA’s medical benefits package, 


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which includes but is not limited to 

‘‘noninstitutional geriatric evaluation, 

noninstitutional adult day health care, 

and noninstitutional respite care.’’ 38 

CFR 17.38(a)(1)(xi)(B). The clear 

language of 38 U.S.C. 1720G(d)(4)(B) 

requires that VA apply the term ‘‘noninstitutional extended care’’ according 

to this established framework, ‘‘as such 

term is used in section 1701(6)(E) of 

[title 38].’’ 38 U.S.C. 1720G(d)(4)(B). We 

do not agree, therefore, with the 

commenter’s assertions that we may rely 

on statutory authorities other than 

section 1701(6)(E), and in turn the 

implementing regulation at 38 CFR 

17.38(a)(1)(xi)(B), to provide noninstitutional care under the rule or 

otherwise as support for expanding the 

definition of ‘‘personal care services’’ in 

§ 71.15. Moreover, the other authorities 

the commenter suggested we utilize to 

define non-institutional care and thus, 

personal care services under the rule 

specifically relate to the delivery of 

home health services, extended care 

services, and similar treatment by an 

interdisciplinary health team, not the 

provision of personal care services by a 

Family Caregiver as intended by section 

1720G. See 38 U.S.C. 1710B, 1717, 

1720C. 

40-Hour Cap on Compensable Personal 

Care Services 

A commenter contended that the cap 

of 40 hours of compensable caregiver 

assistance under § 71.40(c)(4)(iv) is 

insufficient because the personal care 

needs of some eligible veterans may 

exceed that limit. Specifically, this 

commenter argued that the rationale for 

such a cap should be articulated in the 

rule, and that the rule must allow the 

caregiver a reasonable opportunity to 

rebut the presumption that a veteran 

requires no more than 40 hours of 

assistance a week. We do not make any 

changes based on this comment. As 

previously stated, the stipend is 

calculated based on the personal care 

needs of each veteran, and may not 

directly correlate with all of the 

activities a caregiver completes, and 

subsequently may not directly correlate 

with the actual number of hours that a 

caregiver spends completing such 

activities. 

Moreover, we believe that it could 

jeopardize the health and welfare of the 

eligible veteran to require or expect a 

Primary Family Caregiver to work more 

than 40 hours per week. A significant 

factor in the passage of the Caregivers 

Act was the amount of work and stress 

that caregiver’s experience. The Program 

of Comprehensive Assistance for Family 

Caregivers includes supplemental 

home-based care and respite care as 

resources for an eligible veteran who 

requires more than 40 hours per week 

of care. Neither the law, nor sound VA 

policy, contemplates overburdening 

caregivers by expecting them to provide 

care for more than 40 hours per week. 

Hourly Wage Rate 

A commenter stated that setting of the 

hourly wage rate at the 75th percentile 

of the rate established by the Bureau of 

Labor Statistics (BLS) for a home health 

aide (varying by geography) is 

inadequate compensation. Specifically, 

the commenter argued that a wage rate 

at the 90th percentile would more 

appropriately reflect the degree of 

complex services caregivers provide. As 

stated by the commenter, ‘‘the 

caregiving needs of many within the 

population of young severely wounded 

veterans are far more extensive than the 

kind of routine care described by BLS, 

and often cannot be met by a home 

health aide. In describing her role as a 

caregiver, one [caregiver] explained, ‘I 

am my husband’s accountant; 

occupational therapist; physical 

therapist; driver; mental health 

counselor; and life coach.’ ’’ We do not 

make any changes based on this 

comment. First, the commenter urges 

VA to provide compensation for 

services that are beyond the scope of 

expertise of a home health aide and 

should not otherwise be provided by a 

home health aide (e.g. physical and 

occupational therapy, mental health 

counseling), despite the mandate in the 

Caregivers Act that, ‘‘to the extent 

practicable,’’ VA must ensure that the 

stipend amount ‘‘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.’’ 38 U.S.C. 1720G(a)(3)(C)(ii). 

We interpret section 1720G(a)(3)(C)(ii) 

to clearly mandate that stipend amounts 

should be relative to what a typical 

home health aide is paid, and 

subsequently that Family Caregivers 

should not be expected to provide 

services that home health aides do not 

typically provide. We do not find that 

the law can reasonably be interpreted to 

require stipend compensation for the 

provision of specialty clinical care or 

rehabilitative treatment, or any other 

care beyond that which can be provided 

by a typical home health aide, or by a 

Family Caregiver who may have no 

additional training beyond that 

provided by VA under § 71.25(d). 

Second, we believe Family Caregivers 

provide assistance within a range of 

complexity, given the level of assistance 

the individual veteran or servicemember 

is assessed to need and the moderate 

level of training and prequalification 

required before VA will designate a 

family member as a Family Caregiver. 

Consequently, the wage rate was set at 

the 75th percentile, which we continue 

to believe most accurately reflects the 

hourly rate of a home health aide for 

providing assistance with ADLs and 

supervision/protection needs, as they 

are defined in § 71.15. As we stated in 

the interim final rule, wage rates vary 

for home health aides depending on 

their experience and education, as well 

as economic factors in each geographic 

area. We believe the 75th percentile 

most accurately meets the intent of 

section 1720G given this range of wage 

rates, and is reasonable as a middle 

point between the 50th and 90th 

percentiles as identified by BLS for 

geographic areas. We do not believe the 

setting of the rate at the 75th percentile 

significantly hinders an eligible 

veteran’s opportunities to receive the 

assistance they require. 

The regulation text in the interim 

final rule at § 71.40(c)(4)(v), however, 

did not make clear that VA uses this 

75th percentile per geographic area as a 

factor in calculating the stipend. We 

therefore make changes to § 71.15 and 

§ 71.40(c)(4)(v) to clarify this point. 

We also make clarifying changes to 

§ 71.15 and § 71.40(c)(4)(v) unrelated to 

public comments to better describe how 

the Bureau of Labor Statistics (BLS) 

wage rates and Consumer Price Index 

(CPI) are used in calculating stipend 

amounts. Because BLS wage rates are 

generally based on the previous year’s 

data, the interim final rule factored in a 

cost of living adjustment based on the 

CPI to calculate the current year’s 

hourly wage rate. At the time the 

interim final rule was drafted, BLS 

provided 2009 wage rates. Shortly 

thereafter, BLS published its 2010 wage 

rates, and VA began issuing stipends 

based on the 2010 BLS wage rates 

adjusted by the CPI. The BLS’s 2011 

wage rates, however, reflected some 

dramatic decreases in the hourly wages 

of home health aides in various 

geographic areas of the United States. 

Application of the 2011 BLS hourly 

wage rate for all Primary Family 

Caregivers’ stipends would have 

resulted in decreases in monthly 

stipend payments for 34% of approved 

Primary Family Caregivers, the largest 

decrease being over $6.00 per hour. We 

never intended that Primary Family 

Caregivers should be subject to 

decreased stipend payments from year 

to year due to decreased BLS rates or a 

decreased CPI rate. Therefore, we clarify 

in this final rule that VA’s intent is to 

use the most recent data from the BLS 


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on hourly wage rates for home health 

aides as well as the most recent 

Consumer Price Index for All Urban 

Consumers (CPI–U), unless using this 

most recent data for a geographic area 

would result in an overall BLS and CPI– 

U combined rate that is lower than that 

applied in the previous year for the 

same geographic area. If using this most 

recent data would result in a BLS and 

CPI–U combined rate for a geographic 

area that is lower than that applied in 

the previous year, the BLS hourly wage 

rate and CPI–U that was applied in the 

previous year for that geographic area 

will be utilized to calculate the Primary 

Family Caregiver stipend. We note that 

the CPI–U has been and will continue 

to be used in the stipend calculation 

because its representative population 

coverage is more comprehensive than 

that of the Consumer Price Index for 

Urban Wage Earners and Clerical 

Workers (CPI–W), and therefore the 

CPI–U is more representative of Primary 

Family Caregivers around the country. 

(The CPI–U covers approximately 87 

percent of the total population, and the 

CPI–W covers approximately 32 percent 

of the population and is a subset of the 

CPI–U population). More specifically, 

the annual CPI–U as used in the stipend 

calculation is a national average, based 

on a U.S. city average for the 

expenditure category ‘‘care of invalids 

and elderly at home.’’ This expenditure 

category is most representative, within 

the more general ‘‘medical care’’ 

expenditure category, of the type of care 

provided by most Family Caregivers. 

To clarify this calculation 

methodology, we add a new definition 

of the term ‘‘combined rate’’ to § 71.15, 

to refer to the BLS hourly wage rate for 

home health aides at the 75th percentile 

in the eligible veteran’s geographic area 

of residence, multiplied by the CPI–U. 

This definition will further clarify that 

the combined rate will be determined 

for each geographic area on an annual 

basis by comparing (1) the product of 

the most recent BLS hourly wage rate 

for home health aides at the 75th 

percentile in the geographic area and 

the most recent CPI–U, with (2) the 

combined rate applied for the 

geographic area in the previous year. 

Whichever of these is higher will 

represent the combined rate for that 

geographic area that year. We make 

corresponding revisions to the text of 

§ 71.40(c)(4)(v) to reference the term 

‘‘combined rate’’ as it is defined in 

§ 71.15. 

The combined rate will apply for the 

entire affected geographic area, such 

that existing Primary Family Caregivers 

and new Primary Family Caregivers in 

a geographic area will receive a stipend 

calculated with the same combined rate, 

even though new Primary Family 

Caregivers would not be adversely 

affected by a lower BLS hourly wage 

rate or a lower CPI–U than the previous 

year. Using one combined rate for both 

new and existing Primary Family 

Caregivers in the same geographic area 

will ensure equity in stipend payments 

between Primary Family Caregivers of 

eligible veterans requiring the same 

number of hours of personal care 

services, and permits VA to avoid costly 

and cumbersome adjustments that 

would be required if we allowed 

multiple, different combined rates to 

apply in the same geographic area— 

costs that were not considered in the 

impact analysis associated with this 

regulation, and burdens that were never 

intended to be a consequence of the 

interim final rule. Under this 

methodology, the number of hours of 

caregiver assistance required would be 

the only basis for different stipend 

amounts in each particular geographic 

area, and no Primary Family Caregiver 

will see downward fluctuations in their 

stipend amount from year to year unless 

the number of required hours of 

assistance decreases or the eligible 

veteran moves to a geographic area with 

a lower combined rate. This revision 

ensures that Primary Family Caregivers 

will not unexpectedly lose monetary 

assistance upon which they had come to 

rely based on their participation in the 

Program of Comprehensive Assistance 

for Family Caregivers. This is the fairest 

result for all Family Caregivers, and best 

effectuates our original intent. 

Moreover, this revision is consistent 

with the statutory requirement at 38 

U.S.C. 1720G(a)(3)(C)(ii) to ensure that 

stipends are ‘‘not less than’’ the monthly 

amount a commercial home health 

entity would pay in the geographic area. 

We are publishing this revision as 

part of this final rulemaking because 

prior notice and comment is not 

required. This revision is consistent 

with the calculation methodology set 

forth in the interim final rule because 

VA still uses the BLS rate per 

geographic area and multiplies that rate 

by the CPI–U (among other factors) to 

calculate the stipend amount. This 

revision merely ensures that Primary 

Family Caregivers’ stipends will not 

decrease simply because the BLS wage 

rate for their geographic area or the CPI– 

U has decreased. Because these changes 

effectuate our original intent, are 

consistent with the governing statutory 

authority, serve only to benefit both 

Primary Family Caregivers and VA, and 

cannot be applied in a manner 

detrimental to the public, a new notice 

and comment period is not necessary. 

Expansion of Symptoms Considered in 

‘‘Supervision or Protection’’ Categories 

in § 71.15 

One commenter argued that VA 

should expand the listed reasons an 

individual may require supervision or 

protection in § 71.15 (in the definition 

of ‘‘[n]eed for supervision or protection 

based on symptoms or residuals of 

neurological or other impairment or 

injury’’), to ensure that symptoms of 

depression, anxiety disorder, and posttraumatic stress disorder (PTSD) were 

included, and thereby to ensure that 

these disorders were considered as 

qualifying injuries under this rule. The 

commenter acknowledged that the 

current criteria of ‘‘[s]elf regulation,’’ 

‘‘[d]ifficulty with sleep regulation,’’ and 

‘‘[s]afety risks’’ in § 71.15 are criteria 

that may be met by veterans suffering 

from PTSD or severe depression, and 

thus that such veterans could be eligible 

for a Family Caregiver (assuming all 

other eligibility requirements are met). 

However, the commenter also advocated 

for additional criteria such as 

‘‘significant avoidant behaviors’’ for 

someone with PTSD, or ‘‘fear of leaving 

the home’’ and related fearfulness 

symptoms experienced in conjunction 

with anxiety disorders. 

We acknowledge that a significant 

number of post-9/11 veterans suffer 

from PTSD, anxiety disorders, and 

depression, which may create a need for 

personal care services. We also 

acknowledge that the behaviors 

described by the commenter may be 

present in this veteran population. 

However, we disagree that the current 

regulation does not adequately account 

for these veterans and servicemembers 

in the existing eligibility criteria. We 

therefore do not make any substantive 

changes. 

The currently listed symptoms in 

§ 71.15 pertaining to the need for 

‘‘supervision or protection’’ are 

adequate to ensure eligibility for 

veterans and servicemembers with these 

disorders and to ensure that Primary 

Family Caregivers of eligible individuals 

with these disorders receive a monthly 

stipend comparable to the stipend paid 

to Primary Family Caregivers of eligible 

individuals whose need is based on 

other types of injuries. As discussed in 

the interim final rule and as is clear by 

the regulations themselves, the Program 

of Comprehensive Assistance for Family 

Caregivers seeks to train Family 

Caregivers to provide specific services 

to seriously injured eligible veterans in 

a home environment. It is not designed 

to compensate caregivers of veterans 


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and servicemembers simply because the 

veteran or servicemember has been 

injured or suffers from lasting effects of 

an injury that, while serious and 

disruptive, does not rise to the level of 

creating a need for protection or 

supervision. We do not minimize the 

impact of any symptoms suggested by 

the commenter. However, we cannot 

agree that a veteran or servicemember 

should be eligible for a Family 

Caregiver, or that a Family Caregiver’s 

stipend should be increased, based on 

the veteran or servicemember having 

symptoms like avoidant behavior, 

unless those symptoms establish 

impairment that meets the statutory 

criterion of a need for protection or 

supervision. For example, a veteran or 

servicemember whose psychological 

disorder produces significant avoidant 

behavior requires mental health care but 

does not require a compensated 

caregiver, unless that avoidant behavior 

poses a safety risk, affects the veteran’s 

or servicemember’s ability to plan or 

organize, causes delusions, or results in 

one of the other criteria under ‘‘[n]eed 

for supervision or protection . . .’’ in 

§ 71.15 (or if it affects the veteran’s or 

servicemember’s ability to perform 

ADLs). All of the symptoms listed under 

‘‘[n]eed for supervision or protection 

. . .’’ in § 71.15 strongly indicate that an 

individual actually requires supervision 

or protection, and the list should not be 

expanded to include symptoms that are 

serious and that may require medical 

intervention, but do not require 

assistance from a Family Caregiver to 

provide supervision or protection. 

We make one minor non-substantive 

correction to the regulation text in the 

definition of ‘‘[n]eed for supervision or 

protection based on symptoms or 

residuals of neurological or other 

impairment or injury’’ in § 71.15, by 

removing the word ‘‘and’’ in paragraph 

(6) of the definition, and replacing it 

with the word ‘‘or.’’ This clarifies that 

a need for supervision or protection may 

be based on ‘‘any of the following 

reasons’’ under paragraphs (1)–(7) in 

that definition. See 38 CFR 71.15. This 

clarification is consistent with the clear 

language of § 71.15, and does not create 

any new restrictions. 

Validity and Reliability of the Criteria in 

§ 71.15 as an Assessment Instrument, 

and of the Scoring Methodology in 

§ 71.40(c)(4)(iii) 

We received several comments that 

the activities and symptoms listed in 

§ 71.15 do not accurately assess the 

number of caregiver hours required for 

provision of personal care services. 

There were several bases offered for 

these comments; however, we do not 

make any changes. 

First, commenters stated that the 

listed activities and symptoms do not 

comprise a reliable or valid clinical 

assessment because they are derived 

from three different clinical 

assessments, the Katz Basic Activities of 

Daily Living Scale (Katz), the UK 

Functional Independence Measure and 

Functional Assessment Measure 

(FIM+FAM), and the Neuropsychiatric 

Inventory (NPI). Commenters asserted 

that though each of these assessments 

separately are known to be valid and 

reliable measuring instruments, taking 

portions from each to create a new scale 

does not then make VA’s criteria in 

§ 71.15 reliable or valid. Instead, it was 

suggested by a commenter that VA 

administer each of these three 

assessments separately. 

These comments may be based on a 

misunderstanding of the purposes of the 

applicable definitions in § 71.15. The 

criteria listed as ADLs or as establishing 

the need for supervision or protection 

serve two purposes. First, if any one of 

those criteria are met, a veteran or 

servicemember may be found under 

§ 71.20(c)(1) or (2) to be in need of 

personal care services and thus, to be 

eligible for a Family Caregiver (if other 

eligibility criteria are met). Second, 

meeting one or more of those criteria 

establishes that the Primary Family 

Caregiver of an eligible veteran will be 

eligible to receive a stipend in 

recognition that the caregiver may in 

fact be providing services for which VA 

would otherwise need to hire a 

professional home health aide. It is 

unclear whether the commenters assert 

that the criteria under these definitions 

in § 71.15 are inappropriate for the first, 

second, or both of these purposes. 

We use criteria from the three 

assessment tools described above 

because these are criteria that are 

typically used in considering a patient’s 

level of impairment; we are not 

suggesting that our regulations be used 

as a substitute for these tools when the 

tools are being used for their intended 

purposes in the context of the treatment 

provided to an eligible veteran. At the 

same time, none of these three 

assessment tools are designed to 

identify or measure dependence in 

activities that would specifically render 

a veteran or servicemember in need of 

a caregiver who is not a medical 

professional. Nor are any of the three 

assessment tools designed to determine 

those activities for which a stipend 

ought to be provided to a Primary 

Family Caregiver providing certain care 

in the home. Using the three assessment 

tools in their original design would not, 

therefore, serve either of the purposes of 

the criteria listed in § 71.15 (i.e., to 

determine which veterans and 

servicemembers are in need personal 

care services and level of dependence), 

and we make no changes based on these 

comments. We note that there were 

many comments concerning the 

addition of new criteria, and we have 

addressed these comments elsewhere in 

this rulemaking. 

In addition, the commenters argued 

that VA has not adequately tested the 

scoring methodology in § 71.40(c)(4)(iii) 

to ensure that the actual amount and 

degree of personal care services will be 

captured for purposes of the stipend 

calculation. Specifically, commenters 

asserted that the aggregate scoring in 

§ 71.40(c)(4)(iii)–(iv) inaccurately 

creates a presumption of an individual’s 

need, and does not appropriately 

account for the actual time required to 

provide caregiver assistance. We 

concede that we did not have an 

opportunity to field test this formula 

prior to implementation of the interim 

final rule. If, in the future, we determine 

that the formula is inadequate, we will 

make necessary regulatory changes. At 

this time, we do not believe that 

changes are required. The current 

scoring methodology is broadly 

designed to ensure that an eligible 

veteran does not have to be rated as 

fully dependent in a majority of the 14 

criteria in § 71.15 to receive the full 

stipend amount. In fact, an eligible 

veteran’s need for personal care services 

can be relatively minor, and yet a 

stipend amount will still be provided. 

For example, the Primary Family 

Caregiver of an eligible veteran who 

scores a ‘‘1’’ in the category of dressing, 

which means that the eligible veteran 

can perform 75 percent or more of that 

task independently, and who scores a 

‘‘0’’ in all other categories would 

receive, under § 71.40(c)(4)(iv)(C), a 

stipend amount based on the eligible 

veteran requiring 10 hours of caregiver 

assistance per week—which is one 

fourth of the total number of hours that 

can be authorized under 

§ 71.40(c)(4)(iv). 

One commenter additionally asserted 

that the aggregate scoring system in 

§ 71.40(c)(4)(iii) is unfair to those 

eligible veterans who may only rate in 

a few ‘‘supervision and protection’’ 

categories, but who nonetheless may 

require a full time caregiver. The 

commenter further suggested that the 

‘‘supervision and protection’’ categories 

should be weighed more heavily in the 

aggregate scoring, so that an eligible 

veteran who may rate in only one of 

these categories could qualify for a full 

time caregiver. The commenter 


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provided examples in support of this 

assertion. For instance, one example 

described a veteran diagnosed with 

severe depression who was able to 

perform all ADLs, and whose symptoms 

included ‘‘utter lack of energy, difficulty 

in even getting out of bed or 

concentrating on tasks, and feelings of 

hopelessness.’’ This example further 

posited that because the veteran’s 

symptoms were not controlled by 

medication the veteran in turn required 

‘‘virtually full time watch’’ from his 

family members to ensure he did not 

‘‘attempt to harm himself.’’ In this 

scenario, the commenter surmised that 

the veteran would rate as a ‘‘4’’ (needing 

total assistance) for three protection/

supervision categories under § 71.15: 

safety risk, self regulation, and difficulty 

with planning and organizing. The 

commenter stated that the overall rating 

of ‘‘12’’ only presumes 10 hours per 

week of caregiver assistance, and that 

the stipend amount for 10 hours was too 

low to support a caregiver who must 

provide ‘‘virtually full time watch’’ to 

protect the veteran. While the 

commenter would use this scenario to 

show that a full time caregiver is 

needed, we do not agree that the 

protection or supervision categories 

should be weighted differently than the 

ADL categories, such that dependence 

in three supervision or protection 

categories (or even in a single protection 

or supervision category as used in 

another example by the commenter) 

would presume the full stipend amount. 

In fact, we find that the circumstances 

described in the commenter’s example 

above in support of this assertion depict 

a scenario that is arguably unsafe for the 

veteran. If a veteran requires ‘‘virtually 

full time watch’’ to ensure that they do 

not harm themselves, an in-home care 

setting may not be the most appropriate 

level of care. The Program of 

Comprehensive Assistance for Family 

Caregivers is not designed to train 

Family Caregivers to the same levels as 

professional clinical care providers who 

provide continuous 24-hour, seven day 

a week support, and such providers 

with expertise in mental health would 

be the only individuals qualified to 

attempt to prevent self-harm. 

Additionally, we believe that weighing 

the supervision/protection categories 

more heavily than the ADL categories is 

unfair for those eligible veterans whose 

stipend amounts would be based solely 

on their need for assistance with ADLs. 

Retroactive Provision of Benefits 

Multiple commenters asserted that 

VA unnecessarily delayed the 

implementation of the Program of 

Comprehensive Assistance for Family 

Caregivers, which placed undue stress 

on an already strained population. 

These commenters argued that VA 

could mitigate this delay by 

retroactively providing Family Caregiver 

benefits. Particularly, one commenter 

asserted that VA should make all 

applicable Family Caregiver benefits 

effective retroactive to May 5, 2010. We 

do not have the authority to make this 

change. The Caregivers Act specifically 

provided for an effective date for the 

caregiver programs under 38 U.S.C. 

1720G of January 30, 2011. See Pub. L. 

111–163, title I, section 101(a)(3)(A) 

(stating that the amendments made by 

this subsection shall take effect ‘‘270 

days after the date of the enactment’’). 

Another commenter stated that 

stipend payments specifically should be 

retroactively provided to Family 

Caregivers from the intended effective 

date of the 38 U.S.C. 1720G, January 30, 

2011. We regret that our program, while 

authorized as of January 2011, did not 

actually become operational until May 

2011. The Caregivers Act established an 

unprecedented set of benefits to be 

administered to eligible veterans and 

non-veterans, as well as intricate 

eligibility criteria which required VA to 

promulgate regulations, a time intensive 

process, before we could legally provide 

stipend payments. 

Currently, the stipend is paid monthly 

for personal care services that the 

Primary Family Caregiver provided in 

the prior month. Benefits due prior to 

designation of the Primary Family 

Caregiver, based on the date of 

application, will be paid retroactive to 

the date that the joint application is 

received by VA or the date on which the 

eligible veteran begins receiving care at 

home, whichever is later. While we 

acknowledge that the earliest date VA 

began accepting caregiver applications 

was after the effective date of 38 U.S.C. 

1720G, we cannot provide stipend 

payments retroactive to that effective 

date for all current Primary Family 

Caregivers. This would create an unfair 

advantage for those who filed 

applications later than others, between 

the period of May 5, 2011, and the 

present. 

Revocation of a Family Caregiver 

Under § 71.45(a), a Family Caregiver 

may request a revocation of caregiver 

status in writing which provides the 

date of revocation, and all Family 

Caregiver benefits will continue until 

the date of revocation. VA may further 

assist the revoking Family Caregiver in 

transitioning to alternative health care 

and mental health coverage, if requested 

and applicable. 38 CFR 71.45(a). One 

commenter stated that the rule should 

also require that the revoking caregiver 

provide notice to the eligible veteran, 

and should specify an amount of time 

in which the Family Caregiver must 

continue to provide assistance after 

such notice is provided (with the 

exception of cases where the revoking 

caregiver may be abusing or neglecting 

the veteran). As stated in the interim 

final rule, participation in the Program 

of Comprehensive Assistance for Family 

Caregivers is purely voluntary. 

Accordingly, VA may not compel a 

Family Caregiver to continue providing 

assistance beyond the date provided in 

the written notice to VA, nor may VA 

compel a Family Caregiver to provide 

notice to the eligible veteran. However, 

we do amend § 71.45(a) to provide that 

VA will notify the eligible veteran 

verbally and in writing when the Family 

Caregiver requests revocation. We make 

an additional change to § 71.45(b)(2) to 

remove the word ‘‘removal’’ and replace 

it with the word ‘‘revocation,’’ for 

consistency and ease of understanding. 

We also amend § 71.45(b)(3) to be 

consistent with § 71.45(c), regarding 

VA’s actions prior to making a formal 

revocation. The portion of § 71.45(b)(3) 

concerning VA actions in suspending 

Family Caregiver responsibilities now 

state that ‘‘if VA suspects that the safety 

of the eligible veteran is at risk, then VA 

may suspend the caregiver’s 

responsibilities, and remove the eligible 

veteran from the home if requested by 

the eligible veteran, or take other 

appropriate action to ensure the welfare 

of the eligible veteran, prior to making 

a formal revocation.’’ We did not intend 

to limit VA’s ability to ‘‘take other 

appropriate action to ensure the welfare 

of the eligible veteran’’ to § 71.45(c) 

only, when § 71.45(b)(3) also discusses 

what may occur if VA suspects that the 

safety of the eligible veteran is at risk. 

This is not a substantive change to 

§ 71.45(b)(3), and does not create any 

new restrictions or criteria. 

We further amend § 71.45(b)(4)(ii) and 

(b)(4)(iii) because they may be 

misconstrued to prohibit the provision 

of benefits for a revoked Family 

Caregiver for any portion of the 30 days 

after the date of revocation, if another 

Family Caregiver is designated within 

that 30 days. The intent of 

§ 71.45(b)(4)(ii) is that there should not 

be any overlap in the provision of 

benefits for a revoked Primary Family 

Caregiver and newly designated Primary 

Family Caregiver of an eligible veteran, 

and the intent of § 71.45(b)(4)(iii) is that 

a maximum of three Family Caregivers 

for an eligible veteran may be 

designated and receiving benefits at one 

time. We additionally clarify that the 


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intent of § 71.45(b)(4)(i) remains that 

benefits should be immediately 

terminated after the revocation date 

when VA determines the Family 

Caregiver has committed fraud or 

abused or neglected the eligible veteran. 

Similarly, we clarify that the intent of 

§ 71.45(b)(4)(iv) remains that benefits 

should be immediately terminated after 

the revocation date when the revoked 

individual had been living with the 

eligible veteran and moves out, or the 

revoked individual abandons or 

terminates his or her relationship with 

the eligible veteran. We note that we 

also amend § 71.45(b)(4)(ii) and 

(b)(4)(iii) to use the word ‘‘designated’’ 

versus ‘‘assigned’’ when referring to 

new replacement Family Caregivers. 

Our regulations do not define the word 

‘‘assigned,’’ and we did not intend to 

create any ambiguity with regards to the 

process whereby Family Caregivers are 

approved and designated as such by VA. 

We amend § 71.45(b)(4)(i)–(iv) to reflect 

these clarifications. These are not 

substantive revisions, and they do not 

create any new restrictions or 

interpretations. Corresponding revisions 

are made to § 71.45(b)(4) and § 71.45(c). 

Finally, we make clarifying edits to 

§ 71.45 to clarify that VA will, if 

requested and applicable, assist revoked 

Family Caregivers in transitioning to 

alternative health care coverage and 

mental health services. The word 

‘‘with’’ before the phrase ‘‘mental health 

services’’ in §§ 71.45(a), (b)(4), and (c) is 

extraneous and is removed for clarity. In 

addition, we clarify the phrase ‘‘fraud or 

abuse or neglect of the eligible veteran’’ 

in § 71.45(b)(4)(i). We amend 

§§ 71.45(a), (b)(4), (b)(4)(i), and (c) to 

reflect these clarifications. These are not 

substantive revisions, and they do not 

create any new restrictions or 

interpretations. 

CHAMPVA Benefits 

Commenters raised issues related to 

the Civilian Health and Medical 

Program of the Department of Veterans 

Affairs (CHAMPVA) benefits available 

to Primary Family Caregivers under this 

rule. One commenter asserted that a 

Primary Family Caregiver who is the 

spouse of a veteran with a serviceconnected disability rated at 100 

percent, who becomes eligible for 

CHAMPVA benefits under this rule, 

should be able to retain CHAMPVA 

benefits despite revocation of caregiver 

status if the spouse otherwise would 

qualify for CHAMPVA due to a veteran’s 

100 percent service-connected disability 

rating. We believe this comment argued 

for the retention of CHAMPVA benefits 

for this group of spouses, based on the 

independent eligibility criterion for 

CHAMPVA benefits for a spouse of a 

veteran who has been adjudicated by 

VA as having a permanent and total 

service-connected disability. See 38 CFR 

17.271(a)(1) (identifying as eligible for 

CHAMPVA benefits ‘‘[t]he spouse or 

child of a veteran who has been 

adjudicated by VA as having a 

permanent and total service-connected 

disability’’). We do not make any 

changes based on this assertion. If a 

Primary Family Caregiver is 

independently eligible for CHAMPVA 

benefits—irrespective of his or her 

status as a caregiver—then that 

caregiver’s revocation will not affect his 

or her eligibility for CHAMPVA on that 

other basis. In order to maintain 

CHAMPVA coverage post-revocation, 

VA would need to adjudicate such 

independent eligibility. We would, of 

course, assist the revoked family 

member in this process during the 

applicable grace period or as otherwise 

provided by § 71.45. However, we note 

that a veteran’s ‘‘100 percent’’ disability 

rating does not necessarily make that 

veteran’s spouse eligible for CHAMPVA 

benefits under § 17.271(a)(1). Though a 

veteran’s 100 percent disability rating is 

considered a ‘‘total’’ disability rating, it 

is not necessarily considered a 

‘‘permanent’’ disability rating. We 

clarify this due to the commenter’s 

example of a ‘‘100 percent’’ disability 

rating. 

To the extent that the commenter may 

believe that Family Caregivers who are 

eligible solely based on their status as a 

caregiver should retain eligibility for 

CHAMPVA even after their status is 

revoked, we disagree. Under 38 U.S.C. 

1720G(a)(3)(A)(ii)(IV), VA must provide 

certain Primary Family Caregivers with 

medical care under 38 U.S.C. 1781. VA 

administers section 1781 through the 

CHAMPVA program and its 

implementing regulations. Section 102 

of the Caregivers Act added paragraph 

(4) under subsection (a) of section 1781 

to expand CHAMPVA eligibility to any 

‘‘individual designated as a primary 

provider of personal care services under 

[38 U.S.C. 1720G(a)(7)(A)] . . . who is 

not entitled to care or services under a 

health-plan contract (as defined in [38 

U.S.C. 1725(f)]) . . . [who is] not 

otherwise eligible for medical care 

under chapter 55 of title 10.’’ Thus, for 

individuals eligible for CHAMPVA 

based solely on their status as a Primary 

Family Caregiver, VA is authorized to 

provide CHAMPVA only for the family 

member’s duration as a Primary Family 

Caregiver. 

An additional comment was that 

CHAMPVA benefits should be 

retroactive, first to January 31, 2011, for 

all currently designated Primary Family 

Caregivers, and then to the date a 

caregiver application was submitted for 

all future Primary Family Caregivers. 

First, we note that all Primary Family 

Caregiver benefits are effective as of the 

date the signed joint application is 

received by VA (or the date on which 

the eligible veteran begins receiving care 

at home, if later), if the application is 

approved, to include CHAMPVA 

benefits. This means that, in practice, an 

individual who receives private medical 

care prior to being designated as a 

Primary Family Caregiver after his or 

her joint application is received by VA, 

and who was not already entitled to care 

or services under a health-plan contract 

or eligible for medical care under 

chapter 55 of title 10, will, once 

approved and designated and 

determined eligible for CHAMPVA, be 

able to request reimbursement for that 

medical care retroactive to the date the 

joint application was received by VA. 

Claims from Primary Family Caregivers 

for such retroactive reimbursement for 

medical care are subject to the same 

procedural requirements imposed by 

CHAMPVA regulations for all 

CHAMPVA beneficiaries. See 38 CFR 

17.272 et seq. 

However, VA cannot provide such 

reimbursement for private medical care 

retroactive to January 30, 2011, for the 

same reasons that we will not provide 

stipend payments retroactive to any date 

that is prior to the actual date the joint 

application is received by VA. 

One commenter stated that a Primary 

Family Caregiver’s eligibility for 

CHAMPVA should not only be 

considered when they are first 

designated as a caregiver, but that a 

Primary Family Caregiver may enroll in 

CHAMPVA at any time after having 

begun to serve as a Primary Family 

Caregiver, for example, should they lose 

other health coverage after designation 

as a Primary Family Caregiver. This is 

the correct interpretation of 

§ 71.40(c)(3), which states that ‘‘Primary 

Family Caregivers are to be considered 

eligible for enrollment in the Civilian 

Health and Medical Program of the 

Department of Veterans Affairs 

(CHAMPVA), unless they are entitled to 

care or services under a health-plan 

contract.’’ We do not make any changes 

based on this comment because the 

commenter properly interpreted the rule 

and we do not see any inherent 

ambiguity. We note, however, that the 

commenter’s additional assertion that 

the wording of § 71.40(c)(3) is vague and 

weakens the CHAMPVA eligibility 

provision by including the phrase ‘‘to be 

considered’’ is addressed by the removal 

of that phrase from the rule. Section 

71.40(c)(3) is further clarified by adding 


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reference to the statutory authority for 

CHAMPVA (38 U.S.C. 1781), which 

specifically identifies Primary Family 

Caregivers as eligible for CHAMPVA. 

Mental Health Services 

One commenter expressed confusion 

related to counseling and other mental 

health services available to Family 

Caregivers, and further requested that it 

be more clearly stated in the rule that 

Family Caregivers may receive 

counseling and other services 

independent of whether those services 

are provided in connection with the 

treatment of a disability for which the 

veteran is receiving treatment from VA. 

Under §§ 71.40(b)(5) and 71.40(c)(1), all 

Family Caregivers may receive 

‘‘[c]ounseling, which . . . includes 

individual and group therapy, 

individual counseling, and peer support 

groups.’’ We do not specify in 

§§ 71.40(b)(5) or 71.40(c)(1) that such 

counseling must be ‘‘in connection with 

the treatment of a disability for which 

the veteran is receiving treatment 

through VA,’’ which is the criteria that 

General Caregivers must meet to receive 

certain counseling and other mental 

health services under § 71.50(a). As 

explained in the interim final 

rulemaking, counseling for Family 

Caregivers may be provided for reasons 

not in connection with the treatment of 

a veteran, unlike the ‘‘[c]ounseling and 

other services’’ provided to General 

Caregivers under §§ 71.40(a)(3) and 

71.50(a). See 76 FR 26153, May 5, 2011 

(explaining the differences in statutory 

authorities to provide counseling to 

Family Caregivers versus to General 

Caregivers, and the subsequent 

differences in eligibility requirements). 

We amend § 71.40(b)(5) to make clear 

that counseling provided to Family 

Caregivers does not have to be in 

connection with the treatment of a 

disability for which the eligible veteran 

is receiving treatment from VA. The 

commenter must understand as well 

that because all General Caregiver 

benefits in § 71.40(a) are generally 

incorporated into the benefits listed for 

Secondary Family Caregivers by 

§ 71.40(b)(1) and for Primary Family 

Caregivers by § 71.40(c)(1), Family 

Caregivers could receive both 

counseling services defined in 

§ 71.40(b)(5), as well as those defined 

for General Caregivers in § 71.40(a)(3) 

(under § 71.50). 

Mandatory Family Caregiver Training 

To Provide Specific Treatment 

One commenter stated that VA should 

consider requiring that Family 

Caregivers, who provide personal care 

services for veterans with PTSD, receive 

training in the specific treatment 

modalities of eye movement 

desensitization and reprogramming, and 

myofascial release, to assist veterans 

with anger management and pain 

management issues. We do not make 

any changes to the rule based on these 

comments. Caregiver training as set 

forth in § 71.25(d) is designed to cover 

the essential components of home-based 

care (called ‘‘core competencies’’ in the 

rule), and prepare the caregiver to 

provide assistance with ‘‘personal care 

services’’ as that term is defined in 

section 1720G(d)(4) and § 71.15. We 

believe that all of these identified 

competencies are present to at least 

some degree in virtually all situations in 

which we will find a veteran or 

servicemember eligible for a Family 

Caregiver. If a particular eligible veteran 

presents complex challenges in any or 

all of the competencies in § 71.25(d), we 

will provide more specific training to 

the Family Caregiver. However, we 

cannot mandate by regulation training 

in very specific treatment modalities 

that may not be applicable or beneficial 

to all eligible veterans. 

Respite Care 

One commenter expressed concern 

that the rule did not clearly state that 

respite care provided for Primary 

Family Caregivers ‘‘shall be medically 

and age-appropriate and include inhome care,’’ as is required by 38 U.S.C. 

1720G(a)(3)(B). The commenter further 

stated that if the statutory requirement 

that respite care be ‘‘age-appropriate and 

include in-home care’’ is not explicitly 

stated in the rule, then VA personnel 

may erroneously advise caregivers that 

respite options are limited to VA 

nursing home placement. We note that 

the analysis of respite care costs in the 

rule assumes that ‘‘respite care will be 

primarily in-home care for 24 hours per 

day,’’ and VA does not intend to 

educate its personnel contrary to the 

rule and statutory requirements. 76 FR 

26162, May 5, 2011. However, we agree 

that § 71.40(c)(2) should be clarified to 

conform to the requirements in section 

1720G(a)(3)(B), and therefore we have 

revised § 71.40(c)(2) to indicate that 

respite care provided for Primary 

Family Caregivers ‘‘shall be medically 

and age-appropriate and include inhome care.’’ 

Beneficiary Travel 

Commenters stated that the rule does 

not clearly specify that Family 

Caregivers are eligible for beneficiary 

travel benefits, and does not clearly 

specify the scope of those travel 

benefits. Beneficiary travel under 38 

CFR part 70 is authorized for Family 

Caregivers in § 71.25(d) and 

§ 71.40(b)(6). Section 71.40(b)(6) states 

that Family Caregivers ‘‘are to be 

considered eligible for beneficiary travel 

under 38 CFR part 70.’’ Commenters 

expressed concern that the phrase ‘‘are 

to be considered’’ is vague and 

ambiguous and suggested that the 

phrase could be used to exclude Family 

Caregivers who are eligible for 

beneficiary travel under section 104 of 

Public Law 111–163. This is not VA’s 

intent; § 71.40(b)(6) is therefore 

amended to remove the phrase ‘‘to be 

considered.’’ 

In addition, we believe the language 

in § 71.40(b)(6) should be revised to 

clarify the scope of benefits authorized 

under 38 U.S.C. 111(e)(2), as added by 

section 104 of Public Law 111–163. 

Section 111(e)(2) of title 38, U.S.C., 

states: ‘‘Without regard to whether an 

eligible veteran entitled to mileage 

under this section for travel to a 

Department facility for the purpose of 

medical examination, treatment, or care 

requires an attendant in order to 

perform such travel, an attendant of 

such veteran described in subparagraph 

(B) may be allowed expenses of travel 

(including lodging and subsistence) 

upon the same basis as such veteran.’’ 

38 U.S.C. 111(e)(2)(A) (emphasis 

added). This means that a veteran must 

be eligible for mileage under 38 U.S.C. 

111 in order for his or her family 

caregivers to receive travel benefits 

during the period of time in which the 

eligible veteran is traveling to or from a 

VA facility for and throughout the 

duration of the eligible veteran’s 

examination, treatment or care episode. 

We note that Family Caregivers may 

receive travel benefits for training 

purposes under § 71.25(d) without 

respect to the veteran’s eligibility for 

beneficiary travel based on the authority 

in 38 U.S.C. 1720G(a)(6)(C), which is 

not tied to 38 U.S.C. 111(e). We have 

revised the text of § 71.40(b)(6) so it 

states that ‘‘Primary and Secondary 

Family Caregivers are eligible for 

beneficiary travel under 38 CFR part 70 

if the eligible veteran is eligible for 

beneficiary travel under 38 CFR part 

70.’’ 

Commenters also expressed concern 

that Family Caregivers would be denied 

benefits based on language in the 

supplementary information to the 

interim final rule that beneficiary travel 

would be available ‘‘subject to any 

limitations or exclusions under [38 CFR] 

part 70,’’ the regulations governing VA’s 

beneficiary travel benefits (76 FR 26152, 

May 5, 2011), and that VA has not 

revised its beneficiary travel regulations 

to include Family Caregivers among 

those who are eligible persons under 


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§ 70.10. Our statement that the 

provision of beneficiary travel is subject 

to the limitations in part 70 does not 

appear in regulation, and we do not 

make any changes based on this 

comment. However, we clarify that the 

purpose of that statement was to express 

that Family Caregivers receiving 

beneficiary travel must comply with the 

procedural requirements and 

restrictions in part 70, not to impose 

new restrictions that do not apply to any 

other applicants for beneficiary travel 

benefits. Section 111(e)(2) of title 38, 

U.S.C., as amended by section 104 of the 

Caregivers Act, states that Family 

Caregivers ‘‘may be allowed expenses of 

travel . . . upon the same basis as [the] 

veteran’’ who is traveling for purposes 

of medical examination, treatment, or 

care; it does not provide an independent 

right to beneficiary travel benefits that 

would not be subject to the procedures 

established in 38 CFR part 70, which are 

applicable to all individuals seeking 

beneficiary travel benefits. Travel 

benefits under 38 U.S.C. 1720G(a)(6)(C) 

for purposes of Family Caregiver 

training were also linked to 38 CFR part 

70 for ease of administering the 

benefits—instead of establishing a 

separate program of travel benefits for 

training purposes. However, we reiterate 

that for purposes of Family Caregiver 

training, a veteran’s independent 

eligibility under 38 CFR part 70 is not 

relevant. 

Another commenter cited anecdotal 

reports that some VA personnel have 

not properly understood the scope of 

beneficiary travel benefits offered to 

Family Caregivers. We note that this is 

a new legal provision, and concede that 

some beneficiary travel authorizers may 

not have been adequately trained at the 

time that the commenter received the 

anecdotal reports. We regret this, but 

note that we are currently conducting 

formal trainings in VA facilities to 

educate VA personnel on Family 

Caregiver eligibility for beneficiary 

travel benefits, consistent with section 

104 of Public Law 111–163. Training, 

and not regulatory revision, is required 

to address this problem. 

Finally, we note that we are currently 

in the process of drafting amendments 

to part 70 that will clearly state that 

Family Caregivers may receive 

beneficiary travel benefits (under 38 

U.S.C. 111(e)(2) and under 38 U.S.C. 

1720G(a)(6)(C)) in the same manner, and 

subject to the same procedural 

requirements and limitations, as any 

individual currently identified as 

eligible in 38 CFR 70.10. In the interim, 

38 U.S.C. 111(e), as amended by section 

104 of the Caregiver Act, authorizes VA 

to provide to Family Caregivers the 

‘‘expenses of travel (including lodging 

and subsistence)’’ during the period of 

time in which the eligible veteran is 

traveling to and from a VA facility for 

the purpose of medical examination, 

treatment, or care, and the duration of 

the medical examination, treatment, or 

care episode for the eligible veteran. VA 

will rely upon that statutory authority as 

well as 38 U.S.C. 1720G(a)(6)(C) and our 

regulations in part 70 as authority to 

provide beneficiary travel benefits to 

eligible Family Caregivers. 

Effective Date of Benefits 

Section 71.40(d)(1) indicates that 

Family Caregiver benefits are effective 

as of the date that the signed joint 

application is received by VA or the 

date the eligible veteran begins 

receiving care at home (whichever is 

later), but that these benefits are not 

provided until a Family Caregiver has 

been designated. Family Caregivers 

must complete all required training and 

instruction to become so designated no 

later than 30 days after the date the joint 

application was submitted or, if the 

application was placed on hold for a 

GAF assessment, 30 days after the hold 

has been lifted. 

Through implementing § 71.40(d)(1), 

VA has discovered that the 30-day 

timeframe is in many instances too brief 

to allow Family Caregivers to complete 

all required training. To avoid the delay 

that starting a new application would 

create, we are amending § 71.40(d)(1) to 

extend this timeframe to 45 days, and to 

include a mechanism to waive the need 

for a new application beyond 45 days in 

certain instances. VA may extend the 

45-day period for up to 90 days after the 

date the joint application was submitted 

or, if the application has been placed on 

hold for a GAF assessment, for up to 90 

days after the hold has been lifted. Such 

an extension may either be based on 

training identified under 38 CFR 

71.25(d) that is still pending 

completion, or hospitalization of the 

eligible veteran. This regulatory change 

is a liberalization of a requirement, and 

does not add any restrictions for those 

otherwise eligible veterans and Family 

Caregivers with regards to the effective 

date of benefits. 

Non-Substantive Change to § 71.30(b)(2) 

Section 71.30(b)(2) provides that a 

‘‘covered veteran’’ for purposes of the 

Program of General Caregiver Support 

Services is a veteran who is enrolled in 

the VA health care system and needs 

personal care services because the 

veteran ‘‘[n]eeds supervision or 

protection based on symptoms or 

residuals of neurological care or other 

impairment or injury.’’ The word ‘‘care’’ 

in § 71.30(b)(2) is extraneous and is 

removed to be consistent with the 

relevant statutory provision related to 

covered veterans in the Program of 

General Caregiver Support Services, 38 

U.S.C. 1720G(b)(2)(B). 

Administrative Procedure Act 

In accordance with 5 U.S.C. 553(d)(3), 

the Secretary of Veterans Affairs 

concluded that there was good cause to 

publish this rule with an immediate 

effective date. Under the interim final 

rule, Caregiver benefits have been 

provided continuously since May 5, 

2011. A delayed effective date for this 

final rule could confuse current 

Caregivers or VA employees, possibly 

leading to the misperception that 

existing Caregiver benefits will be 

interrupted during the 30-day period 

between publication of this final rule 

and the effective date. Therefore, there 

is good cause to publish this rule with 

an immediate effective date. 

Effect of Rulemaking 

Title 38 of the Code of Federal 

Regulations, as revised by this 

rulemaking, represents VA’s 

implementation of its legal authority on 

this subject. Other than future 

amendments to this regulation or 

governing statutes, no contrary guidance 

or procedures are authorized. All 

existing or subsequent VA guidance 

must be read to conform with this 

rulemaking if possible or, if not 

possible, such guidance is superseded 

by this rulemaking. 

Paperwork Reduction Act 

The interim final rule included a 

collection of information under the 

Paperwork Reduction Act (44 U.S.C. 

3501–3521) that requires approval by 

the Office of Management and Budget 

(OMB). Accordingly, under section 

3507(d) of the Act, VA submitted a copy 

of that rulemaking to OMB for review. 

OMB assigns a control number for each 

collection 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. 

In the interim final rule, we stated 

that § 71.25(a) contained collection of 

information provisions under the 

Paperwork Reduction Act of 1995, and 

we requested public comment on those 

provisions in the document published 

in the Federal Register on May 5, 2011 

(76 FR 26158). 

We did not receive any comments on 

the collection of information contained 

in the interim final rule, and this final 

rule does not change the burden and 


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number of respondents because 

eligibility criteria did not change. OMB 

approved these new information 

collection requirements associated with 

the interim final rule and assigned OMB 

control number 2900–0768. 

Regulatory Flexibility Act 

The Acting Secretary hereby certifies 

that this regulatory amendment will 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. This 

regulatory action affects individuals and 

will not affect any small entities. 

Therefore, under 5 U.S.C. 605(b), this 

rulemaking is exempt from the initial 

and final regulatory flexibility analysis 

requirements of 5 U.S.C. 603 and 604. 

Executive Order 12866 and Executive 

Order 13563 

Executive Orders 12866 and 13563 

direct 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 

12866 (Regulatory Planning and 

Review) defines a ‘‘significant 

regulatory action,’’ which requires 

review by OMB, as any regulatory action 

that is likely to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; (2) Create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency; (3) Materially alter the 

budgetary impact of entitlements, 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) Raise novel legal or policy 

issues arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in this Executive Order. 

The economic, interagency, 

budgetary, legal, and policy 

implications of this regulatory action 

have been examined, and it has been 

determined that it is an economically 

significant regulatory action under 

Executive Order 12866. VA’s impact 

analysis can be found as a supporting 

document at http://

www.regulations.gov, usually within 48 

hours after the rulemaking document is 

published. Additionally, a copy of the 

rulemaking and its impact analysis are 

available on VA’s Web site at http://

www1.va.gov/orpm/, by following the 

link for ‘‘VA Regulations Published.’’ 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

requires, at 2 U.S.C. 1532, that agencies 

prepare an assessment of anticipated 

costs and benefits before developing 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 given year. 

This rule will have no such effect on 

State, local, and tribal governments, or 

on the private sector. 

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance numbers and titles for the 

programs affected by this document are 

64.007, Blind Rehabilitation Centers; 

64.008, Veterans Domiciliary Care; 

64.009, Veterans Medical Care Benefits; 

64.010, Veterans Nursing Home Care; 

64.011, Veterans Dental Care; 64.012, 

Veterans Prescription Service; 64.013, 

Veterans Prosthetic Appliances; 64.014, 

Pension for Non-Service-Connected 

Disability for Veterans; 64.015, Sharing 

Specialized Medical Resources; 64.019, 

Veterans Rehabilitation Alcohol and 

Drug Dependence; and 64.022, Veterans 

Home Based Primary Care. 

Signing Authority 

The Secretary of Veterans Affairs, or 

designee, approved this document 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. Jose 

D. Riojas, Chief of Staff, Department of 

Veterans Affairs, approved this 

document on June 30, 2014, for 

publication. 

List of Subjects 

38 CFR Part 17 

Administrative practice and 

procedure, Alcohol abuse, Alcoholism, 

Claims, Day care, Dental health, Drug 

abuse, Foreign relations, Government 

contracts, Grant programs—health, 

Grant programs—veterans, Health care, 

Health facilities, Health professions, 

Health records, Homeless, Medical and 

dental schools, Medical devices, 

Medical research, Mental health 

programs, Nursing homes, Philippines, 

Reporting and recordkeeping 

requirements, Scholarships and 

fellowships, Travel and transportation 

expenses, Veterans. 

38 CFR Part 71 

Administrative practice and 

procedure, Caregivers program, Claims, 

Health care, Health facilities, Health 

professions, Mental health programs, 

Travel and transportation expenses, 

Veterans. 

Dated: January 5, 2015. 

William F. Russo, 

Acting Director, Office of Regulation Policy 

& Management, Office of the General Counsel, 

U.S. Department of Veterans Affairs. 

For the reasons set forth in the 

preamble, the interim final rule 

amending 38 CFR 17.38(a)(1)(vii) and 38 

CFR part 71, that was published at 76 

FR 26148 on May 5, 2011, is adopted as 

a final rule with the following changes: 

PART 71—CAREGIVERS BENEFITS 

AND CERTAIN MEDICAL BENEFITS 

OFFERED TO FAMILY MEMBERS OF 

VETERANS 

■ 1. The authority citation for part 71 

continues to read as follows: 

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

otherwise noted. 

■ 2. Amend § 71.10 by revising 

paragraphs (a) and (b) to read as follows: 

§ 71.10 Purpose and scope. 

(a) Purpose. This part implements the 

Program of Comprehensive Assistance 

for Family Caregivers, which, among 

other things, provides certain benefits to 

eligible veterans who have incurred or 

aggravated serious injuries during 

military service, and to their caregivers. 

This part also implements the Program 

of General Caregiver Support Services, 

which provides support services to 

caregivers of covered veterans from all 

eras who are enrolled in the VA health 

care system. 

(b) Scope. This part regulates the 

provision of Family Caregiver benefits 

and General Caregiver benefits 

authorized by 38 U.S.C. 1720G. Persons 

eligible for such benefits may be eligible 

for other VA benefits based on other 

laws or other parts of this title. 

* * * * * 

■ 3. Amend § 71.15 by: 

■ a. Adding the definition for 

‘‘Combined rate’’ in alphabetical order. 

■ b. In the definition for ‘‘In the best 

interest’’, removing all references to 

‘‘eligible veteran’’ and adding, in each 

place, ‘‘veteran or servicemember’’, and 

removing ‘‘Family Caregiver program’’ 

and adding, in its place, ‘‘Program of 

Comprehensive Assistance for Family 

Caregivers’’. 


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Federal Register / Vol. 80, No. 6 / Friday, January 9, 2015 / Rules and Regulations 1377 

■ c. In the definition for ‘‘Need for 

supervision or protection based on 

symptoms or residuals of neurological 

or other impairment or injury’’, 

removing ‘‘and’’ at the end of paragraph 

(6) and adding, in its place, ‘‘or’’. 

■ d. Revising the definition for ‘‘Primary 

care team’’. 

The addition and revision read as 

follows: 

§ 71.15 Definitions. 

Combined rate refers to the Bureau of 

Labor Statistics (BLS) hourly wage rate 

for home health aides at the 75th 

percentile in the eligible veteran’s 

geographic area of residence, multiplied 

by the Consumer Price Index for All 

Urban Consumers (CPI–U). The 

combined rate will be determined for 

each geographic area on an annual basis. 

For each geographic area, the combined 

rate will be the higher of: 

(1) The most recent BLS hourly wage 

rate for home health aides at the 75th 

percentile in the geographic area 

multiplied by the most recent CPI–U; or 

(2) The combined rate applied for the 

geographic area in the previous year. 

* * * * * 

Primary care team means a group of 

medical professionals who care for a 

patient and who are selected by VA 

based on the clinical needs of the 

patient. The team must include a 

primary care provider who coordinates 

the care, and may include clinical 

specialists (e.g., a neurologist, 

psychiatrist, etc.), resident physicians, 

nurses, physicians’ assistants, nurse 

practitioners, occupational or 

rehabilitation therapists, social workers, 

etc., as indicated by the needs of the 

particular patient. 

* * * * * 

§ 71.20 [Amended] 

■ 4. Amend § 71.20 by: 

■ a. In paragraph (c), removing ‘‘(based 

on a clinical determination)’’ and 

adding, in its place, ‘‘(based on a 

clinical determination authorized by the 

individual’s primary care team)’’. 

■ b. In paragraph (d), immediately 

following ‘‘A clinical determination’’, 

adding ‘‘(authorized by the individual’s 

primary care team)’’. 

■ 5. Amend § 71.25 by: 

■ a. In paragraph (c)(1)(i) parenthetical, 

immediately before ‘‘as appropriate’’, 

adding ‘‘to the extent possible and’’. 

■ b. In paragraph (d), removing 

‘‘designed by and provided through’’ 

and adding, in its place, ‘‘designed and 

approved by’’ . 

■ c. Revising paragraph (e). 

The revision reads as follows: 

§ 71.25 Approval and designation of 

Primary and Secondary Family Caregivers. 

* * * * * 

(e) Initial home-care assessment. No 

later than 10 business days after VA 

certifies completion of caregiver 

education and training, or should an 

eligible veteran be hospitalized during 

this process, no later than 10 days from 

the date the eligible veteran returns 

home, a VA clinician or a clinical team 

will visit the eligible veteran’s home to 

assess the caregiver’s completion of 

training and competence to provide 

personal care services at the eligible 

veteran’s home, and to measure the 

eligible veteran’s well being. 

* * * * * 

§ 71.30 [Amended] 

■ 6. Amend § 71.30(b)(2) by removing 

‘‘care’’. 

■ 7. Amend § 71.40 by: 

■ a. In paragraphs (b)(4), (c)(4)(iv)(A) 

through (C), and (c)(4)(v), removing all 

references to ‘‘Caregiver’’ and adding, in 

each place, ‘‘caregiver’’. 

■ b. In paragraph (b)(5), adding, at the 

end of the paragraph, ‘‘Counseling does 

not have to be in connection with the 

treatment of a disability for which the 

eligible veteran is receiving treatment 

from VA.’’ 

■ c. In paragraph (b)(6), removing ‘‘to be 

considered’’, and adding, at the end of 

the sentence, ‘‘if the eligible veteran is 

eligible for beneficiary travel under 38 

CFR part 70.’’ 

■ d. In paragraph (c)(2), adding, at the 

end of the paragraph, ‘‘Respite care 

provided shall be medically and ageappropriate and include in-home care.’’ 

■ e. Revising paragraph (c)(3). 

■ f. In paragraphs (c)(4)(iv)(A) through 

(C), removing all references to ‘‘then the 

eligible veteran is presumed to require’’ 

and adding, in each place, ‘‘then the 

caregiver will receive a stipend 

equivalent to the eligible veteran 

requiring’’. 

■ g. In paragraph (c)(4)(v), removing 

‘‘Bureau of Labor Statistics hourly wage 

for home health aides in the geographic 

area by the Consumer Price Index and 

then multiplying that total’’ and adding, 

in its place, ‘‘combined rate’’. 

■ h. Revising paragraph (d)(1). 

The revisions read as follows: 

§ 71.40 Caregiver benefits. 

* * * * * 

(c) * * * 

(3) Primary Family Caregivers are 

eligible for enrollment in the Civilian 

Health and Medical Program of the 

Department of Veterans Affairs 

(CHAMPVA) pursuant to 38 U.S.C. 

1781, unless they are entitled to care or 

services under a health-plan contract (as 

defined in 38 U.S.C. 1725(f)). 

* * * * * 

(d) * * * 

(1) Effective date. Caregiver benefits 

are effective as of the date that the 

signed joint application is received by 

VA or the date on which the eligible 

veteran begins receiving care at home, 

whichever is later. However, benefits 

will not be provided until the 

individual is designated as a Family 

Caregiver. Individuals who apply to be 

Family Caregivers must complete all 

necessary education, instruction, and 

training so that VA can complete the 

designation process no later than 45 

days after the date that the joint 

application was submitted or, if the 

application has been placed on hold for 

a GAF assessment, 45 days after the 

hold has been lifted, or a new joint 

application will be required to serve as 

the date of application for payment 

purposes. VA may extend the 45-day 

period for up to 90 days after the date 

the joint application was submitted or, 

if the application has been placed on 

hold for a GAF assessment, for up to 90 

days after the hold has been lifted. Such 

an extension may either be based on 

training identified under § 71.25(d) that 

is still pending completion, or 

hospitalization of the eligible veteran. 

* * * * * 

8. Revising § 71.45 to read as follows: 

§ 71.45 Revocation. 

(a) Revocation by the Family 

Caregiver. The Family Caregiver may 

request a revocation of caregiver status 

in writing and provide the present or 

future date of revocation. All caregiver 

benefits will continue to be provided to 

the Family Caregiver until the date of 

revocation. VA will, if requested and 

applicable, assist the Family Caregiver 

in transitioning to alternative health 

care coverage and mental health 

services. VA will notify the eligible 

veteran verbally and in writing of the 

request for revocation. 

(b) Revocation by the eligible veteran 

or surrogate. The eligible veteran or the 

eligible veteran’s surrogate may initiate 

revocation of a Primary or Secondary 

Family Caregiver. 

(1) The revocation request must be in 

writing and must express an intent to 

remove the Family Caregiver. 

(2) VA will notify the Family 

Caregiver verbally and in writing of the 

request for revocation. 

(3) VA will review the request for 

revocation and determine whether there 

is a possibility for remediation. This 

review will take no longer than 30 days. 

During such review, the eligible veteran 


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1378 Federal Register / Vol. 80, No. 6 / Friday, January 9, 2015 / Rules and Regulations 

or surrogate may rescind the request for 

revocation. If VA suspects that the 

safety of the eligible veteran is at risk, 

then VA may suspend the caregiver’s 

responsibilities, and remove the eligible 

veteran from the home if requested by 

the eligible veteran, or take other 

appropriate action to ensure the welfare 

of the eligible veteran, prior to making 

a formal revocation. 

(4) Caregiver benefits will continue 

for 30 days after the date of revocation, 

and VA will, if requested by the Family 

Caregiver, assist the individual with 

transitioning to alternative health care 

coverage and mental health services, 

unless one of the following is true: 

(i) VA determines that the Family 

Caregiver committed fraud or abused or 

neglected the eligible veteran, in which 

case benefits will terminate 

immediately. 

(ii) If the revoked individual was the 

Primary Family Caregiver, and another 

Primary Family Caregiver is designated 

within 30 days after the date of 

revocation, in which case benefits for 

the revoked Primary Family Caregiver 

will terminate the day before the date 

the new Primary Family Caregiver is 

designated. 

(iii) If another individual is 

designated to be a Family Caregiver 

within 30 days after the date of 

revocation, such that there are three 

Family Caregivers assigned to the 

eligible veteran, in which case benefits 

for the revoked Family Caregiver will 

terminate the day before the date the 

new Family Caregiver is designated. 

(iv) The revoked individual had been 

living with the eligible veteran and 

moves out, or the revoked individual 

abandons or terminates his or her 

relationship with the eligible veteran, in 

which case benefits will terminate 

immediately. 

(c) Revocation by VA. VA may 

immediately revoke the designation of a 

Family Caregiver if the eligible veteran 

or individual designated as a Family 

Caregiver no longer meets the 

requirements of this part, or if VA 

makes the clinical determination that 

having the Family Caregiver is no longer 

in the best interest of the eligible 

veteran. VA will, if requested by the 

Family Caregiver, assist him or her in 

transitioning to alternative health care 

coverage and mental health services. If 

revocation is due to improvement in the 

eligible veteran’s condition, death, or 

permanent institutionalization, the 

Family Caregiver will continue to 

receive caregiver benefits for 90 days, 

unless any of the conditions described 

in paragraphs (b)(4)(i) through (iv) of 

this section apply, in which case 

benefits will terminate as specified. In 

addition, bereavement counseling may 

be available under 38 U.S.C. 1783. If VA 

suspects that the safety of the eligible 

veteran is at risk, then VA may suspend 

the caregiver’s responsibilities, and 

remove the eligible veteran from the 

home if requested by the eligible veteran 

or take other appropriate action to 

ensure the welfare of the eligible 

veteran, prior to making a formal 

revocation. 

[FR Doc. 2015–00071 Filed 1–8–15; 8:45 am] 

BILLING CODE 8320–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

RIN 0648–XD287 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Skates Management 

in the Bering Sea and Aleutian Islands 

Management Area; Habitat Areas of 

Particular Concern 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of Agency decision. 

SUMMARY: The National Marine 

Fisheries Service (NMFS) announces the 

approval of Amendment 104 to the 

Fishery Management Plan for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area 

(FMP). Amendment 104 to the FMP 

designates six areas of skate egg 

concentration as Habitat Areas of 

Particular Concern (HAPC). The HAPC 

designations for the six areas of skate 

egg concentration in the Bering Sea and 

Aleutian Islands Management Area 

(BSAI) are intended to highlight the 

importance of this essential fish habitat 

for conservation. This action promotes 

the goals and objectives of the 

Magnuson-Stevens Fishery 

Conservation and Management Act, the 

FMP, and other applicable laws. 

DATES: The amendment was approved 

on January 5, 2015. 

ADDRESSES: Electronic copies of 

Amendment 104 to the FMP and the 

Environmental Assessment (EA) 

prepared for this action are available 

from the Alaska Region NMFS Web site 

at http://www.alaskafisheries.noaa.gov/

analyses/default.htm. 

FOR FURTHER INFORMATION CONTACT: 

Seanbob Kelly, 907–271–5195. 

SUPPLEMENTARY INFORMATION: The 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) requires that 

each regional fishery management 

council submit proposed amendments 

to a fishery management plan to NMFS 

for review and approval, disapproval, or 

partial approval by the Secretary of 

Commerce (Secretary). The MagnusonStevens Act also requires that, upon 

receiving a fishery management plan 

amendment, NMFS immediately 

publish in the Federal Register a notice 

that the amendment is available for 

public review and comment. 

The Notice of Availability for 

Amendment 104 was published in the 

Federal Register on October 8, 2014 (79 

FR 60802), with a 60-day comment 

period that ended on December 8, 2014. 

NMFS received three comment letters 

that contained five substantive 

comments during the public comment 

period on the Notice of Availability for 

Amendment 104. No changes were 

made in response to these comments. 

NMFS summarized and responded to 

these comments under Comment and 

Responses, below. 

NMFS determined that Amendment 

104 to the FMP is consistent with the 

Magnuson-Stevens Act and other 

applicable laws, and the Secretary 

approved Amendment 104 on January 5, 

2015. The October 8, 2014, Notice of 

Availability contains additional 

information on this action. No changes 

to Federal regulations are necessary to 

implement Amendment 104. 

HAPC are geographic sites that fall 

within the distribution of essential fish 

habitat (EFH) for federally-managed 

species. HAPC are areas of special 

importance that may require additional 

protection from the adverse effects of 

fishing. EFH provisions provide a means 

for the Council to identify HAPC (50 

CFR 600.815(a)(8)) in fishery 

management plans based on the rarity of 

the habitat type and at least one or more 

of the following considerations: the 

importance of the ecological function 

provided by the habitat; the extent to 

which the habitat is sensitive to humaninduced environmental disturbance or 

degradation; and whether, and to what 

extent, development activities are, or 

will be, stressing the habitat type. The 

designation of HAPC does not require 

the implementation of regulations to 

limit fishing within HAPC unless such 

measures are determined to be 

necessary. EFH provisions require that a 

Council and NMFS act to prevent, 

mitigate, or minimize any adverse 

effects from fishing, to the extent 

practicable, if there is evidence that a 

fishing activity adversely affects EFH in 

a manner that is more than minimal and 

not temporary in nature (50 CFR 


rljohnson on DSK3VPTVN1PROD with RULES