[Federal Register Volume 76, Number 87 (Thursday, May 5, 2011)]
[Rules and Regulations]
[Pages 26148-26176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10962]



[[Page 26147]]

Vol. 76

Thursday,

No. 87

May 5, 2011

Part IV





Department of Veterans Affairs





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38 CFR Parts 17 and 71



 Caregivers Program; Interim Final Rule

  Federal Register / Vol. 76, No. 87 / Thursday, May 5, 2011 / Rules 
and Regulations  

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 17 and 71

RIN 2900-AN94


Caregivers Program

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

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SUMMARY: This document promulgates Department of Veterans Affairs (VA) 
interim final regulations concerning a new caregiver benefits program 
provided by VA. This rule implements title I of the Caregivers and 
Veterans Omnibus Health Services Act of 2010, which was signed into law 
on May 5, 2010. The purpose of the new caregiver benefits program 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.

DATES: Effective Date: This rule is effective on May 5, 2011. Comments 
must be received on or before July 5, 2011.

ADDRESSES: Written comments may be submitted by email through http://www.regulations.gov; by mail or hand-delivery to Director, Regulations 
Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AN94, Caregivers Program.'' Copies of comments received will be 
available for public inspection in the Office of Regulation Policy and 
Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m. 
Monday through Friday (except holidays). Please call (202) 461-4902 for 
an appointment. In addition, during the comment period, comments may be 
viewed online through the Federal Docket Management System (FDMS) at 
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Deborah Amdur, Chief Consultant, 
Veterans Health Administration, 810 Vermont Avenue, NW., Washington, DC 
20420, 202-461-6780. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On May 5, 2010, the President signed into 
law the Caregivers and Veterans Omnibus Health Services Act of 2010, 
Public Law 111-163. 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). This rulemaking 
implements this new statutory authority.
    Veterans and servicemembers may be eligible for the Family 
Caregiver program if they incurred or aggravated a serious injury in 
the line of duty on or after September 11, 2001. We anticipate that 
roughly 3,596 veterans and servicemembers will qualify to receive 
benefits under this rule during the first year, at an estimated cost of 
$69,044,469.40 for FY2011 and $777,060,923.18 over a 5 year period. 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 Sec.  71.50; and respite care.
     Secondary Family Caregivers--All benefits and services 
available to General Caregivers; monitoring; veteran-specific 
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).
    We refer throughout these rules to the wide array of benefits 
provided to veterans and their caregivers under section 1720G using the 
term ``caregiver benefits.'' 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. 
For this reason, we have organized the regulations implementing section 
1720G in a new part 71 of title 38, U.S. Code of Federal Regulations. 
This will make the benefits easy to find, and will emphasize the unique 
nature of the program.
    VA welcomes comments on any aspect of this rule.
    We now discuss the new regulations section by section.

71.10 Purpose and Scope

    Section 71.10 establishes the purpose and scope of the new part 71, 
CFR. The purpose of this part is to implement VA's caregiver benefits 
program. Receipt of ``caregiver benefits'' under 38 CFR part 71 is 
based on an independent eligibility determination for benefits--it is 
not a barrier to, or substitute for, other benefits offered by VA. If 
you are a veteran and a caregiver to another veteran, you will not lose 
eligibility for any of your veteran benefits because you are a 
caregiver.

71.15 Definitions

    Section 71.15 provides definitions for the purposes of part 71.
    We define an ``inability to perform an activity of daily living 
(ADL)'' as inability to perform any of six activities that are widely 
recognized as ADLs by clinicians and are found in the Katz Basic ADL 
Scale. In addition, we include a seventh activity specific to veterans 
who require the use of prosthetics or orthopedic appliance. Inability 
to perform an activity of daily living is one of several alternative 
bases for a determination that an individual is in need of personal 
care services under Sec.  71.20(c)(1), and is one of the

[[Page 26149]]

alternative bases for such need per section 1720G(a)(2)(C)(i).
    We believe that the seven activities listed in the definition 
sufficiently identify the activities that would be impaired for an 
extended period of 6 months or more as a result of a serious injury, as 
that term is defined in this rulemaking; however, we welcome 
suggestions from the public as to additional activities that should be 
included in this list.
    We define an eligible veteran as ``a veteran, or a servicemember, 
who is found eligible for a caregiver under Sec.  71.20.'' This term is 
established for ease of reference throughout the part 71 regulations. 
The term is also used in section 1720G(a).
    We define ``General Caregiver,'' ``Primary Family Caregiver,'' and 
``Secondary Family Caregiver'' by referencing the sections that set 
forth the eligibility requirements for, and describe how to establish 
eligibility for, benefits as such a caregiver.
    We define ``in the best interest'' to mean, ``for the purpose of 
determining whether it is in the best interest of the eligible veteran 
to participate in the Family Caregiver program under 38 U.S.C. 
1720G(a), a clinical determination that participation in such program 
is likely to be beneficial to the eligible veteran. Such determination 
will include consideration, by a clinician, of whether participation in 
the program significantly enhances the eligible veteran's ability to 
live safely in a home setting, supports the eligible veteran's 
potential progress in rehabilitation, if such potential exists, and 
creates an environment that supports the health and well-being of the 
eligible veteran.''
    Under 38 U.S.C. 1720G(a)(1)(B), VA ``shall only provide support 
under the [Family Caregiver program] 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.'' Congress has left it to the 
Secretary to define ``in the best interest'' for this purpose. VA 
concludes that determinations of ``in the best interest'' must be 
clinical determinations, guided by VA health professionals' judgment on 
what care will best support the health and well-being of the veteran or 
servicemember--including that which offers the best opportunity for 
recovery and rehabilitation, whenever possible. In some cases a 
clinician may determine that other care and maintenance options would 
better promote the eligible veteran's functional capabilities and 
potential for independence.
    We define the ``[n]eed for supervision or protection based on 
symptoms or residuals of neurological or other impairment or injury'' 
as requiring supervision or assistance based on any one of seven listed 
impairments. We based these impairments on the UK Functional 
Independence Measure and Functional Assessment Measure, and the 
Neuropsychiatric Inventory. Like the definition of activity of daily 
living (ADL), we believe that this definition targets the population 
that section 1720G(a) is clearly intended to benefit. The need for 
supervision or protection based on symptoms or residuals of 
neurological or other impairment or injury is the second alternative 
basis for a determination that an individual is in need of personal 
care services under Sec.  71.20(c)(2), and is one of the alternative 
bases for such need per section 1720G(a)(2)(C)(ii). As with the 
definition of ADL, we welcome suggestions from the public as to 
additional impairments that should be included in this list.
    This regulation provides elaboration upon the statutory definition 
of ``personal care services'' set out in 38 U.S.C. 1720G(d)(4). There, 
personal care services is said to mean ``[a]ssistance with one or more 
independent activities of daily living [and] [a]ny other non-
institutional extended care (as such term is used in section 1701(6)(E) 
of [title 38]).'' The term ``independent activity of daily living'' 
does not have a commonly understood usage or meaning. Consistent with 
the purpose of the statute, we interpret ``independent activity of 
daily living'' to mean personal functions required in everyday living 
to sustain health and well-being and keep oneself safe from hazards or 
dangers incident to one's daily environment.
    Similarly, 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'' 
under the statute--rather that section merely authorizes the Secretary 
to provide non-institutional extended care. (See 38 U.S.C. 1701(6)(E) 
explaining that the term ``medical services'' includes 
``noninstitutional 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 non-institutional care services to enrolled 
veterans (and as provided in 38 CFR 17.36(a)) through VA's medical 
benefits package, which include but are not limited to 
``noninstitutional geriatric evaluation, noninstitutional adult day 
health care, and noninstitutional respite care.'' 38 CFR 
17.38(a)(1)(xi)(B).
    Based on the types of non-institutional care services provided 
under title 38 and our interpretation of the term ``independent 
activities of daily living'' within the context of the statute, we read 
these terms together to mean ``care or assistance of another person 
necessary in order to support the eligible veteran's health and well-
being, and perform personal functions required in everyday living 
ensuring the eligible veteran remains safe from hazards or dangers 
incident to his or her daily environment.'' We welcome public comments 
on our interpretation of this term.
    We define a ``primary care team'' as ``a group of medical 
professionals who care for a patient and who are selected 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 veteran.'' The term is used throughout the 
regulations to refer to the medical professionals who approve and/or 
monitor caregiver benefits. A team, rather than a single individual, is 
generally necessary due to the complex nature of a serious injury or 
injuries and their impact on the veteran and their caregivers that are 
prerequisites to eligibility and to the ongoing obligation on the part 
of VA to monitor and provide support for the veteran's home-based care.
    Consistent with 38 U.S.C. 1720G(a), we define ``serious injury'' 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.'' See discussion of section 71.20(c) below, which 
explains VA's rationale for establishing a causal relationship between 
the need for personal care services as it relates to the veteran or 
servicemember's serious injury.
    We define ``[u]ndergoing 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.'' This term is used to determine 
eligibility for a caregiver for active duty servicemembers. The

[[Page 26150]]

process of disability evaluation and medical discharge in some cases 
can be quite lengthy, and we do not believe that Congress intended to 
authorize prolonged caregiver benefits for active duty servicemembers, 
particularly because they have authorized Department of Defense to 
provide similar benefits to active duty servicemembers. Rather, we 
interpret the inclusion of servicemembers undergoing medical discharge 
in 38 U.S.C. 1720G(a)(2)(A) as an effort to ensure that, upon 
discharge, the individual will have a person identified and prepared to 
provide care. Therefore, this definition will ensure 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 he or she achieves veteran status. This 
definition will however, allow sufficient opportunity for a 
servicemember and caregiver to initiate an application for, and begin 
participation in, the VA program.

71.20 Eligible Veterans and Servicemembers

    Section 71.20 sets forth the eligibility criteria for a veteran or 
servicemember seeking a Primary or Secondary Family Caregiver.
    Section 71.20(a) and (b) restate the eligibility criteria from 38 
U.S.C. 1720G(a)(2)(A) and (B) without substantive change. VA's 
interpretation of the terms ``serious injury'' and ``undergoing medical 
discharge'' are addressed earlier in this notice.
    Paragraph (c) implements 38 U.S.C. 1720G(a)(2)(C)(i) through (iii). 
Therein, the law 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''; 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.'' Although the statute does not 
clearly state that the need for personal care services must relate to 
the ``serious injury'' required under section 1720G(a)(2)(B), such a 
causal relationship is at a minimum strongly implied by the overall 
purpose and language of the law. We believe that it is reasonable to 
interpret the statute, which premises eligibility on a serious injury, 
as requiring that such serious injury is the basis for the individual's 
need for a caregiver. It would not be rational to decouple the concepts 
such that, for example, a veteran with a serious injury incurred during 
service could be eligible for a caregiver based on an injury incurred 
after service and that is unrelated to the veteran's service. We would 
explicitly require such a connection in paragraph (c). We invite public 
comment as to whether another interpretation is possible and consistent 
with Congressional intent.
    We also have included a requirement that the individual need 
personal care services ``for a minimum of 6 continuous months (based on 
a clinical determination).'' We believe it is clear the intent of the 
statute--as far as direct-to-caregiver benefits--was not to invoke 
family caregiver designations for shorter-term periods of recovery, for 
example a recovery from a single surgery that is not connected with a 
long-term condition. We believe throughout the public discussion and 
deliberations the focus is on persons with longer term disabilities. We 
believe that a 6-month minimum requirement of these services, based on 
a clinical determination, is a reasonable way to ensure that caregiver 
benefits are provided to those individuals who are most likely the 
intended beneficiaries of the law. This 6-month period, we believe, is 
a reasonable period on which to distinguish these more temporary 
circumstances. We note that the Family and Medical Leave Act (FMLA) 
uses 26 workweeks (approximately 6 months) as the period to which an 
eligible employee who is the spouse, son, daughter, parent, or next of 
kin of a covered servicemember may be accorded unpaid leave to provide 
care to that covered servicemember. While such leave is unpaid, we 
believe the fact this period was used for the protection of a 
caregiver's employment relationship buttresses the choice of 6 months 
as a reasonable dividing line to distinguish episodic periods of care.
    Paragraph (c)(3) establishes another basis upon which an individual 
can be determined to be ``in need of personal care services''--by 
establishing a basis for eligibility of veterans and servicemembers 
whose serious injury is a psychological trauma or mental disorder, and 
who have received Global Assessment of Functioning (GAF) scores of 30 
or less continuously for a 90-day period immediately preceding VA's 
receipt of the application for a Caregiver. The GAF assessment is a 
well-established mental health examination that uses a score of zero to 
100 to determine an individual's ability to function psychologically 
and socially. 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. An individual who has been assessed as having a 
psychological trauma or mental disorder scored at 30 GAF or less 
generally requires a higher level of care that would provide constant 
supervision. We require that, during the 90-day period immediately 
preceding the date on which VA receives the Caregiver application, the 
individual was continuously scored at 30 GAF or less. For purposes of 
determining eligibility, we intend that this requirement will eliminate 
consideration of injuries that only consist of temporary psychological 
conditions, periodic exacerbations of such conditions, or conditions 
that have improved with treatment such that a caregiver is not 
required.
    Under paragraph (c)(3), VA will consider a GAF score to be 
``continuous'' if there are at least two scores during the 90-day 
period (one that shows a GAF score of 30 or less at the beginning of 
the 90-day period and one that shows a GAF score of 30 or less at the 
end of the 90-day period) and there are no intervening GAF scores of 
more than 30. We believe that this is sufficient evidence that the 
individual's GAF score has not changed to be more than 30 during that 
90-day period.
    Paragraph (c)(4) establishes another basis upon which a veteran can 
be determined to be ``in need of personal care services''--if the 
veteran was awarded service connection for a serious injury incurred or 
aggravated in the line of duty in the active military, naval, or air 
service on or after September 11, 2001, has been rated 100 percent 
disabled for that serious injury, and has been awarded special monthly 
compensation that includes an aid and attendance allowance. The 
Secretary considers appropriate the inclusion of this category of 
veterans.
    The criteria set forth under paragraph (c)(3) and (c)(4) are 
authorized by 38 U.S.C. 1720G(a)(2)(C)(iii) as alternate bases for the 
need for personal care services required by section 1720G(a)(2)(C).
    Paragraph (d) requires a clinical determination that it is in the 
best interest of the individual to participate in the program. This 
requirement is

[[Page 26151]]

based on 38 U.S.C. 1720G(a)(1)(B), which requires that the Secretary 
only provides support under the program if it is in the best interest 
of the individual to do so.
    Paragraph (e) bars authorization of a Family Caregiver if the 
services that would be provided by the Family Caregiver would be 
simultaneously and regularly provided by or through another individual 
or entity. This is to ensure that caregivers are authorized for those 
who do not simultaneously and regularly use other means to obtain 
personal care services. Our intent is to ensure that the Family 
Caregiver is not depending on VA or another agency to provide the 
personal care services that the Family Caregiver is expected to 
provide.
    Paragraphs (f) and (g) require that the individual, after VA 
designates a Family Caregiver, must agree to ``receive care at home'' 
and ``receive ongoing care from a primary care team.'' Under 38 U.S.C. 
1720G(a)(9)(A), VA must ``monitor the well-being of each eligible 
veteran receiving personal care services'' from a VA-designated 
caregiver. 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, which may 
include visiting the eligible veteran's home and taking corrective 
action when necessary, including additional training to a Family 
Caregiver. See 38 U.S.C. 1720G(a)(9)(B) and (C). The consent required 
by paragraphs (f) and (g) as a prerequisite to an award of caregiver 
benefits will enable VA to perform these statutorily required functions 
and will help VA ensure that the assignment of a specific caregiver and 
the provision of care in the veteran's home will continue to be in the 
best interest of the individual.

71.25 Approval and Designation of Primary and Secondary Family 
Caregivers

    The rules governing approval and designation of particular 
individuals to serve as Family Caregivers, including the rules 
governing such individuals' eligibility to serve as Primary or 
Secondary Family Caregivers, are set forth in Sec.  71.25. Paragraph 
(a)(1) requires anyone who would serve as a Primary or Secondary Family 
Caregiver to complete and sign a joint application, along with the 
eligible veteran. This implements the joint-application requirement in 
38 U.S.C. 1720G(a)(4).
    Upon receiving the application, Sec.  71.25(a)(2) requires VA to 
determine whether the caregivers, as identified on the joint 
application, are appropriate to serve as caregivers and, if so, whether 
to designate applicants as Primary and Secondary Family Caregivers. 
These determinations require VA to perform all clinical evaluations and 
decide whether the application should be granted and, if so, whether 
each applicant should be designated as identified in the application, 
i.e., whether the identified Primary Family Caregiver should be so 
designated. Section 1720G(a)(7)(A) requires that VA, not the veteran, 
officially make the designation of Primary Family Caregiver, and, 
generally, section 1720G(a) requires VA to make certain evaluations 
prior to approving an application. In Sec.  71.25(a)(3) we recognize 
that veterans and servicemembers may not have a ``continuous'' GAF 
score available at the time of their application. Therefore, in these 
instances, an application may be put on hold for no more than 90 days, 
from the date the application was received. This will enable VA to 
determine whether the GAF score of 30 or less is simply a transient 
condition likely to respond quickly to treatment obviating the need for 
a caregiver.
    We note that section 1720G(a)(7)(A) appears to require that there 
be one Primary Family Caregiver as a prerequisite to receiving 
caregiver benefits under the law. It states that VA ``shall designate 
one family member of such eligible veteran as the primary provider of 
personal care services for such eligible veteran.'' However, we do not 
believe that such a narrow interpretation of the law is consistent with 
the overall intent of the statute. If an eligible veteran does not 
desire a Primary Family Caregiver, and, if VA's clinical assessment 
leads to the determination that one or more Secondary Family Caregivers 
can, collectively, provide sufficient personal care services to enable 
the veteran to remain at home, there is no reason to deny the 
application simply because no individual Family Caregiver wants or 
assumes the responsibilities and benefits that would come with 
designation as the Primary Family Caregiver. Rather, we interpret the 
statutory language concerning ``one family member * * * as the [Primary 
Family Caregiver]'' to indicate that there cannot be more than one 
Primary Family Caregiver.
    Paragraph (b) sets forth the requirements for basic eligibility to 
serve as a Primary or Secondary Family Caregiver. Our authority to 
assess applicants and determine whether we believe that they are 
capable of serving as Primary Family Caregivers derives from 38 U.S.C. 
1720G(a)(7)(B)(iv) (the Primary Family Caregiver must be ``considered 
by [VA] as competent to be the [Primary Family Caregiver]''). We are 
also required, under section 1720G(a)(1)(B), to provide caregiver 
benefits ``only * * * if [VA] determines it is in the best interest of 
the eligible veteran to do so.'' We believe that the criteria specified 
under paragraph (b) are reasonable restrictions that are in the best 
interest of every veteran or servicemember who could be eligible for a 
caregiver under this part. If the public has concerns about these 
criteria, or believes that there should be fewer restrictions or 
greater oversight, we welcome public comments on this issue.
    Paragraph (b)(1) requires that all Primary and Secondary Family 
Caregivers be at least 18 years of age. We do not believe that 
individuals under the age of majority can be relied upon to provide 
personal care services as defined by part 71. It is in the best 
interest of the eligible veteran to ensure that caregiver services are 
provided by individuals who are mature enough to understand the serious 
nature of this responsibility.
    Paragraph (b)(2) requires that the Family Caregiver either be a 
member of the eligible veteran's family, i.e., his or her spouse, son, 
daughter, parent, step-family member, or extended family member; or a 
person who lives full-time with the eligible veteran or will do so if 
designated as a Family Caregiver. These restrictions are directly from 
the definition of family member set forth in 38 U.S.C. 1720G(d)(3).
    Paragraph (b)(3) states that there ``must be no determination by VA 
of abuse or neglect of the eligible veteran by the applicant.'' We 
think it is not in the best interest of the eligible veteran to place 
an eligible veteran with a caregiver who has abused or neglected that 
eligible veteran.
    Paragraph (c) describes how VA assesses and trains applicants prior 
to granting an application and designating the applicants as Primary or 
Secondary Family Caregivers. Under 38 U.S.C. 1720G(a)(5)(B), we are 
required to assess applicants and under section 1720G(a)(6)(A) we are 
required to provide training and instruction to such applicants. Under 
section 1720G(a)(6)(B), VA cannot approve an applicant until such 
training has been completed successfully.
    Assessment for caregiver training is required under paragraph 
(c)(1), and authority is delegated to the eligible veteran's primary 
care team in collaboration with the facility Caregiver Support 
Coordinator, who will be in the best position to determine whether 
specific applicants are able to meet the

[[Page 26152]]

needs of a specific eligible veteran. Paragraphs (c)(1)(A) and (B) 
prescribe basic requirements for any assessment, which concern the 
applicant's ability to communicate and whether the applicant will be 
capable of following without supervision the eligible veteran's 
treatment plan. These two requirements are essential to completion of 
caregiver training, the ability to appropriately care for the eligible 
veteran, and there is no reason to provide such training to individuals 
who cannot meet these two basic requirements.
    Paragraph (c)(2) requires actual completion of caregiver training, 
which is discussed in detail in paragraph (d), and demonstration of 
``the ability to carry out the specific personal care services, core 
competencies, and other additional care requirements prescribed by the 
eligible veteran's primary care team.'' We believe that demonstration 
of the necessary skills is an essential part of ``the successful 
completion * * * of instruction, preparation, and training'' required 
by 38 U.S.C. 1720G(a)(6)(B). Moreover, without such demonstration, we 
cannot be assured that it is in the ``best interest of the eligible 
veteran'' to provide caregiver services through the particular 
applicant. 38 U.S.C. 1720G(a)(1)(B).
    Paragraph (d) concerns the education and training of applicants who 
wish to be Family Caregivers. Under section 1720G(a)(6)(C), ``subject 
to regulations [VA] shall prescribe, [VA shall] provide for necessary 
travel, lodging, and per diem expenses incurred by a family member of 
an eligible veteran in undergoing instruction, preparation, and 
training'' to be a Family Caregiver. The statute does not link this 
benefit to VA's beneficiary travel authority under 38 U.S.C. 111(e); 
however, the requirement to promulgate regulations authorizes VA to 
make such a link in this rulemaking. Moreover, we note that after the 
caregiver education and training is complete, section 
1720G(a)(3)(A)(i)(IV) requires VA to provide Primary and Secondary 
Family Caregivers with ``lodging and subsistence under [38 U.S.C.] 
111(e).'' Rather than establish a different program for travel benefits 
before and after training, we authorize beneficiary travel benefits (as 
implemented in 38 CFR part 70) in Sec.  71.25(d) to support the 
education and training of family members. This means that the provision 
of beneficiary travel is subject to any limitations or exclusions under 
part 70 as well. There is no reason to believe that section 1720G 
extends beneficiary travel benefits to Family Caregivers but does not 
also require the equal application of the limitations that apply to all 
individuals eligible for benefits under part 70.
    Under section 1720G(a)(6)(D), respite care is to be provided to the 
eligible veteran during the initial provision of education and training 
to a Family Caregiver, if the Family Caregiver's participation in 
training ``would interfere with the provision of personal care services 
to the eligible veteran.'' We implement this requirement in paragraph 
(d).
    Paragraph (d) also sets forth the essential components of caregiver 
training. Of course, it is impossible to establish by regulation all 
that will be required for a particular eligible veteran. However, we 
have developed a program of caregiver training that covers the 
essential components of home-based care. These essential components are 
called ``core competencies'' in the regulation. We understand that, in 
a particular case, an eligible veteran might not need much assistance 
in one particular competency, such as skin care or pain control; 
however, 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 these core competencies, we will provide more specific training 
in addition to the minimum training provided to all caregiver 
applicants.
    Under 38 U.S.C. 1720G(a)(9)(C)(i), VA is authorized to visit an 
eligible veteran at home ``to review directly the quality of personal 
care services provided to the eligible veteran.'' Paragraph (e) details 
the at-home assessment that must be conducted within 10 business days 
after the completion of caregiver education and training in order to 
determine whether the Family Caregiver has completed training and is 
competent to provide personal care services to the eligible veteran. 
This assessment is to be performed in the eligible veteran's home. 
Paragraph (e) does not obviate VA's right, or duty, to monitor the 
eligible veteran on an ongoing basis; however, it does establish that 
an assessment will be performed no later than 10 days after completion 
of Caregiver education and training.
    Paragraph (f) authorizes the facility Caregiver Support Coordinator 
or designee to approve or disapprove applications, based on the 
clinical assessment of the primary care team, and designate the 
applicants as Primary and/or Secondary Caregivers. We note that such 
approval is predicated on the veteran or servicemember's and 
caregivers' continuing eligibility under part 71, and we cross-
reference Sec.  71.45, which concerns revocation.

71.30 General Caregivers

    Pursuant to 38 U.S.C. 1720G(b)(1), VA is required to establish a 
program, distinct from the Family Caregiver program, of support 
services for caregivers of veterans who are enrolled in the VA health 
care system and who are in need of personal care services because they 
are either unable to perform an ADL or have a ``need for supervision or 
protection based on symptoms or residuals of neurological care or other 
impairment or injury.'' These caregivers are referred to in our 
regulations as General Caregivers, to distinguish them from Primary or 
Secondary Family Caregivers. Unlike Family Caregivers, a General 
Caregiver need not be a family member of the veteran within the meaning 
of the law, and the veteran to whom service is provided need not have 
had a ``serious injury'' or have served on or after September 11, 2001. 
The benefits provided under section 1720G to General Caregivers are 
significantly less than those provided to Family Caregivers and are 
described in Sec.  71.40(a). Section 71.30(a) and (b) describe these 
General Caregivers using the statutory requirements.
    Paragraph (c) of Sec.  71.30 states that no formal application is 
required to obtain General Caregiver benefits. In most cases, General 
Caregivers are individuals who live with or near a veteran and help 
that veteran with less-critical personal care, such as cooking meals, 
but they may, in some cases, benefit from the caregiver education and 
training that we offer under Sec.  71.40(a), particularly if the 
veteran whom they assist is profoundly disabled. We want to make it 
easy for these types of ``good Samaritans'' to obtain education and 
training. The cost of providing these benefits is negligible in 
comparison to the benefits that veterans derive from having caring 
people voluntarily assisting them at home.

71.40 Caregiver Benefits

    Under section 38 U.S.C. 1720G(b)(3)(A)(i), VA must provide General 
Caregivers with specified ``support services'' including ``(I) 
educational sessions made available both in person and on an Internet 
Web site; (II) use of telehealth and other available technologies; and 
(III) teaching techniques, strategies, and skills for caring for a 
disabled veteran[.]'' We implement all of these services under 
paragraph (a)(1), using virtually the same language as required by the 
statute.

[[Page 26153]]

    Section 1720G(b)(3)(A)(ii) requires that VA provide General 
Caregivers with ``[c]ounseling and other services'' under 38 U.S.C. 
1782. We define the scope of these benefits in this rulemaking under 
Sec.  71.50.
    Under 38 U.S.C. 1720G(b)(3)(A)(iii), VA must provide veterans 
serviced by General Caregivers with ``[r]espite care under [38 U.S.C. 
1720B] that is medically and age appropriate for the veteran (including 
24-hour per day in-home care).'' VA currently provides respite care 
under section 1720B, but we have not needed separate respite care 
regulations to do so. From this current practice, we know that VA is 
capable of providing such respite care.
    Paragraph 71.40(b) implements the benefits to be provided to 
Secondary Family Caregivers under 38 U.S.C. 1720G(a)(3)(A). Secondary 
Family Caregivers are generally eligible for all of the benefits 
authorized for General Caregivers, based on our interpretation and 
application of section 1720G(a)(3)(A) and (B), in addition to the 
Secondary Family Caregiver benefits discussed further, below. 
Similarly, Primary Family Caregivers are authorized by section 
1720G(a)(3)(A)(ii)(I) to receive all of the benefits that VA provides 
to Secondary Family Caregivers--in addition to a higher level of 
benefits authorized only for Primary Family Caregivers. Thus, we 
discuss the benefits provided to Secondary Family Caregivers under 
Sec.  71.40(b) in terms of providing those benefits to both types of 
Family Caregivers, despite the fact that the paragraph's title only 
refers to Secondary Family Caregivers. The paragraph title is for ease 
of readability: A Secondary Family Caregiver can tell, based on the 
paragraph title, that all of his or her benefits will be described in 
Sec.  71.40(b).
    Under section 1720G(a)(9), VA must ``monitor the well-being of each 
eligible veteran receiving personal care services,'' maintain a record 
regarding the delivery of personal care services to the eligible 
veteran, and establish ``appropriate follow-up'' regarding information 
in the record. Follow-up procedures may include home visits by VA to 
review the quality of personal care services being provided to the 
eligible veteran, and ``corrective action'' including additional 
training or revocation of the Caregiver's approval. Although we 
interpret these monitoring requirements as a condition for continued 
participation as a Family Caregiver, we believe that it is accurate to 
classify these requirements as ``benefits'' because they provide the 
Family Caregiver with support. VA's monitoring procedures will include 
evaluation of the eligible veteran's and caregiver's physical and 
emotional states, observing for signs of abuse or neglect, adequacy of 
care and supervision being provided by the Primary and Secondary Family 
Caregivers, the eligible veteran's and Family Caregivers' overall 
adjustment to care at home, identifying any additional training or 
equipment needs, and assessing the Family Caregivers' level of stress. 
Monitoring will occur no less often than every 90 days, unless 
otherwise clinically indicated.
    Section 1720G(a)(3)(A)(i)(I) requires that VA provide to Primary 
and Secondary Family Caregivers ``such instruction, preparation, and 
training'' as appropriate to provide personal care services to the 
eligible veteran. In paragraph 17.40(b)(3), VA will provide these 
``continuing'' services to Primary and Secondary Family Caregivers. We 
note that preliminary instruction, preparation, and training are 
required before VA designates family members as Primary or Secondary 
Family Caregivers. Those services offered by VA under this section 
refer to those services that follow after the Primary or Secondary 
Family Caregiver has begun providing personal care services to the 
eligible veteran. Depending on the eligible veteran's treatment plan, 
the caregiver may require additional training to improve the services 
already being provided to the eligible veteran, learn how to use new 
technology that will improve the provision of care, or meet changing 
clinical needs of the eligible veteran.
    Section 1720G(a)(3)(A)(i)(II) requires VA to provide ``ongoing 
technical support consisting of information and assistance to address, 
in a timely manner, the routine, emergency, and specialized caregiving 
needs of the [Secondary F]amily [C]aregiver in providing personal care 
services to the eligible veteran.'' We interpret this sentence to 
require that VA maintain regular contact with the Primary and Secondary 
Family Caregiver and be available as a resource for questions about 
providing personal care services to the eligible veteran for routine, 
emergency, and specialized matters that pertain to the unique needs of 
the eligible veteran. Under paragraph (b)(4), VA will provide 
``[o]ngoing technical support, consisting of information and assistance 
to address, in a timely manner, the routine, emergency, and specialized 
needs of the Caregiver in providing personal care services to the 
eligible veteran.''
    Under section 1720G(a)(3)(A)(i)(III), VA must provide Primary and 
Secondary Family Caregivers with ``counseling.'' Similarly, under 
section 1720G(a)(3)(A)(ii)(II), VA must provide Primary Family 
Caregivers with ``such mental health services as the Secretary 
determines appropriate.'' We understand that the stresses of caregiving 
can lead to depression, anger, interpersonal conflict, anxiety, 
substance use, sleep disturbances, social isolation, and other personal 
and social issues. We also believe that these concerns are not unique 
to Primary Family Caregivers and intend to provide Secondary Family 
Caregivers with the same mental health services. We therefore interpret 
``counseling'' for the purposes of the benefits offered to Primary and 
Secondary Family Caregivers to include individual and group therapy, 
counseling and peer support groups. We do not interpret the provision 
to include medication, inpatient psychiatric care, or other medical 
procedures related to mental health treatment. We also note that these 
services are broader than the ``[c]ounseling and other services'' 
provided to General Caregivers under Sec.  71.40(a)(3) because the 
services under that authority, derived from 38 U.S.C. 1782, require 
that the services provided to the caregiver be connected to the 
treatment plan of the veteran. No such limitation exists under the 
section 1720G(a)(3)(A)(i)(III) or 1720G(a)(3)(A)(ii)(II) authorities. 
The counseling provided to Family Caregivers is intended to treat those 
Family Caregivers, independent of whether that treatment is likely to 
support the clinical objectives of the eligible veteran's treatment 
plan.
    Under section 1720G(a)(3)(A)(i)(IV), VA must provide Primary and 
Secondary Family Caregivers with ``lodging and subsistence under [38 
U.S.C.] 111(e).'' In addition, section 104 of Public Law 111-163 
amended 38 U.S.C. 111(e) to authorize VA to provide to family 
caregivers the ``expenses of travel (including lodging and 
subsistence)'' during the period of time in which the 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 veteran. VA implements 
38 U.S.C. 111(e) through regulation under 38 CFR part 70. In Sec.  
71.40(b)(6), we state that Family Caregivers ``are to be considered 
eligible for beneficiary travel under 38 CFR part 70.'' This means that 
the provision of beneficiary travel is subject to any limitations or 
exclusions under part 70 as well. There is no reason to believe that 
section 1720G extends beneficiary travel benefits to

[[Page 26154]]

Family Caregivers but does not also require the equal application of 
the limitations that apply to all individuals eligible for benefits 
under part 70.
    The benefits available to Primary Family Caregivers are described 
in Sec.  71.40(c).
    Under section 1720G(a)(3)(A)(ii)(III), VA must provide Primary 
Family Caregivers with ``respite care of not less than 30 days 
annually, including 24-hour-per day care of the veteran commensurate 
with the care provided by the family caregiver to permit extended 
respite.'' We believe that the 30-day provision was intended to 
emphasize that Primary Family Caregiver respite cannot be limited by VA 
to less than 30 days per year. Paragraph (c)(2) authorizes respite care 
that ``may exceed 30 days per year if clinically appropriate and if 
requested by the Primary Family Caregiver.''
    Under section 1720G(a)(3)(A)(ii)(IV), VA must provide certain 
Primary Family Caregivers with medical care under 38 U.S.C. 1781. VA 
administers the section 1781 authority through the CHAMPVA program and 
its implementing regulations. As we did with beneficiary travel, we 
interpret this as a provision establishing eligibility, and such 
eligibility is subject to the same limitations to which all CHAMPVA 
beneficiaries are subjected. However, section 1720G does not authorize 
CHAMPVA coverage to Primary Family Caregivers who are covered by other 
health insurance. Section 102 of Public Law 111-163 amended subsection 
(a) of section 1781 of title 38 by including Primary Family Caregivers 
as a category of individuals eligible for medical care under 38 U.S.C. 
1781. 38 U.S.C. 1781(a)(4), as amended, defines the new beneficiaries 
as ``an individual designated as a primary provider of personal care 
services under section 1720G(a)(7)(A) of [title 38] * * * who is not 
entitled to care or services under a health-plan contract (as defined 
in section 1725(f) of [title 38]).'' We believe that the benefit 
provided by 38 U.S.C. 1720G(a)(3)(A)(ii)(IV), as added by section 101, 
should be read together with the amendment to 38 U.S.C. 1781(a) in 
section 102, and that a Primary Family Caregiver would only be eligible 
for medical care under 38 U.S.C. 1781 if he or she was not entitled to 
care or services under a health-plan contract (as defined in section 
1725(f) of title 38).
    As a matter of policy, we want to discourage Primary Family 
Caregivers from opting out of other health insurance to which they may 
be entitled. The facility Caregiver Support Coordinator or other 
designated case manager will review coverage options with the Primary 
Family Caregiver. VA is only authorized to provide CHAMPVA for the 
family member's duration as a Primary Family Caregiver. Therefore, if 
the individual's Primary Family Caregiver status ends for any reason, 
including the health of that Family Caregiver, improved condition of 
the eligible veteran, death of the eligible veteran, or for cause, the 
CHAMPVA coverage would terminate as well. We do not intend to interrupt 
enrollment in other health insurance that could persist despite the 
termination of one's status as a Family Caregiver. Doing so would raise 
serious issues of continuity of care, and could negatively impact 
eligible veterans who continue to live with a family member whose 
CHAMPVA coverage terminates as a result of that family member no longer 
serving as a Primary Family Caregiver.
    Under section 1720G(a)(3)(A)(ii)(V), VA must provide a monthly 
stipend to the eligible veteran's designated Primary Family Caregiver. 
Under section 1720G(a)(3)(C)(i), VA must base the stipend amount on 
``the amount and degree of personal care services provided.'' VA must 
also, ``to the extent practicable,'' 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). If that geographic area does 
not have a commercial home health entity, then VA must ``tak[e] into 
consideration the costs of commercial providers of personal care 
services in providing personal care services in geographic areas other 
than the geographic area of the eligible veteran with similar costs of 
living.'' 38 U.S.C. 1720G(a)(3)(C)(iii). The stipend amount will be 
based on the United States Department of Labor's Bureau of Labor 
Statistics (BLS) weekly wage rate for a Home Health Aide, multiplied by 
4.35. The multiplier of 4.35 is based on the number of weeks per month 
for which care is provided and, therefore, the monthly stipend is 
payable. There are 365 days in a year, divided by 12 months, which 
equals 30.42. Thus, there are an average of 30.42 days per month. We 
then divided that number by 7, the number of days in a week, to reach 
4.35, the average number of weeks per month. If 40 hours of care are 
provided per week, then the monthly stipend would be 40 hours 
multiplied by 4.35 to determine a flat, average cost--rather than make 
each monthly payment based on the days in that specific month. The BLS 
website (http://www.bls.gov) provides the geographic average pay rates 
for a Home Health Aide. The direct stipend payment is calculated based 
on the BLS wage rate for a Home Health Aide using the 75th percentile 
of the hourly wage rate in the geographic area of residence of the 
eligible veteran. We determined that the 75th percentile most 
accurately reflects the national hourly wage rate for the competencies 
to be performed. There is a large standard deviation on wage rates for 
home health aides depending on their experience and education as well 
as the economic factors in the geographic area (mainly supply and 
demand). Given the wide range in wage rates, the seventy-fifth 
percentile most accurately meets the intent of the statute that 
Caregivers not be paid less than home health aides in a geographic 
area. Currently, BLS provides 2009 wage rates therefore VA will factor 
in a cost of living adjustment based on the Consumer Price Index to 
calculate the current year's hourly wage rate. The foregoing explains 
the formula in paragraph (c)(4)(v), which is that the stipend amount 
``will be calculated by multiplying the Bureau of Labor Statistics 
hourly wage for home health aides in the geographic area by the 
Consumer Price Index and then multiplying that total by the number of 
weekly hours of Caregiver assistance required under paragraph 
(c)(4)(iv) of this section. This product will then be multiplied by 
4.35.'' We will now address how we will determine the numbers that will 
be applied to this formula.
    First, in paragraph (c)(4), we explain that ``[t]o determine the 
stipend amount, VA first will determine the eligible veteran's level of 
dependency based on the degree to which the eligible veteran is unable 
to perform one or more ADLs, or the degree to which the veteran is in 
need of supervision or protection based on symptoms or residuals of 
neurological or other impairment or injury.'' The ADLs and supervision/
protection needs will be the 14 ADLs and needs (which we will call 
categories for the purposes of this discussion) that are listed in the 
definitions of those terms in Sec.  71.15 (i.e., the seven ADLs and the 
seven ``needs'' or impairments).
    In paragraph (c)(4)(iii) we explain that each of 14 categories will 
be assigned a clinical rating of zero to four, with zero meaning that 
no caregiver assistance is required by the eligible veteran in that 
category and a four meaning that the eligible veteran requires total 
assistance in that category, which is parenthetically defined as being 
able to

[[Page 26155]]

complete less than 25 percent of the specific task or function. These 
percentages, and the zero-to-four scale used in the regulation, are 
based on three widely accepted clinical tools for measuring ADLs and 
functional dependence, as applicable: The Katz Basic Activities of 
Daily Living Scale; the UK Functional Independence Measure and 
Functional Assessment Measure; and the Neuropsychiatric Inventory.
    Pursuant to paragraph (c)(4)(iv), the sum of the zero-to-four 
scores assigned to each of the 14 categories is then used to assign a 
presumed number of hours required of the Caregiver. This sum total is 
then applied to a presumptive level of need: Eligible veterans who 
score 21 or higher, which can be achieved by having the need for 
assistance in at least six of the 14 categories, are presumed to need a 
full-time Caregiver (i.e., one who provides 40 hours of care per week). 
Under paragraph (c)(4)(iv)(B), a eligible veteran who scores 13 to 20 
total in all categories will be presumed to require 25 hours per week 
of Caregiver assistance. Under paragraph (c)(4)(iv)(C), an eligible 
veteran who scores 1 to 12 will be presumed to require 10 hours per 
week of Caregiver assistance.
    We believe it is not realistically possible for a veteran or 
servicemember who meets the other requirements of these regulations to 
score a zero based on the above formula. However, if a veteran or 
servicemember were theoretically able to score a zero, we do not 
believe that that veteran or servicemember's Caregiver would be 
entitled to a stipend because that veteran would not require any hours 
of care per week. Hence, the rule would not provide a stipend based on 
a zero sum score.
    We also note that these scoring criteria are based on the 
definitions of ADL and need of supervision or protection based on 
symptoms or residuals of neurological or other impairment or injury, 
but under Sec.  71.20(c)(4), Caregiver eligibility extends to a veteran 
who is service connected for a serious injury that was incurred or 
aggravated in the line of duty in the active military, naval, or air 
service on or after September 11, 2001, and has been rated 100 percent 
disabled for that serious injury, and has been awarded special monthly 
compensation that includes an aid and attendance allowance. Such a 
veteran will also have impairment in the categories used for this 
formula, and therefore it is reasonable to calculate the stipend for 
such a veteran using this formula. Likewise veterans and servicemembers 
who establish eligibility under Sec.  71.20(c)(3) will also have an 
impairment in the categories used for this formula.
    In paragraph (c)(4)(v), we explain the stipend-calculation formula 
described above. Paragraph (c)(4)(vi) explains the circumstances under 
which stipend payments will be prorated/adjusted.
    The stipend is an acknowledgement of the sacrifices that Primary 
Family Caregivers are making to care for seriously injured eligible 
veterans. The law states that nothing in 38 U.S.C. 1720G, as added by 
section 101 of Public Law 111-163, shall be construed to create any 
entitlement of any assistance or support provided, nor to create an 
employment relationship between VA and an individual in receipt of 
assistance or support, which includes Primary Family Caregivers. 38 
U.S.C. 1720G(c)(2). The stipend payments to Primary Family Caregivers 
under 38 U.S.C. 1720G(a)(3)(A)(ii)(V) constitute ``payments [of 
benefits] made to, or on account of, a beneficiary'' that are exempt 
from taxation under 38 U.S.C. 5301(a)(1). VA does not intend that the 
stipend replace career earnings. 38 U.S.C. 1720G(c)(2)(A) (``[n]othing 
in this section shall be construed to create * * * an employment 
relationship between the Secretary and an individual in receipt of 
assistance or support under this section''). This principle is set 
forth in paragraph (c)(4)(vii).
    Paragraph (d) provides effective-date and payment-date rules that 
are consistent with VA practice and policy regarding the effective and 
payment dates of other VA benefits.

71.45 Revocation

    Section 71.45 concerns revocation of the Family Caregiver 
designation. It is important that we allow revocation by the eligible 
veteran, by the Family Caregiver him- or herself, and by VA; however, 
the bases for such revocation will differ based on who initiates the 
revocation proceeding.
    Under paragraph (a), we allow a Family Caregiver to revoke his or 
her caregiver status, and to provide a ``present or future date'' of 
such revocation. Many revocations will be requested immediately, but in 
some cases a Family Caregiver may wish to inform VA in advance that he 
or she will no longer be able to serve as a Family Caregiver at a 
specific, future date. The individual need not state a basis for 
revocation, as participation in the caregiver program is purely 
voluntary; however, we do require written revocation because the 
benefits provided to Family Caregivers are not insubstantial, and we 
want to ensure that there is formality to this process. We also will 
assist the Family Caregiver, if requested and applicable, in 
transitioning to alternative health care coverage and mental health 
services in order to help avoid to the maximum extent possible problems 
with continuity of medical care provided to that caregiver.
    Under 38 U.S.C. 1720G(a)(7)(C), the eligible veteran may revoke the 
status of a Primary Family Caregiver. We implement this authority in 
Sec.  71.45(b) and apply it to Secondary Family Caregivers as well. We 
establish straightforward procedures for such revocation, and we allow 
for a maximum 30-day period during which VA will review the request for 
revocation and determine whether there is a possibility for 
remediation. We allow up to 30 days because in some cases it may be 
necessary to allow for a ``cooling off,'' during which time the 
eligible veteran may reconsider his or her request.
    We also allow for up to 30 days continuing caregiver benefits, in 
order to assist the revoked individual in transitioning to other health 
care. Unlike the situation in paragraph (a), where the Family Caregiver 
is personally revoking his or her own status, in this situation, the 
Family Caregiver may not have had time to prepare for a transition from 
caregiver to non-caregiver status. There may be serious financial 
issues if the Family Caregiver has come to rely on the stipend, and 
there may be serious continuity of care issues if the Family Caregiver 
has been obtaining health care as a result of his or her caregiver 
status.
    But this 30-day extension, which is not specifically authorized by 
statute, is not without limitation. First, if VA determines that the 
revoked individual committed fraud or abused or neglected the eligible 
veteran, we will not continue the benefits after the date of 
revocation. Second, we will terminate caregiver benefits immediately if 
the revoked individual was the Primary Family Caregiver, and another 
Primary Family Caregiver is assigned within 30 days after the date of 
revocation because the law allows for there to be only one individual 
receiving benefits as the Primary Family Caregiver. Similarly, 
caregiver benefits will terminate if another individual becomes a 
Family Caregiver during the 30-day period, because our regulations will 
only allow for three Family Caregivers at any one time. Finally, if the 
revoked individual stops living with the eligible veteran or dissolves 
his or her relationship with the eligible veteran, we do not believe 
that it is appropriate to continue to

[[Page 26156]]

provide support to that individual. We recognize that neither the 30-
day post-revocation period during which benefits may continue, nor the 
limitations on that period, are clearly contemplated by statute. 
However, we believe that these rules are consistent with the 
legislation's purpose. We would like to consider public comment on this 
issue.
    Finally, under paragraph (c), VA is authorized to revoke 
immediately 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.'' However, 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 paragraph (b)(4)(i) through (iv) of this section apply. As above, 
this continuing period of eligibility for benefits is not contemplated 
by 38 U.S.C. 1720G, but we believe that it is an appropriate and 
compassionate way to interpret and enforce the law.

71.50 Provision of Certain Counseling, Training, and Mental Health 
Services to Certain Family Members of Veterans

    Under 38 U.S.C. 1782(a), VA is required to provide specified 
benefits to eligible individuals in connection with the treatment of 
veterans with certain service-connected disabilities, and under Sec.  
1782(b), VA may provide the same benefits to eligible individuals in 
connection with the treatment of veterans with certain nonservice-
connected disabilities. In the Veterans' Mental Health and Other Care 
Improvements Act of 2008, Public Law 110-387, Sec.  301(a), Congress 
expanded the benefits that VA is authorized to provide to family 
members by adding ``marriage and family counseling'' to a list of 
benefits that already included consultation, professional counseling, 
training, and mental health services. Those benefits are listed in 38 
CFR 17.38(a)(1)(vii) as part of the medical benefits package, as a 
result of a recent amendment to that section. 75 FR 54028 (Sep. 3, 
2010).
    The 2010 regulatory amendment to Sec.  17.38 did not explain or 
clarify the scope of the benefits offered under 38 U.S.C. 1782. Many 
benefits listed in Sec.  17.38 cross-reference sections that explain 
the benefit in more detail when the meaning or scope of the listed 
benefit is not entirely clear on its face, when the benefit is 
specifically limited by law, or when other regulations govern the 
actual provision of the benefit. See, e.g., 38 CFR 17.38(a)(1)(v) 
(bereavement counseling), (a)(1)(viii) (certain durable medical 
equipment), (a)(1)(xii) (beneficiary travel). We believe that such a 
clarifying regulation would be helpful to explain the scope of the 
benefits provided under section 1782 as well, notwithstanding that 
these benefits have been authorized and provided by VA for several 
years without regulation.
    Moreover, the Caregivers and Veterans Omnibus Health Services Act 
of 2010 amended section 1782 to provide eligibility for certain 
caregivers to the benefits and services authorized under section 1782. 
See Public Law 111-163, Sec.  103(a) (amending section 1782(c)). 
General Caregivers of covered veterans under part 71 are also eligible 
for benefits under section 1782 pursuant to 38 U.S.C. 
1720G(b)(3)(A)(ii). Thus, we believe it is important to include in part 
71 the regulation that implements 38 U.S.C. 1782, collocated with the 
``Caregivers'' rules, notwithstanding that section 1782 benefits are 
not limited to caregivers identified under part 71.
    We note as well that caregivers identified under part 71 would 
receive section 1782 benefits under the same limitations that apply to 
individuals who receive section 1782 benefits under other provisions of 
law. There is no indication in section 1720G(b)(3)(A)(ii) that Congress 
intended, by making caregivers eligible for section 1782 benefits, to 
affect the manner in which such benefits are provided, or to lift any 
restrictions on the provision of such benefits.
    In Sec.  71.50(a), we do not differentiate between service-
connected and non-service-connected disabilities. As noted above, VA is 
required to provide these benefits to service-connected veterans but is 
merely authorized to provide them to nonservice-connected veterans. VA 
has consistently exercised its authority to provide section 1782 
benefits without regard to service connection, and we would not change 
our administration of the benefit now.
    Paragraph (a) lists the benefits authorized by section 1782 
verbatim, and states that they will be provided ``to a family member 
when necessary in connection with the treatment of a disability for 
which the veteran is receiving treatment through VA.'' This restriction 
is specifically required by 38 U.S.C. 1782(a) and (b), both of which 
authorize the provision of these listed benefits to the family member 
of a veteran receiving treatment from VA ``as are necessary in 
connection with that treatment.'' Because the meaning of this 
restriction may not be clear in all contexts, we explain in paragraph 
(a) that ``in connection with the treatment'' of the veteran's 
disability means that ``in the clinical judgment of a VA medical 
professional who is providing treatment to the veteran, the provision 
of the benefit to the family member would further the objectives of the 
veteran's medical treatment plan.'' For example, a VA clinician is 
authorized to prescribe family participation is psychoeducational 
courses, if such courses are required for the treatment of a veteran's 
disability, because the courses are in connection with such treatment. 
In practice, our medical providers clearly articulate this limitation 
at the outset of treatment provided under section 1782, so that the 
individual being treated is aware of the limitations before beginning 
his or her course of care.
    The goal of this rule is to provide care to a qualified family 
member that connects to the treatment plan of the veteran, so that the 
services provided to the family member will be a component of VA's 
overall treatment of the veteran's disability. In view of our 
longstanding primary purpose to provide veteran-focused care and the 
statutory limitation that VA provide services that are necessary in 
connection with the treatment of the veteran, we do not interpret 
section 1782 to allow us to provide medical care for family members 
unless such care will improve the veteran's own condition from a 
clinical perspective. Thus, under this rule, VA would not provide 
treatment to family members for the purposes of overall wellness, but 
would instead do so to help families participate in the treatment of a 
veteran. For example, VA would not provide counseling and referral for 
a depressed family member because his or her depression makes the 
veteran feel sad out of empathy. However, VA may provide counseling and 
referral to a veteran's caregiver if the caregiver is unable to help 
the veteran engage in or sustain engagement in VA treatment. Similarly, 
if a qualified veteran relies upon a family member to drive him or her 
to a VA facility on a regular basis, and a mental health condition 
renders the family member unable to drive a car, then the veteran is 
left without access to needed treatment. In this instance, VA will 
provide the appropriate psychotherapy or counseling for the family 
member's condition, or help the family member find appropriate care in 
the private sector, because such treatment is necessary in connection

[[Page 26157]]

with the course of treatment for the veteran's disability.
    We also propose several clarifying paragraphs to help reduce 
potential confusion about the nature of the benefits authorized by 
section 1782. VA has interpreted the statutory list of benefits to 
contemplate psychotherapy, counseling, training, or education. VA will 
not provide prescriptions or medications to family members. Similarly, 
VA will not provide inpatient services under this section because such 
intensive care is, in our view, inconsistent with the types of benefits 
listed in the statute and with our veteran-focused mandate for medical 
care. This limitation is stated in paragraph (a)(1).
    Paragraph (a)(2) states that ``[t]his section does not authorize 
the provision of clinical evaluation or treatment that is not necessary 
in connection with the veteran's treatment or that involves treatment 
other than consultation, professional counseling, marriage and family 
counseling, training, and mental health services.'' We restate this 
limitation because it is important to emphasize the narrow nature of 
this benefit.
    We explain in paragraph (a)(3) that ``[m]arriage and family 
counseling includes services helping the veteran address mental health 
issues, manage physical health problems, and strengthen environmental 
supports as specified in the veteran's treatment plan'' and ``also 
includes interventions to reduce the negative impact for the veteran of 
mental illnesses or other medical conditions in family members.''
    Paragraph (b) defines ``family member'' for the purpose of this 
rule. The definition is derived from 38 U.S.C. 1782(c). The statute 
discusses members of the veteran's ``immediate family,'' which we 
interpret as ``person related to the veteran by birth or marriage who 
lives with the veteran or has regular personal contact with the 
veteran.'' We believe the term ``immediate'' connotes regular contact, 
usually living in the same household, and we would include this 
requirement in the definition. We consider this definition to be 
consistent with the overall intent of the law, which is to provide 
limited benefits to people who might be required to participate in the 
care of a veteran's condition or with whom the veteran might experience 
interactions that regularly exacerbate or contribute to his or her 
symptomatology.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
final 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 on this subject 
are authorized. All VA guidance must be read to conform with this 
rulemaking if possible or, if not possible, such guidance is superseded 
by this rulemaking.

Administrative Procedure Act

    In accordance with 5 U.S.C. 553(b), the Secretary of Veterans 
Affairs finds good cause to issue this interim final rule prior to 
notice and comment procedures. This interim final rule implements 
statutory authorization for a comprehensive program of assistance and 
support services for caregivers of eligible servicemembers and 
veterans. In passing the Caregivers and Veterans Omnibus Health 
Services Act of 2010 (the Act), Congress indicated a clear intent to 
have this program implemented as swiftly as possible, requiring 
implementation no later than 270 days after the statutory enactment, 
namely by January 30, 2011. The statute required extensive consultation 
with particular stakeholders prior to implementation, and since the 
enactment, the Secretary of VA has continued to engage with such 
stakeholders as directed. Under these circumstances, the Secretary 
finds that seeking public notice and comment in addition to the 
statutorily-directed stakeholder consultations prior to issuance is 
impracticable and that further delay would thwart Congressional intent 
to deliver these benefits to caregivers in need expeditiously.
    The statute required the Secretary to develop and implement a 
unique and highly complex program offering the following benefits to 
eligible caregivers:
     A monthly stipend;
     Health care coverage;
     Travel expenses, including lodging and per diem while 
accompanying veterans undergoing care;
     Respite care (not less than 30 days annually to allow the 
caregiver time away from caring for the veteran);
     Training; and
     Mental health services and counseling.
    Before implementation could occur, the Act expressly required the 
Secretary consult with specified stakeholders. Accordingly, the 
Secretary immediately began a process of consultation with:
     Veterans;
     Their family members;
     The Secretary of Defense;
     Veterans services organizations;
     National organizations specializing in the provision of 
assistance to individuals with disabilities;
     National organizations that specialize in the provision of 
assistance to family members of veterans who provide personal care 
services; and
     Other organizations with an interest in the provision of 
care to veterans and assistance to Family Caregivers.
    The Secretary has submitted to Congress a publicly available 
implementation plan that describes these mandatory consultations in 
detail, including recommendations from participants. Where such 
recommendations were not accepted, the Secretary's justifications were 
described as well. The Secretary now finds, having completed these 
required preliminary steps and provided Congress with an implementation 
plan, that it is imperative that the VA commence provision of the 
authorized assistance as quickly as possible.
    The Secretary further finds that it is contrary to the public 
interest to delay issuance of this rule for the purpose of soliciting 
prior public comment because there is an immediate and pressing need 
for the assistance and support services that will be provided under the 
rule, without which harm to America's wounded, injured veterans and 
their caregivers would result. The conflicts in Iraq and Afghanistan 
have led to a sharp increase in the number of servicemembers and 
veterans returning with serious injuries that require substantial care. 
Recognizing this problem, Congress required the Secretary to take quick 
action to assist these veterans and their caregivers. Hundreds of 
seriously injured servicemembers and veterans have caregivers or 
potential caregivers who may be eligible for the assistance and support 
services that will be provided under this rule. Many caregivers, in 
order to assist their loved ones in a time of dire need, may have left 
or foregone employment due to the time commitment required to provide 
care for a seriously injured individual. These caregivers may have lost 
health insurance as a result of lost employment opportunities and may 
be in urgent need of mental health counseling due to the great 
emotional strain of caring for a severely injured servicemember or 
veteran. Further, caregivers may be in need of the training that will 
be provided under this rule in order to ensure that they are able to 
provide care in a manner that protects the safety and well being of 
their seriously injured servicemember or veteran. The assistance and 
services to be provided under this rule are needed as soon as

[[Page 26158]]

possible to respond to this increase in servicemembers and veterans 
with serious injuries in order to avoid financial hardship for 
caregivers and to ensure the provision of appropriate care for eligible 
seriously injured servicemembers and veterans.
    For these reasons, the Secretary has concluded that ordinary notice 
and comment procedures would be impracticable and contrary to the 
public interest, and is accordingly issuing this rule as an interim 
final rule. The Secretary will consider and address comments that are 
received within 60 days after the date that this interim final rule is 
published in the Federal Register, including comments regarding 
eligibility criteria, and address them in a subsequent Federal Register 
notice announcing a final rule incorporating any changes made in 
response to the public comments.
    In order to ensure timely implementation of the program established 
by this rule, and for the reasons stated above, the Secretary also 
finds, in accordance with 5 U.S.C. 553(d), that there is good cause for 
this interim rule to be effective immediately upon publication. For the 
same reasons detailed above--i.e., clear Congressional intent to 
implement the program swiftly and on a tight statutory schedule after 
extensive Secretarial consultation with stakeholders, as well as an 
immediate and pressing need for the assistance provided under this 
rule--it is in the public interest to commence this program as soon as 
possible, and this will be facilitated by an immediate effective date.

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 
issuing any rule that may result in the expenditure by State, local, or 
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, or tribal 
governments, or on the private sector.

Paperwork Reduction Act

    The interim final rule at Sec.  71.25(a) contains a collection of 
information, which constitutes a collection of information under the 
Paperwork Reduction Act (44 U.S.C. 3501-3521) and requires approval by 
the Office of Management and Budget (OMB). Accordingly, under section 
3507(d) of the Act, VA has submitted a copy of this rulemaking to OMB 
for review. OMB assigns a control number for each collection of 
information it approves. Except for emergency approvals under 44 U.S.C. 
3507(j), 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. We have requested that OMB approve the 
collection of information on an emergency basis. If OMB does not 
approve the collection of information as requested, we will immediately 
remove Sec.  71.25(a) or take such other action as is directed by OMB.
    We are also seeking an approval of the information collection on a 
non-emergency basis. Accordingly, we are also requesting comments on 
the collection of information provisions contained in Sec.  71.25(a) on 
a non-emergency basis. Comments must be submitted by July 5, 2011.
    Comments on the collection of information should be submitted to 
the Office of Management and Budget, Attention: Desk Officer for the 
Department of Veterans Affairs, Office of Information and Regulatory 
Affairs, Washington, DC 20503, with copies mailed or hand-delivered to: 
Director, Office of Regulation Policy and Management (02REG), 
Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, 
Washington, DC 20420; fax to (202) 273-9026; or through 
www.regulations.gov. Comments should indicate that they are submitted 
in response to ``RIN 2900-AN94, Caregivers Program.''
    Title: Caregivers Program.
    Summary of collection of information: The interim final rule at 
Sec.  71.25(a) contains application provisions for individuals who wish 
to be considered for designation by VA as Primary or Secondary Family 
Caregivers for certain veterans. These provisions require the 
submission of a joint application completed by a veteran or 
servicemember and no more than three other individuals who intend to 
serve as Family Caregivers for an eligible veteran, with no more than 
one individual serving as veteran's Primary Family Caregiver.
    Description of the need for information and proposed use of 
information: This information is needed to determine eligibility for 
benefits under the Caregiver Program and to ensure that eligible 
veterans receive suitable caregiver services.
    Description of likely respondents: Veterans' family members.
    Estimated number of respondents per year: 5,000.
    Estimated frequency of responses per year: 1.
    Estimated total annual reporting and recordkeeping burden: 1,250 
hours.
    Estimated annual burden per collection: 15 minutes.
    OMB is required to make a decision concerning the collection of 
information contained in this interim final rule between 30 and 60 days 
after publication of this document in the Federal Register. Therefore, 
a comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment on the interim final rule. VA 
considers comments by the public on collections of information in--
     Evaluating whether the collections of information are 
necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the collections of information, including the validity of 
the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collections of information on 
those who are to respond, including responses through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of responses.

Regulatory Flexibility Act

    The Secretary of VA has determined that this regulatory action 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. 601-12. This regulatory action affects individuals and would not 
affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this 
regulatory action is exempt from the initial and final flexibility 
analysis requirements of sections 603 and 604.

Congressional Review Act

    This regulatory action is a major rule under the Congressional 
Review Act, 5 U.S.C. 801-08, because it is likely to result in an 
annual effect on the economy of $100 million or more. Although this 
regulatory action is a major rule within the meaning of the 
Congressional Review Act, 5 U.S.C. 804(2), it is not subject to the 60-
day delay in effective date applicable to major rules under 5 U.S.C. 
801(a)(3) because the Secretary finds that good cause exists under 5 
U.S.C. 808(2) to make this regulatory action effective

[[Page 26159]]

immediately, consistent with the publication of this interim final 
rule. Congress established this program and intended it to be in effect 
by January 30, 2011, but the implementing regulations have taken longer 
to develop. In establishing this program, Congress and VA recognize the 
immediate and urgent need that many veterans, servicemembers, and their 
family members have for caregiver assistance and benefits. Accordingly, 
the Secretary finds that additional advance notice and public procedure 
thereon are impractical, unnecessary, and contrary to the public 
interest. In accordance with 5 U.S.C. 801(a)(1), VA will submit to the 
Comptroller General and to Congress a copy of this regulatory action 
and VA's Regulatory Impact Analysis (RIA).

Executive Order 12866 and Executive Order 13563

    Executive Orders 13563 and 12866 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, and other advantages; distributive impacts; and 
equity). Executive Order 13563 emphasizes the importance of quantifying 
both costs and benefits, of reducing costs, of harmonizing rules, and 
of promoting flexibility. Executive Order 12866 defines a ``significant 
regulatory action,'' which requires review by the Office of Management 
and Budget (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 
the Executive Order. This rule has been designated a ``economically'' 
significant regulatory action under section 3(f)(1) of Executive Order 
12866. Accordingly, the rule has been reviewed by the Office of 
Management and Budget.
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this regulatory action and followed OMB Circular 
A-4 to the extent feasible in this Regulatory Impact Analysis. The 
circular first calls for a discussion of the need for the regulatory 
action.

Statement of Need

    This rulemaking is necessary 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. The purpose of the caregiver 
benefits program is to provide certain medical, travel, training, and 
financial benefits to eligible caregivers of veterans and certain 
servicemembers who incurred or aggravated a serious injury in the line 
of duty on or after September 11, 2001.

Summary of Estimated Impact

    The estimated costs associated with this regulation are 
$69,044,469.40 for FY2011 and $777,060,923.18 over a 5 year period. 
These include costs associated with the implementation and development 
of the caregiver support program.
[GRAPHIC] [TIFF OMITTED] TR05MY11.130


[[Page 26160]]


    Estimated costs and projections are based on the best, reasonably 
obtainable, and economic information available. Some portions of the 
analysis rely upon assumptions that may change, due to the 
unpredictability of catastrophic and severe injuries resulting from 
military service and combat during war. This analysis sets forth the 
basic assumptions, methods, and data underlying the analysis and 
discusses the uncertainties associated with the estimates. Assumptions 
and methodologies for each portion of the analysis are explained in 
more detail in the Estimate of Potential Program Costs below. As VA 
develops claims data and becomes more cognizant of the cost of 
caregiver benefits, VA will make appropriate adjustments in the amount 
of funds requested for future fiscal years. VA invites public comments 
on all of these projections.

Potential Benefits

    Hundreds of seriously injured servicemembers and veterans have 
caregivers or potential caregivers who may be eligible for the 
assistance and support services that will be provided under this 
rulemaking. The purpose of providing Family Caregiver assistance under 
this law is to benefit eligible veterans whose personal care service 
needs could be substantially satisfied with the provision of such 
services by a family member (as defined in the law); and to provide 
eligible veterans with additional options so that they can choose the 
setting for the receipt of personal care services that best suits their 
needs.

Alternatives

    On May 5, 2010, the President signed into law the Caregivers and 
Veterans Omnibus Health Services Act of 2010, Public Law 111-163. 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).
    The law authorizes assistance for caregivers of Post 9/11 veterans 
and servicemembers. It recognizes that Post 9/11 veterans and 
servicemembers return home with serious injuries that often were fatal 
in the past. These veterans present complex recovery and adjustment 
processes requiring ongoing medical supervision.
    VA initially considered a narrow definition of eligibility, but 
ultimately decided to broaden the program's eligibility in order to 
encompass more seriously injured post-9/11 veterans. The law requires 
VA to report on the program's potential for future expansion to all era 
veterans, so under this law Congress will consider that aspect of the 
program at a later time.

Estimate of Potential Program Costs

    To project the best possible economic impact of this regulation VA 
conducted an analysis on veterans and servicemembers who incurred or 
aggravated a serious injury in the line of duty on or after September 
11, 2001. The analysis also focused on the number of veterans and 
servicemembers who have an impairment in one or more of seven 
activities of daily living (ADLs) or require supervision or protection 
based on symptoms or residuals of neurological or other impairment or 
injury, and those whose injury is strictly diagnosed as a mental health 
condition with a GAF score of no greater than 30. The results of this 
analysis identified an estimated 3,596 veterans and servicemembers who 
would meet the eligibility criteria established in Sec.  71.20 of this 
regulation, thus being eligible for Family Caregiver benefits. The 
estimated 3,596 number of potentially eligible veterans and 
servicemembers was applied to the applicable methodologies and 
calculations in this regulatory impact analysis to project the best 
possible economic impact of this regulation.

Caregiver Program Staffing

    Staffing costs were calculated for the following number of full-
time employees (FTE) and salaries. Based on the publication date of 
this rulemaking (May 2011), the total staffing cost for FY11 
($8,083,644.80) is based on the 5 remaining months of FTE costs (May-
Sep). A 4 percent total General Schedule Increase and Locality Payment 
rate was applied to the FTE costs for FY13 through FY15.

[[Page 26161]]

[GRAPHIC] [TIFF OMITTED] TR05MY11.131

Caregiver Program Stipend

    The caregiver stipend is based on the Department of Labor (DOL) 
national estimate for hourly wages of a Home Health Aide, which was 
$11.67 for FY09. To compute the FY11 rate, a 7.5 percent annual 
inflation rate was applied to obtain the FY11 rate of $12.55 per hour. 
To determine the number of stipend hours that each caregiver would be 
able to provide VA used Veterans Benefits Administration (VBA) data, 
which categorizes veterans by the severity of their disability or their 
injury. Based on this data, VA projects a caseload of 3,596 veterans 
and servicemembers, consisting of: 2,116 veterans and servicemembers 
with serious injuries and service-connected (SC) anatomical loss, or 
loss of use, and 220 veterans with 100 percent SC traumatic brain 
injury (TBI); 146 veterans with a 100 percent SC mental health (MH) 
condition with a GAF score of 30 or less; 394 service members with a 
serious injury; and 720 potentially new service members identified by 
the Department of Defense (DoD).
    For FY 11, VA assumes that 50 percent of the R1, R2, L, M, N, O 
veterans (2,116/2 = 1,058), 50 percent of the 394 and 720 
servicemembers (394 + 720 = 1,114/2 = 557), all of the SC MH with a GAF 
score of 30 or less (146), and 50 percent of the SC 100% TBI (220/2 = 
110), totaling 1,871 or approximately 52 percent of the 3,596 caseload 
would fall into the high percentage of hours (26-40 hrs) that 
caregivers will provide.
    VA assumes that 25 percent of the R1, R2, L, M, N, O veterans 
(2,116/4 = 529), 50 percent of the SC 100% TBI (220/2 = 110) and 50 
percent of the servicemembers (557), totaling 1,196 or approximately 33 
percent of the 3,596 caseload would fall into the medium percentage of 
hours (10-25 hrs) that caregivers will provide.
    VA assumes that 25 percent of the R1, R2, L, M, N, O veterans 
(2,116/4 = 529), totaling 529 or approximately 15 percent of the 3,596 
caseload would fall into the low percentage of hours (less than <10 
hrs) that caregivers will provide.
    Based on the publication of this rulemaking (May 2011), the Total 
Stipend Cost for FY11 ($27,617,530.00) is based on 5 months only (-20 
weeks). A 4 percent inflation rate was applied to the stipend cost per 
hour and a 4 percent population growth rate was applied to the 
projected caregiver caseload for all out years.

[[Page 26162]]

[GRAPHIC] [TIFF OMITTED] TR05MY11.132

Respite Care

    VA assumed that respite care will be primarily in-home care for 24 
hours per day. The FY11 rate of $226 was calculated using an actual 
FY09 rate of $209 and adding a 4 percent inflation rate. The rates were 
provided by VA's Geriatrics and Extended Care Strategic Healthcare 
Group. VA assumed 40 days of respite care. This includes the minimum of 
30 days of respite care for the Primary Family Caregiver, plus 5 days 
for training for each (2) Secondary Family Caregiver. The 40 days of 
respite is consistent for all out year cost and encompasses respite 
care during training for all ``new'' Family Caregivers. VA assumes that 
all Family Caregivers will receive training simultaneously or provide 
coverage for each other during periods of training. Therefore, VA 
anticipates 3,596 Family Caregivers will request respite care during 
training in FY11. However, based on the publication date of this 
rulemaking (May 2011), Family Caregivers will only have 5 months to 
utilize respite benefits (May-Sep). Thus, FY11 respite care was 
calculated to be 17 days. A 4 percent inflation rate was applied to the 
respite cost per day.
[GRAPHIC] [TIFF OMITTED] TR05MY11.133

Mental Health Services

    VA assumes that as many as 50 percent of the total caregivers might 
have mental health issues and of those, only half would seek mental 
health services based on trends in a review of medical literature 
(3,596/4 = 899). Recent National Alliance for Caregiving (NAC) 
literature indicates that 67 percent of caregivers of veterans report 
they are highly stressed, and may experience anxiety, sleep 
deprivation, or depression. Data from the National Institutes for 
Health indicate that mental health utilization rates average 12 percent 
for the general population. VA anticipates that a larger number of new 
caregivers will seek these services. VA acknowledges that the 50 
percent assumption may be conservative, but VA has the resources to 
absorb increased requests for mental health services. Based on 
information obtained from VA's Mental Health Services, VA assumed six 
(6) visits per year at an initial cost of $170 per visit. Based on the 
publication of this rulemaking and when mental health services are 
expected to become available (May 2011), caregivers will only have a 5 
month period to seek mental health service benefits (May-Sep). VA 
assumes that 5 months is not a sufficient amount of time for caregivers 
to fully utilize the annual average of six (6) visits. Caregivers must 
be trained and certified before they are eligible for these benefits. 
Therefore, the average number of visits for FY11 is estimated at two 
(2) visits (6/12 x 4 = 2). A 4 percent inflation rate was applied to 
the mental health service cost per visit and a 4 percent population 
growth rate was applied to the projected caregiver caseload for all out 
years.

[[Page 26163]]

[GRAPHIC] [TIFF OMITTED] TR05MY11.134

Education and Training

    Cost projections were based on development and implementation of 
training for Family Caregivers using a core curriculum provided by a 
designated contractor. Training for General Caregivers will use a 
modified version of this core curriculum and will be managed by VA 
staff. The training modules will also be available through Workbook/DVD 
and web-based versions. VA assumes a maximum of two Secondary Family 
Caregivers per veteran. Comprehensive Family Caregiver training will 
only be provided once for each Family Caregiver, to include primary and 
secondary caregivers. This comprehensive Family Caregiver training will 
be reviewed annually. Updated core curriculum training and guidance 
will be available on the Caregiver Support Program's website and from a 
Caregiver Support Coordinator, at each VA Medical Center.
    In FY11, VA projects 3,596 Primary Family Caregivers and 7,192 
(3,596 x 2) Secondary Family Caregivers will be trained. VA projects 
that 10 percent (3,000) of veterans from all eras receiving VA Aid and 
Attendance, including seriously injured active servicemembers pending a 
medical discharge may be eligible for General Caregiver training and 
benefits. Therefore, the total cost for training all caregivers 
(13,788) for FY11 is estimated to be $6,057,760.00.
    Caseload projections for FY12 and all out years are based on 
training ``new'' Family Caregivers. Comprehensive training in its 
entirety will only be provided once for each Family Caregiver. VA 
applied a 4 annual percent (4%) population growth rate, which is based 
on historical growth trends in compensation benefits, to determine the 
estimated number of ``new'' Family Caregivers (432 for FY12) that will 
require training annually.
    In FY12, VA projects that 144 Primary Family Caregivers will be 
trained along with 288 (144 x 2) Secondary Family Caregivers and 3,120 
General Caregivers. Therefore, the total cost for training all 
caregivers (3,552) for FY12 is estimated to be $190,185.60.

[[Page 26164]]

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[[Page 26165]]


[GRAPHIC] [TIFF OMITTED] TR05MY11.136

Lodging/Mileage/Meal Per Diem (Veteran Inpatient/Outpatient)

    Mileage, lodging, and meal per diem will be provided to Family 
Caregivers when VA determines that an overnight stay is required. VA 
assumed that lodging would be provided within VA or VA-affiliated 
resources (i.e., at a Fisher House, VA Hoptel, or other setting at VA 
expense). VA determined that meal per diem for caregivers who require 
lodging would be no more than half of the highest rate ($35.00 to 
$70.00). The lodging per diem would be half of the average federal 
lodging and per diem rates for ten (10) facilities with Spinal Cord 
Injury (SCI) and VA's four (4) polytrauma centers ($223.00). Therefore, 
for FY11, VA assumes that meal per diem would be $35.00 per day and 
lodging per diem would be $111.50.00 per day. To determine the average 
length of stay (ALOS) for veterans requiring inpatient care, VA 
obtained data from VA's Office of the Assistant Deputy Under Secretary 
for Health, Policy and Planning. This data indicated that slightly more 
than 196,000 of 982,000 (20%) Priority Group 1 (PG1) veteran users were 
admitted in FY09 for an average length of stay (ALOS) of 7.3 days. VA 
assumes that the 7.3 days would increase to 9.3 days based on severity 
of this population and extensive rehabilitation needs. VA also assumed 
an ALOS of 1 day for Family Caregivers of veterans requiring outpatient 
services. In FY11, it is estimated that 1,438 (719 x 2) Family 
Caregivers will require lodging during the veteran's inpatient or 
outpatient visit. The total cost in FY11 for lodging, meal per diem and 
mileage is $466,975.52. Based on the publication date of this 
rulemaking, these costs are based on 5 months only (May-Sep). A 4 
percent inflation rate was applied to the meal and lodging per diems. A 
4 percent population growth rate was applied to the projected caregiver 
caseload for all out years.

[[Page 26166]]

[GRAPHIC] [TIFF OMITTED] TR05MY11.137

Mileage for Caregiver Training

    VA assumes that Family Caregiver training will be conducted in the 
proximity of the veteran's and caregiver's geographical residence. 
Thus, only mileage reimbursement will be provided. Costs were 
calculated assuming that an average of two caregivers per veteran would 
be undergoing training for 5 days each, for a total of 10 days. VA 
assumed that caregivers would drive no more than 60 miles total to 
attend training and would be reimbursed at a mileage rate of 41.5 cents 
per mile. The mileage rate of (41.5 cents per mile) is based on the 
beneficiary travel rate established for veterans, codified at 38 U.S.C. 
111. Based on the publication date of this rulemaking (May 2011), the 
total travel mileage cost for FY11 is $373,085.00 and is based on 5 
months only (May-Sep). Total Caseload projections for FY12 and all out 
years only include initial training for ``new'' primary and Secondary 
Family Caregivers (144). The 144 reflects a 4 percent (4%) population 
growth rate from the FY11 caseload.

[[Page 26167]]

[GRAPHIC] [TIFF OMITTED] TR05MY11.138

Health Care (CHAMPVA)

    A 2010 NAC report indicates that around 70 percent of caregivers of 
veterans are spouses and thus likely eligible for TRICARE benefits 
based on the assumption that veterans eligible for this program will 
have received a medical retirement from the service based on 30 percent 
disability or greater. Therefore VA assumes that only 30 percent of 
Primary Family Caregivers (30% of 3,596 = 1079) will be eligible for 
CHAMPVA health care coverage.
    Estimated costs for 1,079 Primary Caregivers in FY11 were 
calculated assuming seven (2) new FTE and five (5) contract or term 
employees for the initial start-up of the project. These staff will be 
utilized to verify enrollment and administer benefits for the new 
beneficiaries for the CHAMPVA program. In FY11, the seven (7) FTE costs 
represent a Denver-based GS-7/5 salary of $47,184 with a 33 percent 
benefit and overhead cost factor applied ($62,755). The total costs for 
CHAMPVA, FTE and Operating Costs in FY11 is $2,752,390.92. This amount 
reflects only 5 months of FTE and Medical cost (May-Sep), due to the 
publication date of this rulemaking (May 2011). The FTE figure was 
reduced to two (2) FTE for FY13-14. In FY15 there is an increase in one 
(1) FTE based the ratio of 1 FTE per 500 beneficiaries reflected in the 
caseload. A 4 percent total General Schedule Increase and Locality 
Payment was applied to the FTE costs beginning in FY13 through FY15. 
Additional costs associated with the start-up of the new program are 
identified in the chart below. These costs include the purchase of 
computers, cubicles, furniture, telephones, materials, and training to 
support the new Caregiver Program. The approximate cost of setup for 
each new FTE is $21,000.00 and ongoing training is estimated at 
$5,400.00 per person. The average annual cost per beneficiary for FY11 
was estimated to be $5,389.00, which reflects the estimated medical 
cost per beneficiary when CHAMPVA is the primary payer. A 4 percent 
annual inflation rate was applied to the annual cost per caregiver for 
the out years. Based on the publication date of this rulemaking (May 
2011), VA does not anticipate that the total projected caregiver 
caseload will apply and receive health care coverage within the 5 
remaining months in FY11 (May-Sep). Caregivers must be trained and 
certified before they are eligible for these benefits. Therefore, the 
expected total medical cost per year in FY11 ($2,422,355.50) is based 
on 5 months only.
[GRAPHIC] [TIFF OMITTED] TR05MY11.139

Caregiver Oversight (Contract)

    Oversight for veterans and caregivers who live in remote areas will 
be contracted with a national home health agency. VA estimated that 40 
percent of caregivers (3,596 x 40% = 1,438) would receive oversight or 
monitoring by VA contractors due to the veteran's or caregiver's 
geographical location. Costs were estimated using a home health agency 
contractor for one (1) visit per quarter by a registered nurse (RN) for 
two (2) hours per visit, using a national hourly rate of $116.40 for 
skilled nursing visits based on CMS Lupa rates. Based on the 
publication of this rulemaking (May 2011) and based on

[[Page 26168]]

VA's decision to ensure that the first home visit is conducted by VA 
clinical staff, there are no projected contract costs for FY11. A 4 
percent inflation rate was applied to the cost per caregiver per/hr and 
a 4 percent population growth rate was applied to the projected 
caregiver caseload to produce costs for out years identified in the 
chart below.
[GRAPHIC] [TIFF OMITTED] TR05MY11.140

Caregiver Oversight (VA)

    Based on the projected caregiver caseload (3,596), VA assumes that 
approximately 1,438 (40%) will utilize Telehealth in conjunction with 
contract oversight services compared to 2,158 (60%) that will utilize 
Home Based Primary Care (HBPC) or other similar services. Based on the 
publication of this rulemaking (May 2011), the total Telehealth and 
HBPC cost for FY11 is based on 5 months only. The Telehealth average 
cost per caregiver per month ($208.33) was provided by Telehealth 
Services. A 4 percent inflation rate was applied to the Telehealth 
average cost per caregiver per year and a 4 percent population growth 
to the projected caregiver caseload for all out years. Total HBPC Cost 
for each FY includes a 20 percent increase due to normal variation in 
staffing levels and geographic availability. HBPC cost per caregiver/
per visit is estimated to be $583.00 (based on a four (4) hour visit 
including travel up to a sixty (60) mile radius and other associated 
costs). A 4 percent inflation rate applied for all out years.

[[Page 26169]]

[GRAPHIC] [TIFF OMITTED] TR05MY11.141

Caregiver Support Line

    The toll-free National Caregiver Support Line is staffed by 
licensed clinical social workers and will be available to answer 
questions from Caregivers, veterans, and members of the public as well 
as directing calls to their local Caregiver Support Coordinator. The 
costs for annual salary plus benefits include a 10 percent adjustment 
for night/weekend differentials, since the support line is staffed from 
Monday through Friday 8 a.m. to 11 p.m. and Saturday 10:30 a.m. to 6 
p.m. Eastern Standard Time. The estimated costs for the facilities 
contract include: Human Resources costs, housekeeping, furniture, IT 
equipment, supplies, and other miscellaneous support expenses. The 
total costs projections will be based upon a Memorandum of 
Understanding between the VA Facility and the Caregiver Support 
Program. VA assumes $520,156.33 for initial start-up costs in FY11, 
with maintenance costs of $148,375.20 in FY12, adjusted for inflation 
at 4 percent for all out years.

[[Page 26170]]

[GRAPHIC] [TIFF OMITTED] TR05MY11.142

Study and Survey

    Estimated costs were based on MOU with a VA facility and the 
required resources to conduct a caregiver study/survey, which will 
evaluate the program and identify unmet caregiver needs.
[GRAPHIC] [TIFF OMITTED] TR05MY11.143


[[Page 26171]]


[GRAPHIC] [TIFF OMITTED] TR05MY11.144

Outreach and Additional Support Programs

    Estimated costs for the additional support programs below are 
$3,811,561.00 for FY11 and $15,010,932.00 over a 5 year period. Cost 
estimates for outreach and support programs are based on price 
estimates provided by leading national non-profit and for-profit firms.
[GRAPHIC] [TIFF OMITTED] TR05MY11.145

Identification of Duplicative, Overlapping, or Conflicting Federal 
Rules

    There are no duplicative, overlapping, or conflicting Federal rules 
identified with this regulatory action.

Accounting Statement and Table

    As required by OMB Circular A-4, in the table below, VA has 
prepared an accounting statement showing the classification of 
transfers, benefits and costs associated with the provisions of this 
rulemaking. Some portions of the analysis rely upon assumptions that 
may change, due to the unpredictability of catastrophic and severe 
injuries resulting from military service and combat during war. The 
analysis for this rulemaking sets forth the basic assumptions, methods, 
and data underlying the analysis and discusses the uncertainties 
associated with the estimates. As VA develops claims data and becomes 
more cognizant of the cost of caregiver benefits, VA will make 
appropriate adjustments in the amount of funds requested for future 
fiscal years.

[[Page 26172]]

[GRAPHIC] [TIFF OMITTED] TR05MY11.146

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, 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. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this 
document on April 28, 2011, 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: May 2, 2011.
Robert C. McFetridge,
Director, Regulations Policy and Management, Department of Veterans 
Affairs.

    For the reasons stated in the preamble, VA amends 38 CFR Chapter I 
as follows:

PART 17--MEDICAL

0
1. The authority citation for part 17 continues to read as follows:

    Authority:  38 U.S.C. 510, and as noted in specific sections.


Sec.  17.38  [Amended]

0
2. Section 17.38(a)(1)(vii) is amended by removing ``treatment.'' and 
adding, in its place, ``treatment as authorized under 38 CFR 71.50.''

0
3. Part 71 is added to read as follows:

PART 71--CAREGIVERS BENEFITS AND CERTAIN MEDICAL BENEFITS OFFERED 
TO FAMILY MEMBERS OF VETERANS

Sec.
71.10 Purpose and scope.
71.15 Definitions.
71.20 Eligible veterans and servicemembers.
71.25 Approval and Designation of Primary and Secondary Family 
Caregivers.
71.30 General Caregivers.
71.40 Caregiver benefits.
71.45 Revocation.
71.50 Provision of certain counseling, training, and mental health 
services to certain family members of veterans.

(Authority: 38 U.S.C. 501, 1720G, and as noted in specific sections)


Sec.  71.10  Purpose and scope.

    (a) Purpose. This part implements VA's caregiver benefits program, 
which, among other things, provides certain benefits to eligible 
veterans who have incurred or aggravated serious injuries during 
military service, and to their caregivers.
    (b) Scope. This part regulates the provision of caregiver benefits 
authorized by 38 U.S.C. 1720G. Persons eligible for caregiver benefits 
may be eligible for other VA benefits based on other laws or other 
parts of title 38, CFR.

(Authority: 38 U.S.C. 501, 1720G)


Sec.  71.15  Definitions.

    For the purposes of this part:

[[Page 26173]]

    Eligible veteran means a veteran, or a servicemember, who is found 
eligible for a Family Caregiver under Sec.  71.20.
    Family Caregiver means both a Primary and Secondary Family 
Caregiver.
    General Caregiver means an individual who meets the requirements of 
Sec.  71.30.
    Inability to perform an activity of daily living (ADL) means any 
one of the following:
    (1) Inability to dress or undress oneself;
    (2) Inability to bathe;
    (3) Inability to groom oneself in order to keep oneself clean and 
presentable;
    (4) Frequent need of adjustment of any special prosthetic or 
orthopedic appliance that, by reason of the particular disability, 
cannot be done without assistance (this does not include the adjustment 
of appliances that nondisabled persons would be unable to adjust 
without aid, such as supports, belts, lacing at the back, etc.);
    (5) Inability to toilet or attend to toileting without assistance;
    (6) Inability to feed oneself due to loss of coordination of upper 
extremities, extreme weakness, inability to swallow, or the need for a 
non-oral means of nutrition; or
    (7) Difficulty with mobility (walking, going up stairs, 
transferring from bed to chair, etc.).
    In the best interest means, for the purpose of determining whether 
it is in the best interest of the eligible veteran to participate in 
the Family Caregiver program under 38 U.S.C. 1720G(a), a clinical 
determination that participation in such program is likely to be 
beneficial to the eligible veteran. Such determination will include 
consideration, by a clinician, of whether participation in the program 
significantly enhances the eligible veteran's ability to live safely in 
a home setting, supports the eligible veteran's potential progress in 
rehabilitation, if such potential exists, and creates an environment 
that supports the health and well-being of the eligible veteran.
    Need for supervision or protection based on symptoms or residuals 
of neurological or other impairment or injury means requiring 
supervision or assistance for any of the following reasons:
    (1) Seizures (blackouts or lapses in mental awareness, etc.);
    (2) Difficulty with planning and organizing (such as the ability to 
adhere to medication regimen);
    (3) Safety risks (wandering outside the home, danger of falling, 
using electrical appliances, etc.);
    (4) Difficulty with sleep regulation;
    (5) Delusions or hallucinations;
    (6) Difficulty with recent memory; and
    (7) Self regulation (being able to moderate moods, agitation or 
aggression, etc.).
    Personal care services means care or assistance of another person 
necessary in order to support the eligible veteran's health and well-
being, and perform personal functions required in everyday living 
ensuring the eligible veteran remains safe from hazards or dangers 
incident to his or her daily environment.
    Primary care team means a group of medical professionals who care 
for a patient and who are selected 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 veteran.
    Primary Family Caregiver means an individual who meets the 
requirements of Sec.  71.25.
    Secondary Family Caregiver means an individual who meets the 
requirements of Sec.  71.25.
    Serious injury means 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.
    Undergoing medical discharge means 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.
    VA refers to the Department of Veterans Affairs.

(Authority: 38 U.S.C. 501, 1720G)


Sec.  71.20  Eligible veterans and servicemembers.

    A veteran or servicemember is eligible for a Primary or Secondary 
Family Caregiver under this part if she or he meets all of the 
following requirements:
    (a) The individual is either:
    (1) A veteran; or
    (2) A member of the Armed Forces undergoing a medical discharge 
from the Armed Forces.
    (b) The individual has a serious 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.
    (c) Such serious injury renders the individual in need of personal 
care services for a minimum of 6 continuous months (based on a clinical 
determination), based on any one of the following clinical criteria:
    (1) An inability to perform an activity of daily living.
    (2) A need for supervision or protection based on symptoms or 
residuals of neurological or other impairment or injury, including 
traumatic brain injury.
    (3) Psychological trauma or a mental disorder that has been scored, 
by a licensed mental health professional, 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. VA will consider a GAF score to be 
``continuous'' if there are at least two scores during the 90-day 
period (one that shows a GAF score of 30 or less at the beginning of 
the 90-day period and one that shows a GAF score of 30 or less at the 
end of the 90-day period) and there are no intervening GAF scores of 
more than 30.
    (4) The veteran is service connected for a serious injury that was 
incurred or aggravated in the line of duty in the active military, 
naval, or air service on or after September 11, 2001, and has been 
rated 100 percent disabled for that serious injury, and has been 
awarded special monthly compensation that includes an aid and 
attendance allowance.
    (d) A clinical determination has been made that it is in the best 
interest of the individual to participate in the program.
    (e) Personal care services that would be provided by the Family 
Caregiver will not be simultaneously and regularly provided by or 
through another individual or entity.
    (f) The individual agrees to receive care at home after VA 
designates a Family Caregiver.
    (g) The individual agrees to receive ongoing care from a primary 
care team after VA designates a Family Caregiver.

(Authority: 38 U.S.C. 501, 1720G(a)(2))


Sec.  71.25  Approval and Designation of Primary and Secondary Family 
Caregivers.

    (a) Application requirement. (1) Individuals who wish to be 
considered for designation by VA as Primary or Secondary Family 
Caregivers must complete and sign a joint application, along with the 
veteran or

[[Page 26174]]

servicemember. Individuals interested in serving as Family Caregivers 
must be identified as such on the joint application, and no more than 
three individuals may serve as Family Caregivers at one time for an 
eligible veteran, with no more than one serving as the Primary Family 
Caregiver.
    (2) Upon receiving such application, VA will perform the clinical 
evaluations required by this section; determine whether the application 
should be granted; and, if so, whether each applicant should be 
designated as identified in the application.
    (3) An application may be put on hold for no more than 90 days, 
from the date the application was received, for a veteran or 
servicemember seeking to qualify through a GAF test score of 30 or less 
but who does not have a ``continuous'' GAF score available.
    (b) Eligibility to serve as Primary or Secondary Family Caregiver. 
In order to serve as a Primary or Secondary Family Caregiver, the 
applicant must meet all of the following requirements:
    (1) Be at least 18 years of age.
    (2) Be either:
    (i) The eligible veteran's spouse, son, daughter, parent, step-
family member, or extended family member; or
    (ii) Someone who lives with the eligible veteran full-time or will 
do so if designated as a Family Caregiver.
    (3) There must be no determination by VA of abuse or neglect of the 
eligible veteran by the applicant.
    (4) Meet the requirements of paragraph (c) of this section, and any 
other applicable requirements of this part.
    (c) Assessment, education, and training of applicants. Before VA 
approves an applicant to serve as a Primary or Secondary Family 
Caregiver, the applicant must:
    (1) Be initially assessed by a VA primary care team as being able 
to complete caregiver education and training. Such assessment will 
consider any relevant information specific to the needs of the eligible 
veteran, as well as:
    (i) Whether the applicant can communicate and understand details of 
the treatment plan and any specific instructions related to the care of 
the eligible veteran (accommodation for language or hearing impairment 
will be made as appropriate); and
    (ii) Whether the applicant will be capable of following without 
supervision a treatment plan listing the specific care needs of the 
eligible veteran.
    (2) Complete caregiver training and demonstrate the ability to 
carry out the specific personal care services, core competencies, and 
other additional care requirements prescribed by the eligible veteran's 
primary care team.
    (d) Caregiver education and training. For the purposes of this 
section, caregiver training is a program of education and training 
designed by and provided through VA that consists of issues that are 
generally applicable to Family Caregivers, as well as issues specific 
to the needs of the eligible veteran. During this program of education 
and training, family members are eligible for beneficiary travel under 
38 CFR part 70. Respite care will be provided during the period of 
initial caregiver instruction, preparation, and training if the 
participation would interfere with the provision of personal care 
services to the eligible veteran. Caregiver training will cover, at a 
minimum, education and training concerning the following core 
competencies:
    (1) Medication management;
    (2) Vital signs and pain control;
    (3) Infection control;
    (4) Nutrition;
    (5) Functional activities;
    (6) Activities of daily living;
    (7) Communication and cognition skills;
    (8) Behavior management skills;
    (9) Skin care; and
    (10) Caregiver self-care.
    (e) Initial home-care assessment. No later than 10 business days 
after 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 and assess the 
Caregiver's completion of training and competence to provide personal 
care services at the eligible veteran's home, to measure the eligible 
veteran's well being.
    (f) Approval and designation. 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. 
Approval and designation is conditioned on the eligible veteran and 
designated Family Caregivers remaining eligible for caregiver benefits 
under this part.

(Authority: 38 U.S.C. 501, 1720G)

Sec.  71.30  General Caregivers.

    (a) A General Caregiver is a person who:
    (1) Is not a Primary or Secondary Family Caregiver; and
    (2) Provides personal care services to a covered veteran under this 
section, even if the individual does not reside with the veteran.
    (b) A covered veteran, for purposes of this section, is a veteran 
who is enrolled in the VA health care system and needs personal care 
services because the veteran either:
    (1) Is unable to perform an activity of daily living; or
    (2) Needs supervision or protection based on symptoms or residuals 
of neurological care or other impairment or injury.
    (c) No application or clinical evaluation is required to obtain 
benefits as a General Caregiver. Veterans or General Caregivers may 
request any of the benefits listed in Sec.  71.40(a) as needed, from 
the appropriate VA clinicians and staff at their local VA facilities.
    (d) A veteran is not required to meet the eligibility requirements 
in Sec.  71.20 to be considered a covered veteran.

(Authority: 38 U.S.C. 501, 1720G(b)(1), (2))


Sec.  71.40  Caregiver benefits.

    (a) General Caregiver benefits. VA will provide to General 
Caregivers all of the benefits listed in paragraphs (a)(1) through (4) 
of this section.
    (1) Continued instruction, preparation, training, and technical 
support. Caregivers will have access to each of the following services, 
which may be provided through:
    (i) Online and in-person educational sessions.
    (ii) Use of telehealth and other available technologies.
    (iii) Teaching techniques, strategies, and skills for caring for 
the eligible or covered veteran.
    (2) Information concerning the supportive services available to 
caregivers under paragraph (a) of this section and other public, 
private, and nonprofit agencies that offer support to caregivers.
    (3) Counseling and other services, as described under Sec.  71.50.
    (4) Respite care to eligible and covered veterans in support of the 
caregiver that is medically and age appropriate for the eligible or 
covered veteran (including 24-hour per day in-home respite care).
    (b) Secondary Family Caregiver benefits. VA will provide to 
Secondary Family Caregivers all of the benefits listed in paragraphs 
(b)(1) through (6) of this section.
    (1) General Caregiver benefits described in paragraph (a) of this 
section, except that respite care under paragraph (a)(4) is limited to 
veterans

[[Page 26175]]

enrolled in the VA health care system. Respite care may be provided 
during a Family Caregiver's training, as described under Sec.  
71.25(d).
    (2) The primary care team will maintain the eligible veteran's 
treatment plan and collaborate with clinical staff making home visits 
to monitor the eligible veteran's well-being, adequacy of care and 
supervision being provided. This monitoring will occur no less often 
than every 90 days, unless otherwise clinically indicated, and will 
include an evaluation of the overall health and well-being of the 
eligible veteran.
    (3) Continuing instruction, preparation, and training to maintain 
or improve the personal care services provided to the eligible veteran.
    (4) Ongoing technical support, consisting of information and 
assistance to address, in a timely manner, the routine, emergency, and 
specialized needs of the Caregiver in providing personal care services 
to the eligible veteran.
    (5) Counseling, which for the purposes of paragraph (b) of this 
section includes individual and group therapy, individual counseling, 
and peer support groups. Counseling does not include the provision of 
medication, inpatient psychiatric care, or other medical procedures 
related to mental health treatment.
    (6) Primary and Secondary Family Caregivers are to be considered 
eligible for beneficiary travel under 38 CFR part 70.
    (c) Primary Family Caregiver Benefits. VA will provide to Primary 
Family Caregivers all of the benefits listed in paragraphs (c)(1) 
through (4) of this section.
    (1) Secondary Family Caregiver benefits, as listed under paragraph 
(b) of this section.
    (2) Respite care includes 24-hour-per day care of the eligible 
veteran commensurate with the care provided by the Family Caregiver to 
permit extended respite. Respite care will be 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.
    (3) 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 (as defined in 38 U.S.C. 
1725(f)).
    (4) Primary Family Caregivers will receive a monthly stipend for 
each prior month's participation as a Primary Family Caregiver. To 
determine the stipend amount, VA first will determine the eligible 
veteran's level of dependency based on the degree to which the eligible 
veteran is unable to perform one or more activities of daily living 
(ADLs), or the degree to which the eligible veteran is in need of 
supervision or protection based on symptoms or residuals of 
neurological or other impairment or injury, as follows:
    (i) VA will clinically rate the eligible veteran's inability to 
perform each of the seven ADLs listed in the definition of that term in 
Sec.  71.15.
    (ii) VA will clinically rate the eligible veteran's need for 
supervision or protection based on symptoms or residuals of 
neurological or other impairment or injury using the seven impairments 
listed in the definition of that term in Sec.  71.15.
    (iii) Clinical ratings under paragraphs (c)(4)(i) and (ii) of this 
section will be scored as follows: VA will assign a zero if the 
eligible veteran completes the task/activity without assistance; one if 
the eligible veteran requires minimal assistance (can complete 75 
percent or more of the task without supervision or assistance); two if 
the eligible veteran requires moderate assistance (can complete 50 
percent to 74 percent of the task without assistance); three if the 
eligible veteran requires maximal assistance (can complete 25 percent 
to 49 percent of the task without assistance); or four if the eligible 
veteran requires total assistance (can complete less than 25 percent of 
the task or is unable to do the task without assistance).
    (iv) If the sum of all of the ratings assigned is:
    (A) 21 or higher, then the eligible veteran is presumed to require 
40 hours per week of Caregiver assistance.
    (B) 13 to 20, then the eligible veteran is presumed to require 25 
hours per week of Caregiver assistance.
    (C) 1 to 12, then the eligible veteran is presumed to require 10 
hours per week of Caregiver assistance.
    (v) The monthly stipend payment will be calculated by multiplying 
the Bureau of Labor Statistics hourly wage for home health aides in the 
geographic area by the Consumer Price Index and then multiplying that 
total by the number of weekly hours of Caregiver assistance required 
under paragraph (c)(4)(iv) of this section. This product will then be 
multiplied by 4.35.
    (vi) Stipend payments for the first month will be adjusted based on 
the number of days remaining in the month. Stipend payments will also 
be prorated where a Primary Family Caregiver's status is revoked and/or 
a new Primary Family Caregiver is designated prior to the end of a 
month. See Sec.  71.45, Revocation.
    (vii) Nothing in this section shall be construed to create an 
employment relationship between the Secretary and an individual in 
receipt of assistance or support under this part.
    (d) Effective date and payment date of benefits--(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 30 days after the 
date that the joint application was submitted or, if the application 
has been placed on hold for a GAF assessment, 30 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.
    (2) Payment date. The stipend is paid monthly for personal care 
services that the Primary Family Caregiver provided in the prior month. 
Benefits due prior to such designation, 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.

(Authority: 38 U.S.C. 111(e), 501, 1720B, 1720G, 1782)


Sec.  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 with 
mental health services.
    (b) Revocation by the veteran, servicemember, or surrogate. The 
veteran, servicemember, 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 removal.
    (3) VA will review the request for revocation and determine whether 
there

[[Page 26176]]

is a possibility for remediation. This review will take no longer than 
30 days. During such review, the veteran, servicemember, 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, 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 with mental health services, unless one of the following is true, 
in which case benefit will terminate immediately:
    (i) VA determines that the Family Caregiver committed fraud or 
abuse or neglect of the eligible veteran.
    (ii) If the revoked individual was the Primary Family Caregiver, 
and another Primary Family Caregiver is assigned within 30 days after 
the date of revocation.
    (iii) If another individual is assigned 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.
    (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.
    (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 with 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 paragraph (b)(4)(i) through (iv) of this 
section apply, in which case benefits will terminate immediately. 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.

(Authority: 38 U.S.C. 501, 1720G)


Sec.  71.50  Provision of certain counseling, training, and mental 
health services to certain family members of veterans.

    (a) Benefits provided under this section. VA will provide 
consultation, professional counseling, marriage and family counseling, 
training, and mental health services to a family member when necessary 
in connection with the treatment of a disability for which the veteran 
is receiving treatment through VA. For the purposes of this section, 
provision of a benefit is ``in connection with the treatment'' of a 
veteran's disability if, in the clinical judgment of a VA medical 
professional who is providing treatment to the veteran, the provision 
of the benefit to the family member would further the objectives of the 
veteran's medical treatment plan. The listed benefits provided under 
this section are to be provided within the following guidelines:
    (1) All benefits will consist of psychotherapy, counseling, 
training, or education; VA will not provide prescriptions or 
medications to family members. VA also will not provide inpatient 
services under this section.
    (2) This section does not authorize the provision of clinical 
evaluation or treatment that is not necessary in connection with the 
veteran's treatment or that involves treatment other than consultation, 
professional counseling, marriage and family counseling, training, and 
mental health services.
    (3) Marriage and family counseling includes services to help the 
veteran address mental health issues, manage physical health problems, 
and strengthen environmental supports as specified in the veteran's 
treatment plan. It also includes interventions to reduce the negative 
impact for the veteran of mental illnesses or other medical conditions 
in family members.
    (b) Definition of family member. For the purpose of this section, 
which provides certain benefits and services to eligible family 
members, a family member is:
    (1) A person related to the veteran by birth or marriage who lives 
with the veteran or has regular personal contact with the veteran;
    (2) The veteran's legal guardian or surrogate;
    (3) A Primary or Secondary Family Caregiver or a General Caregiver; 
or
    (4) The individual in whose household the veteran has certified an 
intention to live.
    (c) Family members or caregivers who need treatment not related to 
the treatment of the veteran. Where a VA clinician believes that 
medical care or services are needed for a family member but cannot 
provide benefits under this section because such need is not necessary 
in connection with the treatment of the veteran, VA may refer such 
family member to an appropriate provider in the community, so that the 
family member may obtain care through other health coverage including 
care to which a Primary or Secondary Family Caregiver may be eligible 
under this part.

(Authority: 38 U.S.C. 1720G, 1782)


[FR Doc. 2011-10962 Filed 5-3-11; 4:15 pm]
BILLING CODE 8320-01-P