[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]]
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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
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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