VA Caregiver Support Regulation Final Rule and Amendment Overview

In this post I’m going to provide you with excerpts from the regulation, 38 CFR 71, final rule and amendments, 80 FR 1357 January 09, 2015. It is 22 pages including the amendments which are listed on the last 3 pages. It’s a very good read to understand the decisions made regarding the two (2) caregiver support programs. I only provided a few examples below of the type of information you can find.

My Note: To provide an overview of the purpose. See the below excerpt from page 1357.

Purpose of the Final Rule. …. 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).

My Note: For those wondering if a Servicemember can receive the FRCP and the VA’s Caregiver Support, Program of Comprehensive Assistance for Family Caregivers (PCAFC) and if Veterans can receive Aid & Attendance and PCAFC – the answer is YES. See the excerpt below from pages 1360 – 1361. 

Examples of such programs, as provided by commenters, included the program of monetary compensation for certain servicemembers provided by DoD under 37 U.S.C. 439, and the Federal Recovery Coordination Program (FRCP). We make no changes based on these comments, as we do not believe that these other programs are comparable, nor are they intended to be comparable, to the Program of Comprehensive Assistance for Family Caregivers.

The monetary compensation offered by DoD under 37 U.S.C. 439, unlike the Program of Comprehensive Assistance for Family Caregivers, does not provide mental health services, healthcare, or a monthly stipend for eligible Family Caregivers. Instead, DoD pays ‘‘monthly special compensation’’ directly to qualifying servicemembers. Moreover, DoD’s eligibility criteria are more stringent than the criteria in the Program of Comprehensive Assistance for Family Caregivers. An eligible individual under section 439 must have a ‘‘catastrophic’’ injury or illness, be certified by a licensed physician to be in need of assistance from another person, and in the absence of such assistance must require ‘‘hospitalization, nursing home care, or other residential institutional care.’’ 37
U.S.C. 439(b).

Similarly, the FRCP functions very differently than the Program of Comprehensive Assistance for Family Caregivers. The FRCP provides oversight and coordination of clinical and non-clinical care for eligible severely wounded, ill, or injured servicemembers and veterans through recovery, rehabilitation, and reintegration into their home community, while Family Caregiver benefits are intended to provide support and assistance to designated and approved Family Caregivers to enhance the health and well-being of eligible veterans participating in the Program of Comprehensive Assistance for Family Caregivers.

Based on the differences between the Program of Comprehensive Assistance for Family Caregivers and the programs discussed by the commenters, we do not agree that the rule should be amended to match or bridge perceived gaps with other Federal government programs.

My Note: A Veteran doesn’t go through a C&P process. See excerpt below from page 1361.

Second, the stipend provided to a caregiver under section 1720G is not disability compensation, and is not related to VA’s disability compensation regulations. The stipend is paid directly to the Family Caregiver and not the veteran, and is calculated based on the degree of assistance required by the veteran, and not the veteran’s rated level
of disability. Disability compensation schedules are designed to measure the effect of disease or injury on a veteran’s earning capacity, and not the level of personal care services needed by a veteran.

Finally, Congress could easily have linked the Family Caregiver stipend to VA disability compensation; however, section 1720G mandates that VA create a program that is distinct from virtually all other VA benefits programs. In turn, the regulations implementing the stipend payments under the Program of Comprehensive Assistance for Family Caregivers were specifically established to meet the goals of the statute governing the Program of Comprehensive Assistance for Family Caregivers. As such, the Family
Caregiver stipend is designed to enable caregivers to provide certain homebased care—it is not designed to supplement, replace, or be dependent in any manner on the level of disability compensation received by the veteran.

My Note: For those being told the PCAFC is not a long term program. See the below excerpt from page 1362. 

We also interpret section 1720G to provide Family Caregiver support and assistance for the benefit of individuals with longterm disabilities, and not episodic flare ups that temporarily establish the need for a Family Caregiver; this is the basis for the required six-month period. We reiterate from the interim final rule that this requirement meets the intent of the statute to benefit persons with longer term care needs. The law contemplates training, payment of compensation, and ongoing monitoring of veterans
receiving Family Caregiver services in their homes, all of which support a framework that will benefit those with longer-term care needs.

My Note: For those who are being revoked or denied because their Veteran can perform some of the eligibility criteria but not 100% of the time. I cannot find anything in the law, statue, regulation, regulation final rule/amendment and the directive prohibiting a Veteran from driving, working or attending college; and prohibiting a Caregiver from working or attending college. See the below excerpt from page 1363.

We do not interpret section 1720G to permit caregiver benefits and services for individuals who, though they may benefit from such assistance, can perform tasks safely and independently 100 percent of the time without a caregiver, for instance by using assistive devices or adaptive equipment. The ‘‘significantly enhances’’ phrase in the definition of ‘‘[i]n the best interest’’ therefore does not serve to unduly restrict the
provision of Family Caregiver benefits, but rather ensures that these benefits are
provided to only those veterans and servicemembers who actually require them to safely live and receive care in the home.

My Note: For those unaware it’s the Veteran’s primary care team’s responsibility to perform the clinical responsibilities. See the below excerpt from page 1365. 

The rule states in § 71.25(f) that ‘‘if the eligible veteran and at least one applicant meet the requirements of this part, VA will approve the application and designate Primary and/or Secondary Family Caregivers, as appropriate. This approval and designation will be a clinical determination authorized by the eligible veteran’s primary care team.’’ We intend that the clinical determinations made under § 71.20 regarding the veteran’s or
servicemember’s initial eligibility as well be authorized by a primary care team versus a single individual, and agree with the commenter that § 71.20 be so amended.

We additionally make one change to the definition of ‘‘Primary care team’’ as that term is defined in § 71.15 to indicate that we are referring to a group of medical professionals who care for a patient and who are selected ‘‘by VA.’’ We do not believe this is a substantive change, as the rule clearly states that VA is responsible for conducting all clinical assessments and determinations in the process of assessing and approving Family Caregivers. See § 71.25(a)(2), (b)(3), (c), (c)(1), (e), and (f).

Section 71.25(c) further mandates that during the application process, the primary care team will screen the family member to ensure the family member meets criteria to complete caregiver education and training, and thereby is deemed able to provide caregiver assistance.

My Note: For those unsure what is required of the home visits. The home visits are not to inspect every room in your house. See the below excerpt from pages 1365 – 1366.

Section 71.25(e) is amended to make clear that the purpose of the home visit is for the
VA clinician or clinical team to assess the caregiver’s completion of training and competence to provide personal care services to the eligible veteran, and to measure the eligible veteran’s wellbeing.

My Note: For those unsure of the appeals process. See the below excerpt from page 1366. 

In response, we first note that medical determinations are not subject to the jurisdiction of the Board of Veterans’ Appeals under 38 U.S.C. 7104, or pursuant to our implementing
regulation, which states that ‘‘medical determinations, such as determinations of the need for and appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters and are beyond the [Board of Veterans’ Appeals’] jurisdiction.’’ 38 CFR 20.101(b).

We additionally note that the Caregivers Act expressly states that ‘‘[a] decision by the Secretary under [the Program of Comprehensive Assistance for Family Caregivers or the Program of General Caregiver Support Services] affecting the furnishing of assistance or support shall be considered a medical determination.’’ 38 U.S.C. 1720G(c)(1). Therefore, all determinations that affect the furnishing of assistance or support through the programs under 38 U.S.C. 1720G are medical determinations as a matter of law, and as such may not be adjudicated in the standard manner as claims associated with veterans’ benefits. We consequently do not make any changes to the rule.

Instead, VHA has a clinical appeals process that will be sufficient to resolve such conflict. Under the VHA appeals process, patients or their representatives have access to a fair and impartial review of disputes regarding clinical determinations or services that are not resolved at the facility level. This process is intended to resolve conflicts about whether an appropriate clinical decision has been made, and the process certainly can resolve whether the adverse decision was based, for example, on a misreading of a date in a military record. Other issues that are being resolved through the VHA clinical appeals process include basic eligibility, determination of ‘‘illness’’ or ‘‘injury,’’ and the tier level assigned for stipend payment. This appeals process does not defy the statutory restriction at 38 U.S.C. 1720G(c)(1) against appeals to the Board of Veterans’ Appeals because it is specifically designed to resolve conflicts based upon medical determinations.

We note, however, that not all benefits provided to caregivers are provided under 38 U.S.C. 1720G. Certain benefits afforded to caregivers by 38 U.S.C. 1720G are provided
through other statutory authorities, and decisions regarding those benefits are
therefore not made under 38 U.S.C. 1720G. For example, decisions by the Secretary affecting the payment of beneficiary travel (under 38 U.S.C. 111(e)(2) as authorized by 38 U.S.C. 1720G(a)(3)(A)(i)(IV)), the provision of CHAMPVA (under 38 U.S.C. 1781 as authorized by 38 U.S.C. 1720G(a)(3)(A)(ii)(IV)), and debt collection and waiver (under 31 U.S.C. 3711 and 38 U.S.C. 5302) are examples of matters decided under statutory
authorities other than 38 U.S.C. 1720G. Appeal processes associated with those
decisions, under applicable statutes and regulations, may be pursued by caregivers who disagree with a VA decision made under those authorities. See e.g., 38 CFR 70.40, 17.276, 1.900–1.970.

My Note: Reference to stipend payments. See the below excerpt from page 1368.

Generally, we reiterate our rationale that the stipend provided to a Primary Family Caregiver under § 71.40(c)(4) is not disability compensation, and is not related to VA’s
disability compensation authorities, to include section 1115. The stipend is paid directly to the Primary Family Caregiver and not the veteran, and is calculated based on of the degree of assistance required by the veteran, and not the veteran’s rated level of disability.

My Note: 40-Hour Cap on Compensable Personal Care Services. See the below excerpt from page 1369.

Moreover, we believe that it could jeopardize the health and welfare of the eligible veteran to require or expect a Primary Family Caregiver to work more than 40 hours per week. A significant factor in the passage of the Caregivers Act was the amount of work and stress that caregiver’s experience. The Program of Comprehensive Assistance for Family Caregivers includes supplemental home-based care and respite care as resources for an eligible veteran who requires more than 40 hours per week of care. Neither the law, nor sound VA policy, contemplates overburdening caregivers by expecting them to provide care for more than 40 hours per week.

My Note: The directive or verbal directives cannot alter the guidance of the regulation. See the below excerpt from page 1375.

Effect of Rulemaking Title 38 of the Code of Federal Regulations, as revised by this rulemaking, represents VA’s implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.

My Note: Amendments to the regulation, 38 CFR 71, pages 1376 – 1378.

In my next post I will discuss the VHA Directive 1152 June 2017.

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