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Federal Register / Vol. 86, No. 181 / Wednesday, September 22, 2021 / Rules and Regulations monthly stipend, by one year. This change will provide VA with an additional year to complete reassessments of legacy participants, legacy applicants, and their Family Caregivers. This change will also ensure that legacy participants, legacy applicants, and their Family Caregivers are treated equitably.
DATES:
Effective date: This interim final rule is effective September 22, 2021.
Comment date: Comments must be received on or before November 22, 2021.
ADDRESSES: Comments must be submitted through www.Regulations.gov. Comments received will be available at regulations.gov for public viewing, inspection or copies.
FOR FURTHER INFORMATION CONTACT:
Colleen Richardson, PsyD, Executive Director, Caregiver Support Program, Patient Care Services, Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Ave. NW, Washington, DC 20420, 202 4617337.
This is not a toll-free number.
SUPPLEMENTARY INFORMATION:
Background In 2010, Congress established section 1720G of title 38 of the United States Code U.S.C.. Caregivers and Veterans Omnibus Health Services Act of 2010, Public Law Pub. L. 111163, 124 Stat.
1130 2010. Section 1720G required VA, in part, to establish a Program of Comprehensive Assistance for Family Caregivers PCAFC for Family Caregivers of eligible veterans who have 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. VA implemented PCAFC through its regulations in part 71 of title 38, Code of Federal Regulations CFR. PCAFC provides certain benefits such as training, respite care, counseling, technical support, beneficiary travel to attend required caregiver training and for an eligible veterans medical appointments, access to health care if qualified through the Civilian Health and Medical Program of the Department of Veterans Affairs CHAMPVA, and a monthly stipend. 38
U.S.C. 1720G; 38 CFR 71.40.
In 2018, section 161 of the John S.
McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act of 2018 VA MISSION Act of 2018, Public Law 115182, 132 Stat. 1393 2018, amended 38 U.S.C. 1720G by expanding PCAFC to Family Caregivers of eligible
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veterans who incurred or aggravated a serious injury in the line of duty before September 11, 2001 in a phased approach, establishing new benefits for designated Primary Family Caregivers of eligible veterans, and making other changes affecting program eligibility and VAs evaluation of PCAFC
applications. To incorporate these and other necessary changes to improve and expand VAs PCAFC, VA amended 38
CFR part 71. 85 Federal Register FR
46226 July 31, 2020. These changes took effect on October 1, 2020. Id. As part of that rulemaking, VA revised the eligibility criteria for PCAFC in 71.20.
VA recognized that there were individuals whose applications had already been received by VA and were in the process of being evaluated under the pre-October 1, 2020 criteria and who would be approved for PCAFC on or after October 1, 2020, as well as individuals who were already participating in PCAFC before October 1, 2020. Id. VA classified these individuals as legacy applicants and legacy participants, respectively. 38 CFR
71.15. A legacy applicant is a veteran or servicemember who submits a joint application for PCAFC that was received by VA before October 1, 2020 and for whom a Family Caregivers was approved and designated on or after October 1, 2020, subject to certain criteria. Id. A legacy participant is an eligible veteran whose Family Caregivers was approved and designated by VA under 38 CFR part 71
as of September 30, 2020 so long as the Primary Family Caregiver as applicable continues to be approved and designated as such. Id.
In 71.30, VA set forth requirements for reassessment to determine whether legacy applicants, legacy participants, and their Family Caregivers would continue to be eligible for PCAFC.
Paragraph e1 states that if the eligible veteran is a legacy participant or a legacy applicant, that eligible veteran and their Family Caregivers will be reassessed by VA during the one-year period beginning on October 1, 2020 to determine whether the legacy participant or legacy applicant meets the new eligibility requirements in 71.20a. VA acknowledged that it would need to reassess legacy applicants, legacy participants, and their Family Caregivers to determine their continued eligibility for PCAFC, and believed one year from the effective date of the final rule would be necessary and appropriate to ensure these reassessments were completed. 85 FR at 46253.
VA foresaw possible impacts of the new regulation on the legacy cohort. For
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instance, there was the possibility that a legacy applicant or legacy participant would no longer be eligible for PCAFC
under the criteria in 71.20a. In addition, there was the possibility that the legacy applicant or legacy participant would be determined eligible for PCAFC, but the Primary Family Caregiver would be eligible for a stipend amount that was less than they were receiving under the previous regulations. Because of these potential impacts, VA allowed for an extension of eligibility under the pre-October 1, 2020
criteria for a one-year transition period under 71.20b and c for legacy participants, legacy applicants, and their Family Caregivers. During this transition period, legacy participants, legacy applicants, and their Family Caregivers would continue to be eligible to receive benefits under PCAFC and would not have the amount of their monthly stipend reduced except as the result of the eligible veteran moving to a new address.
In 71.40c4, VA set forth requirements for determining monthly stipend amounts for Primary Family Caregivers. This paragraph explains how the stipend is calculated for Primary Family Caregivers of legacy participants and legacy applicants during the one-year transition period.
As explained in the proposed rule, VA believed that a one-year transition period was reasonable. It would allow individuals who are participating in PCAFC as of September 30, 2020, the day before the effective date of the rule, to remain eligible for the program and not experience a stipend amount decrease except as specified while VA
completes a reassessment to determine eligibility under the new criteria regardless of when such reassessment occurred during the one-year period.
This was important because it would be inequitable for similarly situated veterans and their Family Caregivers to be disadvantaged based solely on when VA conducted their reassessment. In addition, this one-year period would minimize disruption to these individuals by allowing for a period to plan and adjust to the possibility of a legacy applicant or legacy participant being determined no longer eligible or eligible such that the monthly stipend would be a lesser amount. We believed this to be fair, reasonable, and an appropriate use of taxpayer dollars. 85
FR 13356 March 6, 2020; 85 FR 46226
July 31, 2020.
For the reasons explained below, we are extending the one-year transition period and timeline for VA to complete reassessments of legacy applicants, legacy participants, and their Family
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