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Federal Register / Vol. 86, No. 181 / Wednesday, September 22, 2021 / Rules and Regulations Family Caregiver would receive a lesser stipend amount, an advanced notice would be issued to the legacy applicants, legacy participants, and their Family Caregivers on October 1, 2021 at the conclusion of the one-year period and the change would take effect not less than 60 days following this notification. For those determined to no longer be eligible, benefits would be extended for an additional 90 days after the date of discharge. Individuals who VA is unable to reassess prior to October 1, 2021 and who are ultimately determined not eligible or eligible but with a lesser stipend amount would continue to receive benefits in effect prior to October 1, 2020 for longer than those reassessed prior to October 1, 2021 for no reason other than when VA
conducted their reassessment.
When VA established the initial oneyear transition period for legacy participants, legacy applicants, and their Family Caregivers, it was intended to provide a reasonable amount of time for VA to conduct reassessments, minimize disruption to those individuals, and provide a fair and reasonable time for transition. 85 FR at 46253. VA intended that all legacy applicants, legacy participants, and their Family Caregivers would have the same transition period, regardless of when the reassessment is completed during the one-year transition period.
Id. This transition period was intended to ensure equitable treatment for all legacy applicants, legacy participants, and their Family Caregivers. Id.
Extending the transition period for an additional year beyond the one-year period beginning October 1, 2020 for all legacy participants, legacy applicants, and their Family Caregivers will continue to ensure equitable treatment among this cohort.
Changes to 38 CFR Part 71
For the reasons explained above, VA
amends its regulations codified in 71.20 regarding program eligibility, 71.30 regarding reassessments, and 71.40 regarding caregiver benefits, to extend the transition period for legacy applicants, legacy participants, and their Family Caregivers from one year to two years that is, until October 1, 2022
and to extend the time period for reassessments of such individuals from one year to two years that is, until October 1, 2022.
VA amends 71.20 by removing the words one year in 71.20b and c, and adding, in their place, the words two years.
VA amends 71.30 by removing the words one-year in paragraphs e1

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and 2 and adding, in their place, the words two-year.
VA also amends 71.40 by removing the words one year in paragraphs c4iB through D and adding, in their place, the words two years. VA
similarly amends paragraph c4iiC2i by removing the words one-year and adding, in their place, the words two-year. Lastly, VA
amends paragraph c4iiC2ii and the note to paragraph c4iiC2 by removing the words the date that is one year after October 1, 2020, and adding, in their place, the words October 1, 2022.
Administrative Procedure Act The Secretary of Veterans Affairs finds that there is good cause under the provisions of 5 U.S.C. 553bB to waive prior notice and an opportunity for public comment and publish this rule, as notice and comment would be contrary to public interest. VA is issuing this rule to extend the time to complete reassessments for legacy applicants, legacy participants, and their Family Caregivers for an additional year, through September 30, 2022, and to similarly extend the transition period.
As discussed earlier, VA will not be able to complete the required reassessments of this legacy cohort by October 1, 2021.
Absent regulatory action, effective October 1, 2021 the reassessment period of legacy applicants, legacy participants, and their Family Caregivers sunsets.
This would leave legacy applicants, legacy participants, and their Family Caregivers in a state of uncertainty about their status and eligibility for benefits moving forward. Extending the reassessment period in advance of October 1, 2021 will provide clarity to the legacy applicants, legacy participants, and their Family Caregivers about the duration of their current benefits and about next steps.
Additionally, if the date to complete the reassessments and the period of transition is not extended, legacy applicants, legacy participants, and their Family Caregivers who are reassessed and found to be no longer eligible for PCAFC, or eligible but with a reduced stipend amount, would be impacted at different times. Some legacy participants, legacy applicants, and their Family Caregivers would experience negative impacts before others within this same cohort based on when they are reassessed. The varying impact would result from no reason other than that VA was able to reassess certain individuals earlier than others.
Therefore, VA must amend its regulations to provide a one-year extension for the reassessment period
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and for VA to conduct the reassessments.
Notwithstanding the effective date of this rulemaking, VA invites public comments on this interim final rule and will fully consider and address any comments received. Generally, VA
would seek notice and comment in advance of a rule becoming effective.
However, in this circumstance, VA does not have sufficient time to provide the public with the opportunity for prior notice and comment and have the amendments effective by October 1, 2021. As noted earlier in the preamble, the number of applications received has far exceeded expectations, and by focusing its resources on processing new applications while also implementing new regulations and processes for evaluating PCAFC
eligibility, VA was unable to prioritize the reassessment of legacy participants, legacy applicants, and their Family Caregivers. In October 2020, VA
received an estimated 18,400
applications with a decline in applications received in November and December 2020. However, during the second quarter of FY 2021, VA received another surge in applications, which further delayed VAs ability to prioritize the reassessment of legacy participants, legacy applicants, and their Family Caregivers. To manage these competing issues, VA explored options to complete the reassessments while continuing to process applications. During this exploration, however, VA determined that, even with processing applications while conducting legacy reassessments, an additional 12-month period would be required to complete the legacy reassessments, which is the basis for this interim final rule.
For the reasons stated above, the Secretary also finds good cause under 5
U.S.C. 553d3 to make this interim final rule effective on the date of its publication in the Federal Register.
VA recognizes that this extension will continue for an additional year the existing disparity between PCAFC
participants who applied for the program on or after October 1, 2020 and were approved for PCAFC based on the existing regulatory criteria, and legacy participants, legacy applicants, and their Family Caregivers who were approved for PCAFC based on preOctober 1, 2020 regulatory requirements. However, any harm associated with continuing the current inequity between these two cohorts for an additional one-year period, does not outweigh the harm associated with the alternative outcomes that would result in the absence of this regulatory action.
In contrast to PCAFC participants who
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