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Note: The Independence Fund’s Chief Advocacy Officer Bob Carey provides a summary of the VA Caregiver Expansion and Reform Proposed Regulation that was presented on March 6, 2020. To download a copy of the summary, click here. To view the original Regulation, click here.

MEMORANDUM

Subj:     VA Caregiver Expansion and Reform Proposed Regulation

Date:    March 6, 2020

From:   Bob Carey, Chief Advocacy Officer

Background

Over the last two years, the Independence Fund’s been an advocacy leader for the expansion and reform of the VA’s Caregiver Program.  While we’ve often engaged when the VA takes actions we find unconscionable (such as the Nashville VA discharging or demoting from the program two triple amputees), we’ve focused most of our effort on fundamental reform to the program.

The Independence Fund’s consistently called for three main reforms to the Caregiver program:

  1. Establish a permanent Caregiver designation for the most seriously disabled veterans for whom improvement is unlikely;
  2. Establish national eligibility and re-eligibility review procedures and standards and move away from widely varying eligibility determinations made by individual VISNs or Medical Centers; and
  3. Extend the stipend beyond 90 days after the death of the veteran or where the veteran is discharged from the program or lowered in tier rating.

Already almost 18 months behind the MISSION Act mandated timeline to reform and expand the Caregiver program, the proposed regulation published today in the Federal Register does not offer any update on when the expansion of the program will be executed.  But given the information we’ve gleaned from meetings with VA officials and public testimony, it is doubtful the required Caregiver tracking information technology system will be certified by the VA before late summer of this year, if not the fall.

Further, the comment period for this proposed regulation doesn’t close until May 5, 2020, and we expect VA will require at least two months, more likely three, to review each of the comments, consider them, and draft their responses as part of the final Rule publication.  Given that, we would not expect the final version of this regulation to be finalized until Labor Day at the earliest.  Given the repeated delays in the rollout of the Caregiver Information Technology Tracking System, required to be certified by the VA before pre-9/11 applications can be adjudicated, we would not expect such a final certification before late summer as well.  The VA could act with surprising speed for a bureaucracy as large as it is, and get this done sooner, but history of their performance to date would argue otherwise.

Last, The Independence Fund’s also recommended to VA they start accepting applications for pre-9/11 veterans once the regulation is finalized, even if the Caregiver IT system is not certified.  The advantage of doing that is the VA can make substantial evaluation progress on those applications while the IT system is being built out, minimizing the time after the system is certified for those applications to get their final decision.  In the best scenario, accepting applications before the system is certified could hopefully lead to the new applications being approved the day the IT system is certified rather than waiting until that certification date for veterans to be allowed to even apply for the program.  We will continue to push for that, although the lateness of this proposed regulation being published pushes any possible date for it to be finalized very close to the expected IT system certification date.

HR 5701, Care for the Veteran Caregiver Act

Given the history of delays in reforming and expanding the Caregiver program, The Independence Fund worked closely with Representatives Hudson (R-NC) and Rice (D-NY) to legislatively mandate the three reforms discussed above.  That bill, HR 5701, introduced January 29, 2020, is already endorsed by more than 15 veteran and caregiver organizations, and is gaining more endorsements weekly.  As will be discussed below, the proposed regulation does not do as much as the legislation to reform the program, or does not address these issues at all, and so we will continue to press for passage of this legislation.

Discussion:

Below is a description of the key elements of this proposed regulation.  Coming in at an eye-glazing 231 pages, there may be elements we have missed, or we may not have understood these elements properly.  Given the comment period is 60 days long, we will hopefully be able to get clarification from VA on some of these provisions quickly so that we (and you) can properly analyze these provisions and give an adequate public comment.  Further, we will work closely with other veteran and caregiver organizations, especially those with whom we’ve worked on HR 5701, to come to a common understanding of the proposed regulation.  Finally, we will be putting forth an online comment system for supporters of The Independence Fund to easily comment on the proposed regulation, and to incorporate the positions The Independence Fund puts forth into their own comments.

Key Elements of the Proposed Regulation:

Initial Eligibility:

The Activities of Daily Living standards will still be used, but now to initially qualify for the program (which I believe is roughly equivalent to the current Tier 2 Caregiver rating), the veteran will need to show:

  • They need assistance with at least one of the ADLs EVERY time they do that activity;
  • They have at least a 70% disability rating from the VA; and
  • The service connection to the need for assistance with the ADL.

The VA specifically admits this will exclude many veterans who previously would be eligible for the caregiver program, but the VA states they wish to change the program by focusing on “eligible veterans with moderate and severe needs”.

However, the proposed regulation also opens eligibility to anyone that meets those above criteria regardless of the type of “injury”.  Specifically, the VA says that disability caused by any means – injury, illness, contamination, etc. – will qualify for the program.  Individuals previously excluded because their disability or inability to perform the ADL was due to an illness will now be eligible for the program.

Higher Level Eligibility:

To qualify for the higher need Caregiver rating (and stipend) the veteran will need to show they are “unable to self-sustain in the community”, which is a new term being introduced with this regulation.  That term means the veteran:

  • Requires assistance on at least three ADLs EVERY time they do that activity, or
  • Needs supervision, protection, or instruction on a CONTINUOUS basis.

The system is no longer determining levels of eligibility based on equivalent hours the caregiver would need to perform this assistance, only on what assistance and/or monitoring the veteran requires.

Eligibility Reassessment:

The new regulation keeps the annual eligibility review and continues to allow (but not require) the reassessment to include a home visit.  The Independence Fund has long pushed for a permanent Caregiver designation for the most seriously disabled veterans, but the VA specifically says they, “do not believe that Congress intended for PCAFC participants’ eligibility to never be reassessed after the initial eligibility determination, particularly as an eligible veteran’s and Family Caregiver’s continued eligibility for the program can evolve.”

However, they do allow the VA to adjust those reassessment periods.  Unfortunately, they don’t spell that out in the new regulation, and instead say they will leave that to be determined by policy documents, outside the regulatory process.  The VA gives itself the freedom to adjust those reassessments to more frequently than annually based upon various clinical factors, especially if they think a veteran is going to get significantly worse or better in the next year.

As well, the VA gives itself the freedom to adjust those reassessments to less frequently than every year, but they keep some type of periodic reassessment requirement, although how infrequently that would be is not discussed.

Wellness Checks:

Saying they are responding to prior public comments, the VA proposes to reduce what are now quarterly wellness checks to only every six months.  Further, they specifically allow for those checks to be done by phone or other means than an in-home visit, but still require at least one in-home check per year.  The wellness checks can also check the adequacy of assistance and health of the Caregiver, if they think it will impact the provision of assistance.

Eligibility Evaluation Process:

Despite the repeated calls by veteran and caregiver groups for greater standardization of the eligibility assessments and reassessments, the VA pretty much doubles down on giving itself flexibility to determine who will do the eligibility assessments and reassessments.  Indeed, the new regulation specifically removes the Primary Care Team as a required part of the assessment process, with VA saying the primary care teams may not be the most appropriate clinical team to do the assessments.  Indeed, the implication of the explanatory text appears to be that:

  • First, they want to be able choose whichever clinician they think best at the local assessment authority, and
  • Second, they may even want to specifically exclude primary care teams from the assessments.The implication of the explanatory text appears to be the VA may view the clinical teams as “too close” to the care of the veteran, and therefore may skew the assessment towards a higher rate of eligibility than the VA would otherwise wish.  Again, this is reading between the lines, but the implication seems clear.

Stipend:

The proposed regulation gets rid of trying to match the stipend to the local pay rate for home health aides, and instead simply uses the government employee pay-scale (called the GS Scale) for a GS-4, Step 1 pay rate.  That pay rate is often adjusted for local cost of living, but the basic rate today is $26,233.00.

If someone is eligible for the higher-level stipend (3 ADLs or continuous monitoring), then they get the full $26,233.00 per year.  If they only qualify for the lower level (one ADL) then they get 62.5% of that GS-4, Step 1 rate, or $17,051.00 per year.

There are only two stipend levels under the new regulation.

CHAMPVA:

Eligibility for, and provision of, CHAMPVA benefits, appears to be relatively unchanged.

Financial Counseling:

The MISSION Act requires VA to provide financial counseling services.  VA will provide that but limited to financial matters directly related to developing a financial plan for the veteran and the caregiver: household budgeting, debt management, retirement planning, and insurance.  It will not include specific investment advice nor would it cover professional or business financial planning.

Legal Counseling:

Similarly, the MISSION Act requires VA to provide legal services.  Again, the VA will limit those to services related to the needs of the veterans and caregivers.  It will include things like advanced directives, powers of attorney, simple wills, guardianship documents, caregiving legal education and referral to community attorneys for representation on other matters.  It will not include legal assistance with divorce, business or professional matters, or legal action against the VA or the federal government.

Revocation and Discharge:

The VA now will differentiate for being kicked out of the program “for cause” (fraud, failure to comply, failure to participate, etc.) and being discharged from the program because the veteran is discharged because they got better, or because the veteran died.  Being kicked out for cause will be called “Revocation”, otherwise it will be called “Discharged”.  And both the Veteran and the Caregiver will be individually discharged, likely at different dates as the caregiver gets at least 90 days of stipend and CHAMPVA after the veteran is discharged.

The proposed regulation will require VA to give the veteran and caregiver 60 days-notice of discharge.  But, the continuation of stipend and CHAMPVA still only continues for 90 days.  The implication in the proposed regulation explanations is that the Caregiver would effectively get 150 days from notice of discharge to loss of stipend and CHAMPVA, but I’m not clear if that’s the case.  Further, that 150-day period only seems to be the case if the veteran is still alive but being discharged because s/he got better.  If the veteran dies, it appears the 90-day cessation of stipend and CHAMPVA would be from the date of death.  So, theoretically, the Caregiver will get benefits for a longer time if the veteran remains alive and is discharged from the program than if the veteran passes away, where the veteran’s family also loses the disability compensation benefits as well upon the veteran’s death.

Frankly, we’re confused by this issue and are trying to research it more.

Caregiver Responsibilities and Personally Providing the Caregiver Services:

Most of the training, participation, and personal capability requirements of the Caregiver in the current program appear to carry over to the new program.  However, the VA does add an explicit requirement in the proposed regulation caregivers personally deliver the personal care services.  They will not be able to hire someone else to do that for them.  The only exception appears to be for temporary absences, such as when respite care is provided.

Current Caregiver Grandfathering:

Given the substantial changes to eligibility and benefits for current caregivers, the proposed regulation gives current caregivers (as of the date this regulation is finalized) a year to continue to participate in the program with the old eligibility requirements and benefits.  If the veteran comes up for their annual review in that first year, they will continue to use the old eligibility criteria and benefits.

However, if the veteran moves in that grandfathered year, even to the house next door from where they currently live, then they will have to be reassessed under the new eligibility criteria, and if they remain in the program, the Caregiver will receive the new benefit levels.  At the end of the grandfather year, the veteran will be reassessed under the new criteria, and if kept on in the program after that grandfather year, the caregiver will receive the new benefit levels.

Disclaimer

I’m not a lawyer, I’m not providing legal advice, and I could very well be mistaken on some of these points.  But we’ve read and re-read the regulation, and we believe it’s important to get as good of information as we can, in a format that’s not legalese gobbledy-gook, as part of our advocacy activities.  If you think we have this wrong or missed an important element, please contact us at [email protected] with your concerns, ideas, or points.

Next Steps

We will be drafting The Independence Fund’s initial comment to the Federal Register in the next two weeks.  After that, we’ll post it online, and just as we did with the Community Care Access Standard regulations, we will invite you and our supporters to join our collective comment efforts in the Federal Register.  We use an online tool that allows you to sign your name to a pre-drafted letter, and then automatically submits that letter for you to the Federal Register.  However, participating in our system and submitting a comment through our system doesn’t negate your ability to submit your own comment later or before.  Especially if you want to go into greater detail than what we will offer through our online system.

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