Thursday, December 10, 2020

VA’s New Caregiver Regulations - By Yelena Duterte (UIC John Marshall Law School)

In October of this year, the VA implemented their long-awaited Caregiver Program Regulations. In 2018, Congress passed the VA Mission Act which expanded the VA Caregiver Program to veterans who served before September 11, 2001. Veterans who served before May 7, 1975 or after September 11, 2001 are currently the only eligible veterans for the program. However, in 2022, all veterans, regardless of service dates, will be eligible for the VA Caregiver Program. The VA Mission Act also added supplemental benefits for veterans in the program, including financial and legal services. In addition to simply implementing these laws, the VA amended many of their regulations surrounding the substantive eligibility requirements of the program, stipend levels and amounts, and some structural and procedural changes.

To provide a bit of background, the VA Caregiver Program was originally created by Congress in 2010. Congress designed this program to assist post-9/11 veterans who were in need of care due to a serious injury. The program pays a monthly stipend to caregivers for the care they provide to eligible veterans. Additionally, the VA provides healthcare and training to those caregivers.

One of the major changes in terms of eligibility focused on the term serious injury. Originally, the VA defined that a serious injury required one of the following: (1) an inability to perform an activity of daily living, (2) a need for supervision or protection based on symptoms or residuals of a neurological or other impairment, (3) a GAF score of 30 or less, or (4) rated at 100% for an injury that occurred in the line of duty and has been rated at 100% with aid and attendance.

With the new regulation changes, the VA now simply defines serious injury as having a service connected disability rating of at least 70%, either singular or combined.  Additionally, the VA removed the required nexus between the serious injury which requires a need for care and the service related injury. This means that the VA now only requires that the veteran meet the new criteria for serious injury (70% rating) and be in need of a caregiver, regardless of whether the need for care stems from the service related injury. This change may help some elderly veterans become eligible for the Caregiver program.

Although on its face this bright line rule may be more inclusive, it is unclear how many veterans, previously eligible for the program, fall below the 70% threshold, but need a caregiver to help with Activities of Daily Living (ADLs) or Instrumental Activities of Daily Living (IADLs) that were related to their time in service. 

In addition to eligibility changes, the VA changed their stipend categories and amounts. Previously, the VA calculated the stipend by looking at how much home health aides were being paid in the veteran’s geographical area. The VA had a three tiered system, where the VA would review and score the level of need for each ADL and IADL to determine the level of care that the veteran needs. This holistic approach, although well intentioned, was subjective and inconsistent across VA facilities.

Because of these inconsistencies, the VA moved to a new stipend calculation and two-tiered system. Under the new regulations, the VA utilizes the GS 4, step 1 scale with locality pay for caregiver stipends. The stipend amounts can be either 60% or 100% of this pay scale, depending on the level of care provided to the veteran. In order to qualify for the 100% rate, the veteran must be unable to sustain in the community. The VA defines this as either requiring personal care each time they complete three or more ADLs and be fully dependent on the caregiver to complete these ADLs or the veteran is in need of supervision, protection, or instruction on a continuous basis.

Unsurprisingly, a veteran has already petitioned the Federal Circuit to review the regulation change under 38 U.S.C. §502. In addition to other issues, the Petitioner raises a concern about the stipend amount compared to home health aides. The Petitioner contends that the government pay scales is less than a home health aide and is contrary to the statutory language. To see more about their lawsuit, please see NVLSP’s petition to the Federal Circuit. 

As we wait for the Federal Circuit to review the Caregiver regulations, it is important to note that the VHA has sole jurisdiction in determining Caregiver eligibility and stipend allotment. However, there is a pending lawsuit at the Court of Appeals for Veterans Claims for class certification in Beaudette (20-4961), focusing on whether the Board of Veterans’ Appeals has jurisdiction over Caregiver denials.

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