VA Issues Proposed Rules Regarding the Caregiver Program -- Comments due Feb. 4, 2025 (by Jennifer R. Morrell, Delaware Law School)

VA issued proposed rule changes regarding its Program of Comprehensive Assistance for Family Caregivers (“caregiver program”). Comments are due February 4, 2025.

VA has proposed some potentially impactful changes to its caregiver program. The most substantial proposed change pertains to the eligibility criteria. Currently, for a veteran to qualify for the program, they must need help with one activity of daily living (ADL) each and every time they undertake the ADL. VA, fortunately, acknowledges that such a requirement is too restrictive and not in line with the goals of the program, which is to provide benefits to veterans with both moderate and severe disability. As such, VA proposes to replace the “each and every time” standard with a “typically requires” standard, which would enable eligibility for those veterans who attempt an ADL for which they require assistance most of the time.  Whether a veteran typically requires assistance with an ADL will be a clinical determination, but it means the assistance is “generally necessary,” and falls somewhere between “often” and “each and every time.” VA seeks input on this proposed change and also invites suggestions for alternative terminology that would best articulate the new standard.

Under the current eligibility criteria, a mere 29% of caregiver applications are approved. Presumably, these changes, if implemented, would lead to an increased approval rate. An increased approval rate, in turn, could result in greater claims processing efficiency, since more veterans who meet the requisite standard are likely to be granted on their first attempt, eliminating unnecessary appeals.  

Another significant and welcome proposed change pertains to the frequency of reassessments. Instead of annually, VA proposes reassessing veterans no more than every two years, with limited exceptions. VA’s reasoning is that minimal change in severity is likely within a 12-month period, given that the program covers those with moderate and severe disability.

VA proposes replacing the definition “inability to perform an ADL” with, simply, a standalone definition for ADL, which would continue to include the current list of common ADLs, such as bathing and toileting.

The proposed rules expand eligibility to veterans residing in assisted living facilities and their caregivers. VA recognizes that veterans in assisted living facilities sometimes continue to receive assistance with ADLs from family caregivers rather than facility staff. Notably, VA will consider caregivers who are living in the same facility, assuming they meet all other requirements.

VA proposes expanding its definition of “serious injury”--one of the basic eligibility criteria for caregiver benefits--to include veterans receiving individual unemployability benefits, which can be granted for disabilities rated 60% or less. Currently, serious injury only includes disabilities rated 70% (either alone or in combination with other conditions).

Some proposed changes implement a decision from the U.S. Court of Appeals for the Federal Circuit, Veteran Warriors, Inc. v. Sec’y of Veterans Affairs, 29 F.4th 1320 (Fed. Cir. 2022). For example, VA proposes to remove its references to “supervision, protection, and instruction,” which combine two of the statutory bases upon which a veteran can be determined to need personal care services (“a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury” and “a need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired”). Instead of combining these bases, VA would keep them separate, aligning with the statutory text found at 38 U.S.C. § 1720G (a)(2)(C)(ii) and (iii).

With regard to the need for “instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired,” VA proposes interpreting that statutory text as requiring the inability to perform at least one ADL. Regular supervision or instruction, VA proposes, means assistance is needed for only part of the ADL. Extensive supervision, on the other hand, means assistance is needed throughout the performance of the ADL. This distinction would affect stipend level, with extensive assistance warranting the higher level of benefits.

With regard to the need for supervision or protection based on symptoms of neurological or other impairment, VA proposes adding a qualifier that the veteran has a “frequent need” for this type of care. The statute does not contain this qualifier, but VA says they're aligning with how they’ve been applying the law since the Veteran Warriors decision was issued. Without proper guidance, however, this qualifier seems liable to cause significant confusion and inconsistency.

In the proposed changes, VA outlines four bases for the higher stipend amount, an increase from the current three bases.

Finally, VA proposes no change to the current appeal process for caregiver claims and proposes extending the time period for reassessments for legacy participants to 18 months after the effective date of this rulemaking.

For the full proposed rule, see here. Comments are due Feb. 4, 2025.