Extension of Program of Comprehensive Assistance for Family Caregivers Eligibility for Legacy Participants and Legacy Applicants

<RULE> DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Part 71</CFR> <DEPDOC>[Docket No. VA-2021-VHA-0018]</DEPDOC> <RIN>RIN 2900-AR28</RIN> <SUBJECT>Extension of Program of Comprehensive Assistance for Family Caregivers Eligibility for Legacy Participants and Legacy Applicants</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Veterans Affairs (VA) adopts as final, with changes, an interim final rule that amended VA's regulations governing the Program of Comprehensive Assistance for Family Caregivers (PCAFC) and extended the transition period for legacy participants, legacy applicants, and their Family Caregivers (the legacy cohort) through September 30, 2025. This final rule will further extend the transition period for the legacy cohort through September 30, 2028. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective September 30, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Colleen Richardson, Executive Director, Caregiver Support Program, Veterans Health Administration, (202) 461-7337. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Executive Summary</HD> This final rule provides an additional three-year extension for the transition period for the legacy cohort, that is through September 30, 2028, and responds to comments received on two prior interim final rules that were previously published related to the transition period for the legacy cohort. VA is making this change to ensure continued eligibility for individuals who were deemed eligible for PCAFC under prior criteria while VA continues to consider regulatory changes, including with respect to the eligibility criteria that became effective on October 1, 2020, as discussed in a December 6, 2024, proposed rule. 89 <E T="04">Federal Register</E> (FR) 97404. As VA explained in 2020 when establishing the transition period for the legacy cohort, individuals within the legacy cohort may have been participating in PCAFC for many years and, through no fault of their own, have come to rely upon the stipend and other PCAFC benefits. See 85 FR 46226, at 46253 (July 31, 2020). VA believes it would be unjust for the transition period for the legacy cohort to conclude while VA is still working to identify and begin implementing changes related to PCAFC, including the eligibility criteria. <HD SOURCE="HD1">Background</HD> As originally codified in 2010, section 1720G of title 38, United States Code (U.S.C.), required VA to establish 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. Section 101 of the Caregivers and Veterans Omnibus Health Services Act of 2010, Public Law (Pub. L.) 111-163, 124 Stat. 1130 (2010). VA implemented PCAFC through its regulations in part 71 of title 38, Code of Federal Regulations (CFR). In 2018, section 1720G was amended by expanding PCAFC to Family Caregivers of eligible veterans who have a serious injury incurred or aggravated in the line of duty before September 11, 2001, establishing new benefits for designated Primary Family Caregivers of eligible veterans, and making other changes affecting program eligibility and VA's evaluation of PCAFC applications. 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 115-182, 132 Stat. 1393 (2018). Subsequently, through regulations, VA amended the PCAFC eligibility criteria, identified a legacy cohort ( <E T="03">i.e.,</E> legacy applicants, legacy participants, and their Family Caregivers, as those terms are defined in 38 CFR 71.15) who were approved for PCAFC under the previous eligibility criteria, and created a one-year transition period through September 30, 2021, whereby the legacy cohort would continue to remain eligible for PCAFC and continue to receive benefits in accordance with 38 CFR 71.40 while they were reassessed under the new eligibility criteria. 85 FR 46226. <HD SOURCE="HD1">First and Second PCAFC Extension for Legacy Cohort</HD> On September 22, 2021, VA published an interim final rule (First PCAFC Extension for Legacy Cohort) that extended the one-year transition period for the legacy cohort for one additional year through September 30, 2022. 86 FR 52614. VA continued to reassess the legacy cohort during this time. However, on March 25, 2022, the U.S. Court of Appeals for the Federal Circuit issued a decision that set aside certain PCAFC criteria established in the July 31, 2020, rulemaking, resulting in the need for VA to repeat certain reassessments of the legacy cohort to account for the Court's interpretation. <E T="03">Veteran Warriors, Inc.</E> v. <E T="03">Sec'y of Veterans Affairs,</E> 29 F.4th 1320 (Fed. Cir. 2022) ( <E T="03">Veteran Warriors</E> ). In light of the <E T="03">Veteran Warriors</E> decision, VA published a second interim final rule (Second PCAFC Extension for Legacy Cohort) on September 21, 2022, that extended the transition period and timeline for VA to complete reassessments of the legacy cohort by three additional years through September 30, 2025. 87 FR 57602. VA provided a 60-day comment period for the First PCAFC Extension for Legacy Cohort, which ended on November 22, 2021. Four comments were received. VA provided a 60-day comment period for the Second PCAFC Extension for Legacy Cohort, which ended on November 21, 2022. Eleven comments were received. In this rulemaking, VA responds to comments received on the First and Second PCAFC Extension for Legacy Cohort and further extends the transition period by an additional three-year period, that is through September 30, 2028. VA notes that on December 6, 2024, VA published a proposed rule (New Amendments to PCAFC) that, among other changes, proposed to further amend the eligibility criteria for PCAFC and proposed to further extend the transition period for the legacy cohort and the timeline for conducting necessary reassessments for members of the legacy cohort to ensure they could be reassessed under the proposed new eligibility criteria, once finalized. 89 FR 97404. VA received 842 comments on the New Amendments to PCAFC proposed rule, a significant number of which related to the proposed extension of the transition period for the legacy cohort. However, because those comments are specific to the New Amendments to PCAFC proposed rule, they will not be addressed in this final rule. <HD SOURCE="HD1">Response to Comments</HD> As discussed, the First and Second PCAFC Extension for Legacy Cohort extended the transition period during which the legacy cohort could be reassessed for continued eligibility for PCAFC. While the Second PCAFC Extension for Legacy Cohort also made non-substantive technical amendments to the regulations, neither the First nor Second PCAFC Extension for Legacy Cohort interim final rules included substantive regulatory changes other than extending the transition period for the legacy cohort. Public comments addressing other issues, such as the eligibility criteria in the July 31, 2020, rulemaking and substantive changes to eligibility criteria based on <E T="03">Veteran Warriors</E> are outside the scope of the First and Second PCAFC Extension for Legacy Cohort. The only comments within the scope of this rulemaking are those that specifically addressed whether and for how long the transition period for the legacy cohort should be extended. Many of the comments received pursuant to the First and Second PCAFC Extension for Legacy Cohort raised broader issues related to PCAFC and are therefore outside the scope of this rulemaking. These comments raised concerns with the July 31, 2020, rulemaking, such as a belief that the final rule added additional restrictions to eligibility and that the changes negatively impacted the legacy cohort. Other comments raised concerns related to perceived inequity between pre- and post-9/11 veterans; stipend levels and rate calculations; the application form for PCAFC (VA Form 10-10CG); the effect of <E T="03">Veteran Warriors</E> and the need to issue new regulations; the appeals process for PCAFC decisions; and the need for a formalized period for the pause on discharges and reductions for PCAFC participants who are not in the legacy cohort. Additional commenters shared their personal experiences with PCAFC and other expressed concerns with VA health care generally. As these comments were outside the scope of this rulemaking, in this final rule, VA makes no changes based on these comments and does not respond to the broader issues raised by these commenters. VA received two comments pursuant to and within the scope of the First PCAFC Extension for Legacy Cohort that supported extending the transition period. One comment advocated for VA to prioritize new PCAFC applicants and stated that members of the legacy cohort should continue to stay in the program unless their caregiver support coordinator feels they are no longer qualified under the revised criteria or they decide to stop participating. Another comment supported the extension to provide additional time for VA to complete reassessments of the legacy cohort and indicated that “[s]etting a single, specific date when all the reassessments become effective is . . . fair and appropriate and gives veterans and their caregivers time to prepare for any changes in their status and/or stipend.” VA takes note of the commenters' desire for continued eligibility for the legacy cohort and their support for extending the transition period. VA believes that these commenters' reasons for supporting a one-year e ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 23k characters. 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