[Federal Register Volume 85, Number 109 (Friday, June 5, 2020)]
[Rules and Regulations]
[Pages 34522-34524]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12359]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 71

RIN 2900-AQ96


Home Visits in Program of Comprehensive Assistance for Family 
Caregivers During COVID-19 National Emergency

AGENCY: Department of Veterans Affairs

ACTION: Interim final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is revising its 
regulations that govern VA's Program of Comprehensive Assistance for 
Family Caregivers (PCAFC) to relax the requirement for in-person home 
visits during the National Emergency related to Coronavirus Disease-
2019 (COVID-19). This change is required to ensure the safety and well-
being of veterans, caregivers, and VA clinical staff.

DATES: 
    Effective Date: This rule is effective on June 5, 2020.
    Comment Date: Comments must be received on or before July 6, 2020.

ADDRESSES: Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to the Director, Office 
of Regulation Policy and Management (00REG), Department of Veterans 
Affairs, 810 Vermont Avenue NW, Room 1064, Washington, DC 20420; or by 
fax to (202) 273-9026. Comments should indicate that they are submitted 
in response to ``RIN 2900-AQ96, Home Visits in Program of Comprehensive 
Assistance for Family Caregivers During COVID-19 National Emergency.'' 
Copies of comments received will be available for public inspection in 
the Office of Regulation Policy and Management, Room 1064, between the 
hours of 8:00 a.m. and 4:30 p.m. Monday through Friday (except 
holidays). Please call (202) 461-4902 for an appointment. (This is not 
a toll-free number.) In

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addition, during the comment period, comments may be viewed online 
through the Federal Docket Management System at http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Elyse Kaplan, National Deputy 
Director, Caregiver Support Program, Care Management and Social Work, 
10P4C, Veterans Health Administration, Department of Veterans Affairs, 
810 Vermont Ave. NW, Washington, DC 20420, (202) 461-7337. (This is not 
a toll-free number.)

SUPPLEMENTARY INFORMATION: Title I of Public Law 111-163, Caregivers 
and Veterans Omnibus Health Services Act of 2010 (hereinafter referred 
to as ``the Caregivers Act''), established section 1720G(a) of title 38 
of the United States Code (U.S.C.), which required VA to establish a 
Program of Comprehensive Assistance for Family Caregivers (PCAFC) for 
eligible veterans who have a serious injury incurred or aggravated in 
the line of duty on or after September 11, 2001. The Caregivers Act 
also required VA to establish a Program of General Caregiver Support 
Services (PGCSS), pursuant to 38 U.S.C. 1720G(b), which is available to 
caregivers of covered veterans of all eras of military service. VA 
implemented PCAFC and PGCSS through its regulations in part 71 of title 
38 of the Code of Federal Regulations (CFR). Through PCAFC, VA provides 
Family Caregivers of eligible veterans (as those terms are defined in 
38 CFR 71.15) certain benefits, such as training, respite care, 
counseling, technical support, beneficiary travel (to attend required 
caregiver training and for an eligible veteran's medical appointments), 
a monthly stipend payment, and access to health care (if qualified) 
through the Civilian Health and Medical Program of the Department of 
Veterans Affairs (CHAMPVA). 38 U.S.C. 1720G(a)(3), 38 CFR 71.40. This 
interim final rule relates to PCAFC.
    VA is adding a new Sec.  71.60 to title 38, CFR, to provide 
flexibility in the mode by which VA conducts PCAFC home visits for the 
duration of the National Emergency related to COVID-19 declared by the 
President on March 13, 2020 (the COVID-19 National Emergency). COVID-19 
is a new disease that causes respiratory illness in people and can 
spread from person to person. Many individuals and communities across 
the country have taken steps to reduce the spread of COVID-19, 
including isolating individuals diagnosed with the disease and 
implementing physical distancing measures. The priority goal in the VA 
response to COVID-19 is the protection of veterans, their caregivers, 
and VA staff. To reduce the risk of exposure to and transmission of 
COVID-19 to individuals involved in PCAFC, as well as members of their 
households and others with whom they come into contact who may be 
affected, VA is relaxing PCAFC home visit requirements as set forth in 
this interim final rule. This is especially important given the 
vulnerable population of veterans served by PCAFC. Pursuant to Sec.  
71.60, VA will have flexibility to conduct home visits through means 
other than in-person visits, including videoconference or other 
available telehealth modalities. Section 71.60 will only apply to home 
visits under part 71 and will not apply to other parts of title 38, 
CFR.
    This interim final rule has an immediate impact on the mode by 
which VA completes the initial home-care assessments required by 38 CFR 
71.25(e). Section 71.25(e) sets forth the requirement for an initial 
home-care assessment prior to approval and designation of a Family 
Caregiver under PCAFC. Section 71.25(e) currently requires ``a VA 
clinician or a clinical team [to] visit the eligible veteran's home to 
assess the caregiver's completion of training and competence to provide 
personal care services at the eligible veteran's home, and to measure 
the eligible veteran's well being.'' Pursuant to Sec.  71.60, a VA 
clinician or clinical team is no longer required to conduct an in-
person visit in the eligible veteran's home to satisfy this requirement 
for the duration the COVID-19 National Emergency.
    Section 71.60 may also impact the home visit requirements proposed 
by VA on March 6, 2020 in RIN 2900-AQ48, Program of Comprehensive 
Assistance for Family Caregivers Improvements and Amendments Under the 
VA MISSION Act of 2018. 85 FR 13356. The proposed rule references a 
home visit in proposed Sec.  71.25(e) with respect to the initial home-
care assessment, specifies that reassessments under proposed Sec.  
71.30 may include a visit to the eligible veteran's home, and proposes 
to require an annual home visit in proposed Sec.  71.40(b)(2) for 
purposes of wellness contacts. For the duration of the COVID-19 
National Emergency, Sec.  71.60 will authorize VA to complete these 
home visits through means other than an in-person visit to the eligible 
veteran's home, such as videoconference or other available telehealth 
modalities.

Administrative Procedure Act

    The Secretary of Veterans Affairs finds that there is good cause 
under the provisions of 5 U.S.C. 553(b)(B), to publish this interim 
final rule without prior notice and the opportunity for public comment, 
and under 5 U.S.C. 553(d), to dispense with the delayed effective date 
ordinarily prescribed by the Administrative Procedure Act (APA).
    Pursuant to section 553(b)(B) of the APA, general notice and the 
opportunity for public comment are not required with respect to a 
rulemaking when an ``agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefor in the rules issued) 
that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' The Secretary finds 
that it is contrary to the public interest to delay issuance of this 
rule for the purpose of soliciting prior public comment because there 
is an immediate and pressing public health risk for veterans, 
caregivers, and clinical staff involved in PCAFC home visits, as well 
as members of their households and others with whom they come into 
contact who may be affected. Mandating an in-person visit to an 
eligible veteran's home through PCAFC could increase the risk of 
exposure to and transmission of COVID-19, and it is critical that VA 
have immediate flexibility to conduct home visits through other means. 
For these reasons, the Secretary has concluded that ordinary notice and 
comment procedures would be impracticable and contrary to the public 
interest and is accordingly issuing this rule as an interim final rule. 
The Secretary will consider and address comments that are received 
within 30 days after the date that this interim final rule is published 
in the Federal Register and address them in a subsequent Federal 
Register document announcing a final rule incorporating any changes 
made in response to the public comments.
    The APA also requires a 30-day delayed effective date, except for 
``(1) a substantive rule which grants or recognizes an exemption or 
relieves a restriction; (2) interpretative rules and statements of 
policy; or (3) as otherwise provided by the agency for good cause found 
and published with the rule.'' 5 U.S.C. 553(d). For the reasons stated 
above, the Secretary finds that there is also good cause for this 
interim rule to be effective immediately upon publication. It is in the 
public interest for VA to have flexibility to utilize alternative 
modalities to conduct required home visits during the COVID-19 National 
Emergency, and this will be facilitated by an immediate effective date. 
Additionally, this rule relieves a

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restriction by expanding the modes by which the home visits can be 
completed. Instead of requiring such visits to be completed through in-
person visits to the eligible veteran's home, for the duration of the 
COVID-19 National Emergency, PCAFC home visits can be completed through 
other means, including videoconference or other available telehealth 
modalities. By relieving a restriction and because any delay in 
implementation of Sec.  71.60 would be contrary to the public interest 
under 5 U.S.C. 553(d)(1) and (3), respectively, this interim final rule 
is exempt from the APA's delayed effective date requirement.

Paperwork Reduction Act

    This interim final rule contains no provisions constituting a 
collection of information under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this interim final rule will 
not have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act (5 
U.S.C. 601-612). This interim final rule provides flexibility in the 
modes by which VA conducts PCAFC home visits for the duration of the 
National Emergency related to COVID-19 and does not affect small 
businesses. Therefore, pursuant to 5 U.S.C. 605(b), the initial and 
final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 
604 do not apply.

Executive Orders 12866, 13563 and 13771

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
The Office of Information and Regulatory Affairs has determined that 
this rule is not a significant regulatory action under Executive Order 
12866.
    VA's impact analysis can be found as a supporting document at 
http://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of the 
rulemaking and its impact analysis are available on VA's website at 
http://www.va.gov/orpm/, by following the link for ``VA Regulations 
Published From FY 2004 Through Fiscal Year to Date.''
    This interim final rule is considered an E.O. 13771 deregulatory 
action. Details on the estimated cost savings of this interim final 
rule can be found in the rule's economic analysis.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This interim final rule will have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.009, Veterans Medical 
Care Benefits.

List of Subjects in 38 CFR Part 71

    Administrative practice and procedure, Caregivers program, Claims, 
Health care, Health facilities, Health professions, Mental health 
programs, Travel and transportation expenses, Veterans.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Brooks D. 
Tucker, Acting Chief of Staff, Department of Veterans Affairs, approved 
this document on June 3, 2020, for publication.

Consuela Benjamin,
Regulation Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 71 as follows:

PART 71--CAREGIVERS BENEFITS AND CERTAIN MEDICAL BENEFITS OFFERED 
TO FAMILY MEMBERS OF VETERANS

0
1. The authority citation for part 71 continues to read as follows:

    Authority: 38 U.S.C. 501, 1720G, unless otherwise noted.


0
2. Add Sec.  71.60 to read as follows:


Sec.  71.60  Home Visits During COVID-19 National Emergency.

    Notwithstanding the requirements in this part, for the duration of 
the National Emergency related to COVID-19 declared by the President on 
March 13, 2020, VA may complete visits to the eligible veteran's home 
under this part through videoconference or other available telehealth 
modalities.

[FR Doc. 2020-12359 Filed 6-4-20; 8:45 am]
 BILLING CODE 8320-01-P