Submission For The Record of Wounded Warrior Project
Chairman Buerkle, Ranking Member Michaud, and Members of the Subcommittee,
Wounded Warrior Project (WWP) applauds this Committee’s ongoing oversight of the Department of Veterans Affairs’ (VA) implementation of the comprehensive caregiver assistance program. This Committee’s vigilance and leadership have been critical to the important progress made in moving the program from what was, initially, a flawed implementation plan to a reality that is already making a difference in the lives of families who have endured so much.
We trust this hearing will underscore that – even as VA has made significant improvement to the implementation plan and great strides in rolling out the program – more work must be done, particularly in refining the Interim Final Regulation (IFR) published on May 5, 2011. VA’s adoption of WWP recommendations, submitted as comments on that regulation, would help bridge remaining gaps between the law’s promise and regulatory-barriers many families still face.
In our view, the following comments offer the Department a road map for achieving in full the goal Congress set in enacting a historic caregiver-assistance law. WWP is pleased to provide this Committee with these comments as part of our statement for the record:
- Eligibility issues:
- Under the IFR, warriors with certain serious mental health conditions would likely be deemed “ineligible” for caregiver-assistance. Accordingly, new Section 71.15, which identifies reasons that might create a need for supervision or protection, should be expanded to include pertinent symptoms of PTSD, anxiety and depression.
The caregiver law provides that an eligible veteran is one who has a serious injury, and it specifies that that term includes “psychological trauma, or other mental disorder.” The IFR identifies possible bases for establishing a need for caregiver assistance. Among those is that a wounded warrior requires supervision and protection based on symptoms or residuals of neurological or other impairment or injury. The IFR identifies seven different circumstances that might require supervision or protection, but the Department specifically welcomes additional suggestions on these circumstances. WWP agrees that additional criteria are needed. The seven factors identified in the IFR do address very relevant considerations. Nevertheless, we do not believe the factors are sufficiently comprehensive, particularly with respect to widely prevalent mental health conditions that in some circumstances dictate a need for caregiving assistance.
For example, in the case of a veteran with PTSD, “need for supervision or protection” could conceivably be established under the IFR based on its inclusion of such symptoms as difficulty with sleep regulation and inability to moderate agitation. However, a veteran with PTSD marked by other severe symptoms (such as significant avoidant behaviors) may need a caregiver’s supervision and protection, but would likely not qualify under these IFR criteria. In addition, a veteran with significant anxiety and related fearfulness (such as fear of leaving the home) could also require some degree of caregiver assistance. As currently drafted, there is no single criterion or group of criteria under Section 71.15 related to supervision or protection that would address such anxiety symptoms. Similarly, it is not clear that symptoms of depression are necessarily covered under that Section. (The reference to “self regulation” is at best ambiguous because it is described in terms that suggest it applies only to being able to regulate an agitated or aggressive state. And while very severe depression could involve suicidality and thus be covered under the “safety risk” criterion, an individual with depression may pose no safety risk and still need considerable assistance.) PTSD, anxiety and depression are not only widely prevalent among OEF/OIF veterans, but can certainly dictate a need for caregiving assistance in the nature of supervision and protection. Given that PTSD and other mental disorders are signature wounds of this war, and specifically included in the statute, it would be unreasonable to fail to take account of common, severe symptoms of those conditions. Accordingly, the criteria in Section 71.15 should be revised and expanded.
WWP recognizes that the IFR establishes a criterion under which a need for caregiving can be based on a mental disorder that has been scored under a Global Assessment Functioning (GAF) test at 30 or less continuously during a 90-day period. A GAF score of 21-30 is defined as “behavior is considerably influenced by delusions or hallucinations OR serious impairment, in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends).”5 Requiring a GAF score of 30 or less sets an unreasonably restrictive eligibility bar, particularly given the observations set forth above regarding situations in which individuals with PTSD, anxiety and depression likely would not be deemed to need caregiver assistance under the Section 71.15 criteria on supervision or protection.
In setting a GAF “line” that is too restrictive and omitting pertinent behavioral health criteria in Section 71.15 relating to supervision or protection, the IFR will fail to cover veterans who should be deemed eligible based on a real need for caregiver assistance. As such, the IFR creates what amounts to serious disparity. Consider that the IFR, on the one hand, implicitly recognizes that a veteran with a physical injury may be “eligible” based on a relatively limited need for assistance with activities of daily living. (For example, a veteran may need relatively limited assistance daily based on an inability to dress himself; yet the IFR would appropriately provide for caregiver-support to the veteran’s caregiver. Similarly, a veteran who experienced moderate traumatic brain injury, manifested only in limited difficulty with planning and organization, might need only limited assistance such as with maintaining a medication regimen, but caregiver support could again be authorized under the IFR.) But a veteran with anxiety, for example, would have to be almost totally disabled under the GAF-criterion -- and likely need full-time assistance -- to be deemed eligible. This surely unintended disparity between IFR eligibility standards applicable to a physical injury and those applicable to a common mental health condition is fundamentally inconsistent with a law that clearly recognized that both mental disorders and physical injuries can render veterans in need of caregiver assistance. It is also inconsistent with the principle of “mental health parity” which is firmly embedded in federal law. Such disparity should be excised from the regulation.
- The “GAF eligibility provision” is not only unduly restrictive, it is an arbitrary standard that, contrary to law, has become the exclusive criterion under the IFR for determining eligibility in the case of a mental health condition.
As discussed above, the “GAF eligibility provision” is unduly restrictive. Implicitly, the Department’s position is that the only circumstances under which a mental health condition would require another’s assistance is where mental impairment is so profound as to manifest in (1) delusions or hallucinations; (2) suicidal preoccupation; (3) gross inappropriateness; or (4) bedridden status. Given how disabling mental illness can be, such a view fails to account for the fact that individuals with less severe symptoms may also need another’s daily assistance, albeit not necessarily round-the-clock or full time care. In attempting to explain this provision, the Department states that a “GAF scores in the 21‑30 range is the minimum impairment standard that VA will require to consider a mental health diagnosis a serious injury.” It states further that:
“At this assessed level of impairment, the supervision or protection of a caregiver is essential to the individual. An individual who has been assessed as having a psychological trauma or mental disorder scored at 30 GAF or less generally requires a higher level of care that would provide constant supervision.” 
The underscored language above surely makes the point. Nothing in the law suggests that a need for caregiver-assistance must be constant. To the contrary, Congress made it clear that the extent of personal care services needed by eligible veterans would vary substantially and directed the Secretary to provide Primary Caregivers a stipend that “shall be determined . . . based upon the amount and degree of personal care services provided.” The IFR provisions addressing the stipend clearly provide that a Primary Caregiver of a veteran who is determined to need as little as ten hours of caregiver assistance weekly would still be entitled to receive comprehensive caregiver supports. Setting a GAF score at a level that requires “constant supervision of the veteran” is contrary to the law that directs the Secretary to provide caregivers support tied to the duration of needed caregiving. In short, this standard is contrary to law.
Beyond the question whether it is lawful to set a GAF-score “bar” at 21‑30 rather than a higher level, the IFR raises the more basic question: what is the foundation for establishing any GAF score criterion? The VA states that the GAF-eligibility provision, Section 71.20(c)(3), is authorized by 38 U.S.C. § 1720G(a)(2)(C)(iii), under which the Secretary may establish additional circumstances that create a need of personal care services other than the specific criteria identified in the law. In WWP’s view, relying on a tool used to subjectively rate social, occupational, and psychological functioning is an extraordinarily poor proxy for assessing a need for caregiver assistance. However, the GAF provision is not simply a too-restrictive, arbitrary standard. Given that the VA has established with the GAF provision a separate eligibility criterion applicable only to “psychological trauma or a mental disorder,” Section 71.20(c)(3) provides the exclusive eligibility criterion for a veteran needing personal care services because of a mental health condition. As such, Section 71.20(c)(3) has not only established a much higher eligibility threshold for a mental health condition than for any other disorder, it effectively renders meaningless the law’s “need for supervision or protection” language in the case of a veteran with PTSD or other mental health condition. Instead, the regulation sets a very specific test applicable to veterans with a mental disorder, such that – even if that veteran’s condition is so severe that it creates a need for supervision or protection – one must assume that the veteran would be deemed not to meet the IFR’s eligibility requirements.
The VA’s explanation of this provision belies the notion that GAF-criterion is simply “an alternative” avenue of eligibility. As the VA clearly explains “GAF scores in the 21-30 range is the minimum impairment standard that VA will require to consider a mental health diagnosis a serious injury.” The VA has established a double standard here. In interpreting the statutory language “an eligible veteran is any individual who . . . has a serious injury (including traumatic brain injury, psychological trauma, or other mental disorder),” the VA explains that a mental health condition is not “serious” unless it results in functional impairment that requires “constant supervision.” Yet for ANY other injury, including traumatic brain injury (which may manifest itself exclusively in behavioral manifestations little different from certain mental health conditions), the IFR defines “serious injury” differently: “any injury … that renders the veteran or servicemember in need of personal care services.” Under this definition, a veteran suffering from traumatic brain injury could receive as little as ten hours per week of caregiver assistance. Setting disparate standards based solely on diagnosis for determining whether an individual is in need of supervision or protection because impaired behavioral-health functioning cannot be squared with a law that draws no distinction among types of injury, and provides a specific, clearly-applicable criterion in law for determining need for personal care services. WWP submits that including Section 71.20(c)(3) in a final regulation would be contrary to law, and strongly urges that it be deleted in its entirety.
- Contrary to law, the IFR draws so tight a link between injury and need for personal care services that veterans whose injuries (only) “lead to” the need for caregiver support will be rendered ineligible.
The VA explains that it interprets the caregiver law to require “a causal relationship” between a veteran’s serious injury and a need for personal care services. While WWP does not suggest that the VA’s interpretation of the statute is unreasonable in principle, the IFR draws too fine a line – particularly in the absence of specific statutory language requiring any causal connection -- in defining serious injury to mean an injury that “renders” the individual in need of personal care services.
To say, in effect, that the injury must have caused the need for caregiver-assistance is at best to create ambiguity, and potentially to render ineligible a veteran under circumstances where a condition secondary to his or her injury causes the need for personal care services. Consider the case of a veteran who sustained multiple shell fragment wounds in Iraq. While those injuries were not severely disabling and did not create a need for sustained caregiver assistance, the veteran after separation from service underwent further surgery for removal of shell fragments, and as a result of a mishap in surgery suffered loss of oxygen and now requires extensive personal care services. One can also readily imagine the instance of a warrior who lost a leg in Afghanistan, and subsequently (after separation from service) sustains a severe traumatic brain injury in a bad fall due to loss of balance.
To focus narrowly and exclusively on whether the initial injury “renders” the veteran in need of personal care services is to misread both the language and the purpose of the caregiver law. If it is to conform to law, the final regulation must clarify that a secondary condition resulting from that initial injury can provide an equally sound basis for establishing a causal link to the need for caregiver-assistance. WWP urges that the final rule make clear that eligibility extends to any serious condition that is “related to, caused by, or derived from” an injury incurred or aggravated during service.
- The IFR fails to articulate clearly the manner in which “clinical eligibility” will be determined and does not ensure that the caregiver’s perspective is taken into account.
As drafted, the IFR is singularly vague regarding how the VA is to arrive at a judgment that a particular wounded veteran requires caregiver-assistance. The VA should remedy this ambiguity.
The IFR states that “need of personal care services [will be] … based on … [specified] clinical criteria.” It provides that “upon receiving [the required application for caregiver assistance] VA will perform the clinical evaluations required by this section.” The IFR further states that “VA will clinically rate the eligible veteran’s need for supervision or protection . . . using the seven impairments listed in … sec. 71.15.” New Section 71.25(f)—relating to approval and designation of primary and secondary family caregivers is the only provision of the regulation that speaks to the process by which at least certain clinical judgments are to be made. The provision is vague, at best:
If the eligible veteran and at least one applicant meet the requirements of this part, VA will approve the application and designate Primary and/or Secondary Family Caregivers, as appropriate. This approval and designation will be a clinical determination authorized by the eligible veteran’s primary care team.
One infers that this language means that the primary care team (as opposed to a single non-physician, for example) is to perform the clinical evaluation. An interdisciplinary evaluation is critically important, but the IFR is certainly not clear on that point.
WWP recently conducted a survey of caregivers to understand the experience of families who had applied for comprehensive-assistance under the caregiver law during the seven-week period following the initial-application date. Among the findings, the survey responses suggest that there is variability from facility to facility as to who determines a veteran’s need for caregiver assistance, as well as an apparent failure to communicate to caregivers how that determination is made. Asked their understanding of who determines a veteran’s need for caregiver-assistance, more than one in five respondents expressed the understanding that it was the primary care physician; one in four responded that it was the clinical team; while more than four in ten expressed uncertainty. Clarifying who makes the determination that a veteran needs caregiver-assistance is only a first step, however. The regulation states that VA is to “clinically rate” the veteran, but does not define that term or specify how such clinical rating is to be conducted. In considering the determinations that must be made regarding whether, and the extent to which, impairments result in a need for supervision or protection, clinical judgment must take account of how the veteran functions in his or her home and community, not simply how the veteran appears in a medical facility’s examination room. Such judgment cannot, for example, be reliably based on prior VA medical records, and must necessarily rely heavily on interviewing the caregiver and the veteran. But as one caregiver’s experience (reported to WWP through our recent survey) indicates, the VA’s lack of guidance on the importance of obtaining a full understanding of the veteran’s limitations and needs (to include obtaining the caregiver’s perspective) can result in an inaccurate assessment:
“My husband was interviewed by his VA physician, but I was not allowed to go in and assist him and help him remember things and help give an accurate picture of his functioning and health. His physician had only seen him a couple of times, we were told this was the reason he was going in for an interview/assessment. The assessment was supposed to provide the understanding of my warrior's needs. Since I was not there, and my warrior does not recall the entire interview, I do not know if the doctor really got a good understanding of the situation.”
WWP urges that the regulation make clear that the various clinical determinations implicit in the IFR are to be made by an interdisciplinary clinical team, and that the team must interview both the caregiver and veteran to gain an understanding of the extent and nature of the veteran’s need for personal care services. In those instances in which a need for caregiving is based on a need for supervision and protection, VA should require use of the Neuropsychiatric Inventory (NPI) (or similar tool). The NPI, which VA cited as a source for its scoring methodology, would be an apt tool for interviewing a caregiver because it is structured to gain information on the frequency and severity of impairment across ten behavioral areas, as well as to assess caregiver distress. (Insight on the degree of caregiver distress would also be a useful tool in determining caregiver’s need for education and training, supportive services, and respite care.)
WWP recommends that the term “clinical rating” be defined to address the above described concerns, to include identifying who makes such determinations, the manner in which such determinations are made (that is, that they are not to be based on inferences drawn from prior medical or compensation records, must take account of extensive interview with the caregiver, etc.), and the nature of the examinations and home assessments that must be conducted.
The final regulation should clarify that a veteran with any service-connected condition incurred or aggravated on or after 9/11 may be an “eligible veteran” under the caregiver law.
The IFR essentially restates the statutory language in providing an eligible veteran is “an individual [who] . . . has a serious injury, including traumatic brain injury, psychological trauma, or other mental disorder[.]” That phrasing leaves an important issue unresolved. The final rule should clarify that caregivers of veterans who incurred a serious illness or disease in service on or after 9/11 will not be excluded from the comprehensive assistance program.
While the statute does not define the term “serious injury”, the statutory language is instructive. Its key provision is “serious injury (including traumatic brain injury, psychological trauma, or other mental disorder).” The dictionary definition of “injury” encompasses any kind of suffering, which would include diseases. See Webster's third new international dictionary 1164 (3d ed. 1976) (defining “injury” to mean “hurt, damage, or loss sustained.”); random house unabridged dictionary 983 (2d ed. 1993) (defining “injury” as “a particular form or instance of harm.”); Merriam Webster collegiate dictionary (10th ed. 1996) (defining “injury” as “hurt, damage, or loss sustained.”). Moreover, the use of the word “including” in Section 1720G(a)(2)(B) is not to be construed narrowly, as providing an all inclusive list of qualifying disabilities, but rather sets forth examples of the types of disabling conditions that would constitute a “serious injury” under the statute. See Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U. S. 95, 100 (1941) (“the term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.”). By including “other mental disorder” in addition to those caused by “psychological trauma,” the statute strongly suggests an intention to include not only disabling conditions caused by external trauma, but also conditions that may have been caused by an illness or disease process. While it seems clear that the phrase “serious injury” cannot be read to mean only “traumatic injury,” the inquiry does not end there.
While the statute itself does not provide a more concrete definition of the phrase “seriously injured,” that term has been widely used by the Department of Defense (DoD) and Department of Veterans Affairs (VA) in relation to benefits, care and services provided to service members and veterans of Operation Enduring Freedom (OEF) and Operation Iraqi Freedom (OIF). DoD classifies casualties for reporting purposes into one of the following seven casualty statuses: Deceased, DUSTWUN (a temporary status), Missing, Very Seriously Ill or Injured (VSI), Seriously Ill or Injured (SI), Incapacitating Illness or Injury (III), and Not Seriously Injured (NSI). This DoD classification system is used by both DoD and VA to provide and coordinate care to service members of OEF and OIF. For example, DoD uses these classifications to determine eligibility for a service members’ next of kin (NOK) to receive travel at government expense to aid the service member’s recovery through presence at their hospital bedside. Both VA and DoD use this classification to qualify a service member for the assignment of a Federal Recovery Care Coordinator, the individuals tasked with ensuring seamless transition from DoD to VA care. As a further example, VA uses this classification to assign case managers to veterans of OEF and OIF in order to ensure that their care is well coordinated.
The legislative history of the Veterans and Caregivers Omnibus Health Services Act, P.L. 111-163, makes clear that Congress intended for caregiver benefits under the act to extend to those service members of OEF and OIF who are classified as “seriously ill or injured” or “very seriously ill or injured.” The Joint Explanatory Statement that accompanied the legislation expressly states:
The Compromise Agreement also includes an authorization for appropriations that is below the estimate furnished by the Congressional Budget Office. The lower authorization level is based on information contained in a publication (Economic Impact on Caregivers of the Seriously Wounded, Ill, and Injured, April 2009) of the Center for Naval Analyses (CNA). This study estimated that, annually, 720 post-September 11, 2001 veterans require comprehensive caregiver services. The Compromise Agreement limits the caregiver program only to “seriously injured or very seriously injured” veterans who were injured or aggravated an injury in the line of duty on or after September 11, 2001.
The referenced study conducted by the Center for Naval Analyses (CAN), entitled “Economic Impact on Caregivers of the Seriously Wounded, Ill, and Injured,” expressly based its estimates of the need for caregiver services on the DoD classifications of “Very Seriously Injured and Ill” and “Seriously Injured and Ill.” Thus the study states:
We estimate that the average annual incidence of seriously WII service members needing a caregiver is about 720. This estimate is based on the number of “very seriously ill or injured” or ‘seriously ill or injured’ (VSI/SI) service members. If we restrict this to just VSI cases, the average annual number is 170.
While the statute uses a truncated reference to the DoD classification system, “seriously injured,” rather than the full reference to “seriously injured and ill,” this should not be interpreted as an intent to further limit eligibility by excluding service members whose need for caregiver services is based on illness. It is common for the DoD classifications of “Very Seriously Injured and Ill” and ‘Seriously Injured and Ill” to be truncated when referenced to “very seriously injured” and “seriously injured.” For example, in a 2005 memorandum between the Department of Defense and Department of Veterans Affairs with the express subject of “Expediting Veterans Benefits to Members with Serious Injuries and Illnesses,” the body of the memo truncates the reference by deleting the word “ill” as follows:
The Department of Veterans Affairs (VA) and the Department of Defense (DoD) identified an initiative to expedite data exchange between the DoD and the VA for ‘seriously injured’ members, and those members entering the Physical Evaluation Board Process.
Similarly, in a 2008 report the Department of Veterans Affairs Office of the Inspector General noted that the truncated reference to “seriously injured” or “seriously disabled” was meant to refer to the traditional DoD classification codes that include illness, stating:
VBA defines seriously disabled veterans as service members who definitely or possibly will be discharged from military service because of an injury or illness and all veterans with DOD classification codes of very seriously injured, seriously injured, or a special category involving an amputation.
Despite the use of the common, truncated reference to DoD’s classification of “Seriously Injured and Ill, Congress clearly intended the legislation to cover those individuals identified in the (CNA) study as in need of caregiver services, estimated to be 720 families annually, and appropriated funding to cover the costs of providing caregiver benefits to those families.
Finally, the caregiver law cannot be read in isolation and without regard to the carefully woven system of benefits codified in title 38 of the U.S. Code, which it amends. Importantly, with a single readily distinguishable exception, the entire VA benefit system is structured so as not to differentiate between injury and illness as a basis for eligibility. Thus, veterans are equally eligible for monetary compensation for any injury or illness that is incurred coincident with service or is aggravated by service, entitlement to higher levels of “special monthly compensation” may be awarded based on disabilities resulting from either an injury or disease process, and veterans who are determined catastrophically disabled due to an injury or disease receive a higher priority access to VA healthcare. The caregiver provisions should be interpreted in harmony with the general principle established in the statutory scheme, that veterans with a qualifying disability are entitled to benefits whether such disability resulted from an injury or an illness. See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 559 (2005) (“In order to determine the scope of [a statutory provision] . . . then, we must examine the statute's text in light of context, structure, and related statutory provisions”); United States v. Gomez, 490 U.S. 858, 864 (1989) (“We interpret the Federal Magistrates Act in light of its structure and purpose.”).
- The Stipend
- In establishing a schedule for caregiver stipends, the IFR unreasonably applies an untested, flawed “scoring” methodology that dramatically underestimates the number of hours of caregiving needed by an individual who requires supervision or protection and is inconsistent with law.
The caregiver law directs that the amount of the monthly personal caregiver stipend is to be determined in accordance with a VA-established schedule that is based on the amount and degree of personal care services provided. The VA explains that in arriving at a stipend amount it will determine the veteran’s level of dependency by reference to the degree to which the veteran in unable to perform activities of daily living or the degree to which the veteran is in need of supervision of protection based on symptoms or residuals of neurological or other impairment or injury. The IFR methodology with reference to the criterion, need for supervision and protection, fails even to approximate the amount and degree of personal care services many wounded warriors with traumatic brain injury and other behavioral impairments need. In describing that methodology, the VA explains that its “scoring criteria” are “based on three widely accepted clinical tools for measuring ADLs and functional dependence: The Katz Basic Activities of Daily Living Scale, the UK Functional Independence Measure and Functional Assessment Measure; and the Neuropsychiatric Inventory.” We note, in that regard, that at least one of those tools, the Neuropsychiatric Inventory, is not, by its own description, a tool for measuring functional dependence, but instead an assessment tool to monitor change. The following case profiles demonstrate that, regardless of the utility of those tools in other settings, the scoring methodology itself has not been adequately tested, and must be revised.
- Veteran A returned from Iraq in 2008 and has been clinically diagnosed with severe depression which began in service. He is able to perform all activities of daily living, but is unable to work or perform much in the way of gainful activity because of symptoms of depression which include utter lack of energy, difficulty in even getting out of bed or concentrating on tasks, and feelings of hopelessness. Medications have not alleviated his now-chronic symptoms, and his family members have maintained virtually full-time watch to ensure that he does not attempt to harm himself. Under the current scale, since a need for total assistance in any one domain is assigned a rating of only “4”, Veteran A is rated as a “4” for safety risk, “4” for self-regulation, and “4” for difficulty with planning and organizing, for a total score of 12. Because the scoring criteria under the IFR creates an irrebuttable presumption that a veteran with a score of 12 or less requires 10 hours per week of caregiver assistance, this veteran’s primary caregiver, his wife, would receive a stipend for ten hours of caregiving per week – or about $15 day -- even though she is effectively a full-time caregiver and thus unable to pursue employment and earn any additional income.
- Veteran B returned from Afghanistan where he sustained a severe traumatic brain injury and other wounds as a result of an IED blast. After a lengthy post-operative course during which he underwent extensive rehabilitation, he walks with a limp but is able to perform all activities of daily living. Despite his head injuries, he has no cognitive deficit, seizures, memory problems, or difficulty with planning and organizing. In fact, the single manifestation of his injuries is that he experiences severe, erratic mood swings, and unpredictably and often exhibits aggressive and even violent outbursts. He is unable to control these behaviors, even with medication, and as a result is unable to work. His wife accompanies him everywhere – serving as a buffer to avoid incidents, driving him to frequent medical appointments, and keeping him out of trouble. Under the IFR rating scale, Veteran B is rated as a 4 based on total inability to self-regulate; as a result, his wife would receive the minimum stipend, based on the methodology that “the eligible veteran is presumed to require10 hours per week of caregiver assistance.” Notwithstanding that regulatory presumption, the fact is that his wife is his full-time caregiver.
- Veteran C sustained a moderate to severe traumatic brain injury during his third tour in Iraq and suffers from severe chronic short-term memory loss. While he is able to carry out all activities of daily living, he is both very forgetful and easily distracted. As a result, he is unable to work and spends much of his time at home. Even after a lengthy period of rehabilitation, he manifests behaviors such as forgetting to turn off appliances or the stove that have frightened his family. His mother felt the need to quit her job and stay home with him to prevent any mishap. Under the current scale, Veteran C is rated as 4 for difficulty with planning and organizing, a 4 for safety risks, and a 4 for difficulty with recent memory, for a score of 12. Under the IFR rating criteria, Veteran C’s mother, his primary caregiver, would receive a stipend that is based on the assumption that she provides only ten hours of caregiving assistance per week; in fact she spends approximately that much time in a caregiving capacity daily.
These hypotheticals underscore the fundamental flaw in the IFR scoring methodology applicable to caregivers who provide protection or supervision. If an aggregated scoring methodology is to be employed, it must recognize that deficits in a single domain -- such as being a safety risk or being unable to regulate severe mood swings, for example -- may create a need for total assistance and should be sufficient to result in a determination that the veteran requires full-time caregiving. Yet this model fails to recognize that, unlike a methodology that gauges caregiving need of an individual with limitations in activities of daily living, a need for full-time caregiving cannot necessarily be determined by an aggregated-scoring tool.
WWP’s recent survey of caregivers demonstrates the above-cited concerns, as illustrated by a respondent’s comments:
I was told that my husband scored in the low Tier level I, with an ‘11.’ This only allows 10 hrs a week, approximately $426 a month. I don't agree with this because my husband needs continuous supervision due to his TBI, PTSD, Mental Health and also sometimes 2-3 days a week requires bed rest due to physical pain. So 10 hrs a week is like about 1.42 hrs a day. I have to help him remember to take meds 3 x times daily, assist with cooking, driving, medical appointment; and just overall supervision for his safety. Ten hrs a week is nowhere near the time I spend caring for him.
Clearly, as the above examples illustrate, the scoring methodology is flawed as it relates to assessing the extent and degree of personal services required by veterans for whom caregiving-assistance is based on a need for supervision or protection. But the criteria suffer from a more fundamental flaw. Under the law, “the amount of the … stipend … shall be determined in accordance with a schedule established by the Secretary that specifies stipends based upon the amount and degree of personal care services provided.” The law defines the phrase “personal care services” in pertinent part to mean “services that provide the veteran… [a]ssistance with one or more independent activities of daily living.” Those IADL’s assess the relative ability of an individual to carry out specified activities independently, to include use the telephone, shop, prepare meals, keep house, do laundry, travel, take medications correctly, and handle finances. The law clearly requires the VA at least to include these criteria in determining the amount and degree of personal care services a caregiver is providing, as it relates to determining a stipend amount. The IFR does not do so, and, accordingly, is not consistent with law.
For the reasons set forth above, Section 71.40(c)(4) must be revised.
- While establishing a cap of forty hours/week for a caregiver stipend, the IFR does not address how caregiving-needs exceeding forty hours would be covered.
The IFR states that an eligible veteran with a score of “21 or higher . . . is presumed to require 40 hours per week of Caregiver assistance.” But it fails to address circumstances under which caregiving-needs exceed that limit. WWP understands that the intent of this provision is to cap stipend amounts at that level. The underlying rationale, as WWP understands it, is laudatory -- to avoid having caregivers work unreasonably long, strenuous hours and to give them respite by meeting those additional needed caregiving hours through home health agency services. That important policy should be specifically articulated in the regulation. However, the policy must also take account of the circumstances facing caregivers in rural and other areas where home health services are not available (as well as those instances in which agencies are not capable of providing the required specialized care a wounded warrior needs). Given those relatively frequent situations, WWP believes it would be unreasonable to fail to address this situation. We urge that the VA revise the regulation to afford caregivers a reasonable opportunity to rebut the presumption that a veteran requires only 40 hours of caregiver assistance a week, and, accordingly to enable a caregiver to receive a stipend amount that encompasses and reasonably approximates the additional number of caregiving hours that circumstances may require.
- Setting the stipend rate based only on the amount of services provided is inconsistent with law.
In directing the Secretary to establish a schedule for determining the amount of the monthly caregiver stipend, the statute provides the VA must, to the extent practicable, ensure that the stipend amount “is not less than the monthly amount a commercial home health care entity would pay an individual in the geographic area of the eligible veteran to provide equivalent personal care services to the eligible veteran.”  Importantly, two different considerations must be built into the development of that stipend schedule: “the amount and degree of personal care services provided.” The VA’s formulation, however, interprets the statute in a manner that effectively ignores the term “degree.” This interpretation cannot stand.
The VA explains that “the direct stipend payment is calculated based on the BLS wage rate for a Home Health Aide using the 75th percentile of the hourly wage rate in the geographic area of residence of the eligible veteran.”  The Bureau of Labor Statistics describes a home health aide as one who provides “routine individualized healthcare such as changing bandages and dressing wounds, and applying topical medications to the elderly, convalescents, or persons with disabilities at the patient's home or in a care facility. Monitor or report changes in health status. May also provide personal care such as bathing, dressing, and grooming of patient.”  WWP submits the caregiving needs of many within the population of young severely wounded veterans are far more extensive than the kind of routine care described by BLS, and often cannot be met by a home health aide. In describing her role as a caregiver, one explained, “I am my husband’s accountant; occupational therapist; physical therapist; driver; mental health counselor; and life coach.”  Further, during its consideration of caregiver legislation, Congress heard testimony indicating that home health aides often lack the specialized training or capability to meet the needs of profoundly disabled veterans. 
The VA states that “[w]e determined that the 75th percentile most accurately reflects the national hourly wage rate for the competencies to be performed.”  WWP questions the basis for that determination. Family caregivers of more severely wounded veterans seldom provide simply home-health care, but typically assist (and often substitute for) the veteran in carrying out a range of other demanding responsibilities, to include financial management and running a household. The VA states that “[t]here is a large standard deviation on wage rates for home health aides depending on their experience and education as well as the economic factors in the geographic area (mainly supply and demand).”  Given the higher level of functions provided by many caregivers, and the VA’s own acknowledgement that wage rates vary depending on the complexity of duties performed, the seventy fifth percentile fails to address adequately the degree of personal care services provided.
Finally, setting the stipend at the 75th percentile fails to take account of the purpose of the stipend, which is to provide a level of financial support to ensure that the economic strains on family caregivers do not result in or contribute to families no longer being able to sustain their caregiving.  The Secretary cannot ignore the reality that setting the stipend level too low will directly result in continued economic strain for caregivers. As scholars have observed, caregiver pay provides a low living standard and “caregiver” is included in the class of low-wage jobs that leave workers struggling.  Caregivers and other direct-service workers often do not receive livable wages, and a high proportion of these workers rely on some form of public assistance in order to make ends meet.  Considered in terms of Bureau of Labor Statistics’ national estimates, a uniform per-hour stipend rate at the 75th percentile is only $11.55/hour, more than $2.50/hour, or 18%, below the national estimate at the 90th percentile. 
Given that the stipend was designed to both reflect the degree of services provided by family caregivers and afford caregivers financial support to ease their economic strain, WWP urges that the caregiver stipend be appropriately set at the 90th percentile of the hourly wage rate in the geographic area of residence of the eligible veteran rather than the 75th.
- The IFR fails to address the processes for appealing adverse decisions.
The IFR is silent with respect to both a right to appeal adverse decisions under the program and with respect to the processes for exercising that right. The omission is glaring and must be remedied. An application for caregiver assistance may call upon VA personnel to make a wide-ranging number of decisions any one of which holds the potential for damaging error.
To illustrate, the law contemplates the potential for numerous clinical determinations under the law, with clinical judgment potentially involved in such determinations as whether there is a need for personal care services; whether provision of caregiver-assistance “is in the best interest of the veteran;” the extent of caregiver-assistance the veteran requires; and the quality of the personal care services provided to the veteran. Any one of those decisions has far-reaching ramifications. Yet VA claimants are barred from obtaining judicial or even administrative review (through the Board of Veterans Appeals) of “medical determinations.” It is critical, therefore, that with respect to those decisions that are truly medical determinations, the final regulation should, at a minimum, (a) specify the mechanism or mechanisms through which a caregiver or veteran may appeal such a decision, (b) require that caregivers and veterans be provided a written explanation of the basis of any clinical determination they question, (c) be afforded the right to provide independent medical evidence in support of any appeal, and (d) be afforded a reasonably prompt, independent review of such appeal.
The caregiver law, of course, states that “[a] decision by the Secretary under this section affecting the furnishing of assistance or support shall be considered a medical determination.” In our view, therefore, a final regulation must provide claimants and Department personnel clear direction as to precisely which issues under this program are actually medical determinations and which are not. We believe that the proper definition of “medical determinations” is the one provided in 38 C.F.R. § 20.101(b): “Medical determinations, such as determinations of the need for and appropriateness of specific types of medical care and treatment for an individual, are not adjudicative matters and are beyond the Board’s jurisdiction. Typical examples of these issues are whether a particular drug should be prescribed, whether a specific type of physiotherapy should be ordered, and similar judgmental treatment decisions with which an attending physician may be faced.” Clearly establishing the applicability of this definition is essential to making sure that veterans do not lose their due process rights to challenge any adverse eligibility determination, as they have such rights as to other services and benefits provided by the Veterans Health Administration. See, e.g., 38 C.F.R. § 20.101(b) (“The Board’s appellate jurisdiction extends to questions of eligibility [.]”). Providing a cross-reference to that regulation would limit unappealable decisions under the statute to the kinds of clinical determinations addressed in regulation. Compare Zimick v. West, 11 Vet. App. 45, 48 (1998) (“[S]pecific medical determinations as to the appropriate medical treatment are not adjudicative matters over which the Board has jurisdiction.”), with Meakin v. West, 11 Vet. App. 183, 187 (1998) (“determinations as to whether the applicant is a veteran, whether he seeks treatment for a service-connected disability, and whether VA facilities are geographically inaccessible are on their face obviously not medical determinations.”). Any broader limitation of appealability would raise serious due process concerns by precluding veterans from challenging eligibility and other similar determinations, to which they have property rights under law. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976); Nat’l Ass’n of Radiation Survivors v. Derwinski, 994 F.2d 583, 588 n.7 (9th Cir. 1992).
Certainly Congress cannot be deemed to have intended to abrogate a claimant’s right to due process. Additionally, Section 1720G(c)(1) must be read to harmonize with an existing body of law, and longstanding precedent, governing appellate and judicial review. Congress cannot have intended that claimants would be denied the opportunity to pursue appellate remedies on issues that would otherwise be subject to such review. By way of illustration, Congress could not have intended to deny claimants a right to administratively appeal a decision that a veteran’s injury was not (a) incurred in line of duty; (b) incurred on or after September 11, 2001, or (c) incurred in service. Congress could not have intended to deny a veteran the right to appeal a VA determination that denies his or her application for comprehensive caregiver assistance on the basis that the caregiver is not a member of the veteran’s family under 38 U.S.C. § 1720G(d)(A). A VA denial of a veteran’s application based on a decision under 38 U.S.C. § 1720G(d)(B) that the veteran’s caregiver (who is not a member of the veteran’s family) does not live with the veteran surely cannot be beyond review on the ground that it is a “medical determination.” A decision to deny a designated Primary Caregiver travel benefits or a monthly stipend to which she or he is specifically entitled by law cannot be beyond the range of administrative and judicial review. Even decisions made by clinicians cannot be shielded from administrative review as an exercise of medical judgment when they are mistakenly based on the wrong legal standard. It is not inconceivable, for example, that a clinician or clinicians might determine that a veteran not in need of personal care services based on their employing a “need for nursing home care” criterion, contrary to law.
While Section 1720(c)(1) is apt recognition that implementing Section 1720G(a) would entail a series of determinations requiring the exercise of medical judgment, the legislative history provides not a scintilla of evidence to suggest that Congress had any intention of taking the unprecedented step of depriving veterans of longstanding appellate rights. The final regulation must make that clear.
- The IFR provisions regarding respite care fail to address specific requirements of the caregiver law.
Respite is one of the most important needs caregivers face, and the caregiver law provides important direction regarding this vital support. But the IFR omits reference to a key provision of the law. While the IFR states that respite care is to include “24-hour-per day care … commensurate with the care provided the Family Caregiver to permit extended respite,” the IFR is silent regarding the critically important statutory direction that “respite care … shall be medically and age-appropriate and include in-home care.” Department officials have advised that this omission was unintentional. WWP appreciates programmatic efforts to stress the importance of making such respite available, and certainly looks forward to having this requirement clearly articulated in the final regulation. Of course, absent language that at least restates that requirement, there is concern that VA facility personnel might at some point erroneously advise caregivers that their only extended-respite option is to place their warriors in VA nursing home units – precisely the concern that prompted the age-appropriate, in-home provisions of the law.
5. The final regulation should clarify CHAMPVA eligibility where a caregiver loses prior coverage.
Section 71.40(c) aptly states that “VA will provide to Primary Family Caregivers all of the benefits listed in paragraphs (c)(1) through (4).” But the IFR goes on to state at Section 71.40(c)(3) that “primary family caregivers are to be considered eligible for enrollment in the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA), unless they are entitled to care or services under a health-plan contract”. Stating that “caregivers are to be considered eligible” undercuts that directive language – diluting an expression of entitlement into a vague instruction. In short, the phrase “to be considered” is ambiguous surplusage, and should be deleted from the final regulation.
The IFR phrasing has significance, however, because it highlights the fact that unidentified VA personnel will make determinations under this section as to whether caregivers “are entitled to care or services under a health-plan contract.” That raises the question, what further guidance will those personnel be given in making such determinations? It would not be extraordinary, for example, particularly under current economic conditions, for a caregiver to lose health insurance coverage benefits after having begun to receive VA caregiver-assistance. (One can readily imagine, for example, the plight of a middle-aged mother who, as her warrior-son’s full-time caregiver, suddenly loses health benefits when her husband loses his job. Consider also that the same caregiver, living on a fixed, limited income and facing growing expenses might lose health coverage because of being unable to afford to pay health-care premiums.) It should be made clear that entitlement to CHAMPVA coverage is not simply a one-point-in-time determination, but that this support must be provided when needed throughout the period of caregiving.
The law itself makes this clear, stating without qualification as to any point in time, “the Secretary shall provide to family caregivers . . . medical care under Section 1781 of this title.” Importantly, too, the purpose of the law is “to provide assistance to caregivers of veterans” in recognition of their inherent vulnerabilities. As WWP testified in support of the S. 801 (later incorporated into S. 1963), “studies have shown that family caregivers experience an increased likelihood of stress, depression, and mortality as compared to their non-caregiving peers” and “caregivers report poorer levels of perceived health, more chronic illnesses, and poorer immune responses to viral challenges.” Senator Daniel Akaka, the lead sponsor of S. 801 and then‑chairman of the Senate Veterans’ Affairs Committee, acknowledged these vulnerabilities and stated that the purpose of S. 801 was to “help alleviate those problems [such as decreased household income and potential loss of health insurance] so as to allow the caregiver to focus entirely on caring for the veteran.” A caregiver’s losing health coverage certainly creates additional vulnerability for both the caregiver and the veteran. We urge that the provision be clarified to ensure that caregivers who at any point in time lose prior health benefits can enroll in CHAMPVA.
- The final regulation should clarify eligibility for reimbursement of travel expenses.
In comments supplementing publication of the IFR, the VA acknowledges that “VA must provide Primary and Secondary Family Caregivers with ‘lodging and subsistence under [38 U.S.C.] 111(e),’” as amended by the caregiver law. The VA states that it has implemented that requirement by including in the IFR a provision stating that family caregivers “are to be considered eligible for beneficiary travel under 38 CFR part 70.” This phrasing suffers from the same flaw as the “are to be considered eligible” phrasing employed with respect to CHAMPVA (discussed above). Moreover, the IFR fails to amend the beneficiary travel regulations at 38 CFR part 70 or to include any language addressing the scope of the travel benefit established in Section 104 of the caregiver law. However, that provision of the caregiver law makes it clear that a family caregiver is eligible for the expenses of travel in connection with (and for the duration of) a veteran’s examination, treatment, or care notwithstanding that the veteran may not need an attendant to perform such travel.
WWP has received reports from caregivers indicating apparent misunderstanding on the part of VA personnel regarding caregivers’ eligibility for beneficiary-travel reimbursement. In our view, failing to include in regulations the substantive changes in beneficiary-travel eligibility established in the caregiver law (beyond the vague statement that caregivers are to be considered eligible for beneficiary travel) can only compound the risk of error.
Wounded Warrior Project have not received any federal grants or contracts, during this year or in the last two fiscal years, from any agency or program relevant to the subject of the July 11, 2010 Subcommittee on Health Oversight Hearing on the Caregiver Assistance Program implementation.
 See, e.g., Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, Public Law 110-343.
 Federal Register, 76, no. 87 (May 5, 2011): 26150.
 Id. (emphasis added).
 38 U.S.C. § 1720G(a)(3)(C)(i).
 Federal Register (May 5, 2011): 26150
 38 U.S.C. § 1720G(a)(2)(B) (2010).
 38 C.F.R. § 71.15 (2011).
 The Department acknowledges that the law imposes no such test. See Federal Register (May 5, 2011): 26150.
 38 C.F.R. § 71.15 (2011).
 38 CFR § 71.20(c) (2011).
 38 CFR § 71.25(a)(2) (2011).
 38 CFR § 71.40(c)(4)(ii) (2011).
 38 CFR § 17.25(f) (2011).
 38 C.F.R. § 71.20(b) (2011)
 38 U.S.C. § 1720G(a)(2)(B) (2010).
 Psychological trauma” is not itself a psychiatric diagnosis. See Diagnostic and Statistical Manual of Mental Disorders, 4th. Edition, American Psychiatric Association.
 “Military Personnel Casualty Matters, Policies, and Procedures,” Department of Defense Instructions 1300.18, September 18, 2000, p. 19, http://biotech.law.lsu.edu/blaw/dodd/corres/pdf2/i130018p.pdf.
 “Military Personnel Casualty Matters, Policies, and Procedures,” Department of Defense Instructions 1300.18, September 18, 2000, p. 7, http://biotech.law.lsu.edu/blaw/dodd/corres/pdf2/i130018p.pdf.
 Memorandum from the Undersecretary of Defense for Personnel and Readiness, June 10, 2009, http://www.health.mil/libraries/HA_Policies_and_Guidelines/09-021.pdf.
 VHA Handbook 1010.01, “Transition Assistance and Case Management of Operation Iraqi Freedom (OIF) and Operation Enduring Freedom (OEF) veterans,” May 31, 2007.
 Joint Explanatory Statement Submitted by Senator Akaka, Chairman of the Senate Committee on Veterans’ Affairs, Congressional Record, April 22, 2010, S2567, http://www.gpo.gov/fdsys/pkg/CREC-2010-04-22/pdf/CREC-2010-04-22-pt1-PgS2566.pdf#page=1.
 “Economic Impact on Caregivers of the Seriously Wounded, Ill, and Injured,” CNA Analysis and Solutions, April 2009, p. 3, http://www.cna.org/documents/D0019966.A2.pdf (emphasis added).
 Memorandum from the Undersecretary of Defense for Personnel and Readiness, September 27, 2005, http://www.health.mil/libraries/HA_Policies_and_Guidelines/05-018.pdf.
 “Audit of Veterans Benefits Administration Transition Assistance for Operations Enduring and Iraqi Freedom Service Members and Veterans,” Department of Veterans Affairs Office of Inspector General, July 17, 2008, pg. i, http://www.va.gov/oig/52/reports/2008/VAOIG-06-03552-169.pdf (emphasis added).
 38 U.S.C. § 1980A (2010).
 38 C.F.R. § 3.303(a) (2011).
 38 C.F.R. §3.350(a)(3),(f)(4)(i) (2011).
 38 C.F.R §17.36(e) (2011).
 Federal Register (May 5, 2011): 26150.
 38 U.S.C. § 1720G(a)(3)(C)(i) (2010).
 38 U.S.C. § 1720G(d)(4) (2010).
Lawton MP, Brody EM. Assessment of older people: self-maintaining and instrumental activities of daily living. Gerontologist 1969; 9(3):179-186; http://www.unmc.edu/media/intmed/geriatrics/nebgec/pdf/frailelderlyjuly09/toolkits/timmactivitiesdailyliving.pdf.
 38 CFR § 71.40(c)(6)(4)(iv)(a) (2011).
 38 U.S.C. § 1720G(a)(3)(C)(ii) (2010).
 Id. at § 1720G(a)(3)(C)(i) (emphasis added).
 Federal Register (May 5, 2011): 26154.
 U.S. Department of Labor, Bureau of Labor Statistics, Occupational Employment and Wages, May 2010, 31-1011, Home Health Aides, http://www.bls.gov/oes/current/oes311011.htm.
 Wounded Warrior Project Statement for the Record, “Oversight Hearing: TBI – Progress in Treating the Signature Wound of the Current Conflicts,” Committee on Veterans Affairs, U.S. Senate, May 5, 2010.
 See testimony of Anna Frese, “Meeting the Needs of Family Caregivers of Veterans,” Committee on Veterans Affairs, U.S. House of Representatives, Hrg. No. 111-26, 111th Cong. 1st Sess., June 4, 2009.
 Federal Register (May 5, 2011): 26154.
 See Sen. Rep. No. 111-080, Caregiver and Veterans Health Services Act of 2009 (September 25, 2009), http://thomas.loc.gov/cgibin/cpquery/?&dbname=cp111&sid=cp111sBb3W&refer=&r_n=sr080.111&item=&&&sel=TOC_0&“Hearing on Pending Health Care Legislation,” Committee on Veterans Affairs, U.S. Senate (April 22, 2009); http://veterans.senate.gov/hearings.cfm?action=release.display&release_id=55fa0387-887a-479f-b97618c26056444e
 See Beth Shulman, The Betrayal of Work: How Low-Wage Jobs Fail 30 Million Americans, The New Press (2003).
 Hewitt et al., “A synthesis of direct service workforce demographics and challenges access intellectual/developmental disabilities, aging, physical disabilities, and behavioral health,” National Direct Service Workforce Center (Nov. 2008).
 Bureau of Labor Statistics, Id.
 38 USC § 1720G(c)(1) (2010).
 38 CFR §71.40(c)(3) (2011).
 Explanatory Statement: Amendment of the House of Representatives to S.1963 Caregivers and Veterans Omnibus Health Services Act of 2010. Submitted by Senator Akaka, Congressional Record 156:58 S2566 (April 22, 2010) Available from: US Government Printing Office; accessed June 20, 2011.
 Hearing on Pending Health-Related Legislation, Committee on Veterans Affairs, U.S. Senate (April 22, 2009)
 Senator Akaka (HI). Congressional Record 155:56 (April 2, 2009) p. S4350 Available from: US Government Printing Office; accessed June 20, 2011.
 Federal Register (May 5, 2011): 26153.