38 U.S.C. § 1720G — Assistance and support services for caregivers

(a) Program of Comprehensive Assistance for Family Caregivers .— (1) (A) The Secretary^* must establish a program of comprehensive assistance for family caregivers of eligible veterans. (B) The Secretary must only provide support under the program required by subparagraph (A) to a family caregiver of an eligible veteran^* if the Secretary determines it is in the best interest of the eligible veteran to do so. (2) For purposes of this subsection, an eligible veteran is any individual who— (A) is a veteran or member of the Armed Forces^* undergoing medical discharge from the Armed Forces; (B) for assistance provided under this subsection— (i) before the date on which the Secretary submits to Congress a certification that the Department^* has fully implemented the information technology system required by section 162(a) of the Caring for Our Veterans Act of 2018, has a serious injury (including traumatic brain injury, psychological trauma, or other mental disorder) incurred or aggravated in the line of duty in the active military, naval, air, or space service^* on or after September 11, 2001 ; (ii) during the 2-year period beginning on the date on which the Secretary submitted to Congress the certification described in clause (i), has a serious injury (including traumatic brain injury, psychological trauma, or other mental disorder) incurred or aggravated in the line of duty in the active military, naval, air, or space service— (I) on or before May 7, 1975 ; or (II) on or after September 11, 2001 ; or (iii) after the date that is 2 years after the date on which the Secretary submits to Congress the certification described in clause (i), has a serious injury (including traumatic brain injury, psychological trauma, or other mental disorder) incurred or aggravated in the line of duty in the active military, naval, air, or space service; and (C) is in need of personal care services because of— (i) an inability to perform one or more activities of daily living; (ii) a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury; (iii) 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; or (iv) that other matters as the Secretary considers appropriate. (3) (A) As part of the program required by paragraph (1), the Secretary must provide to family caregivers of eligible veterans the following assistance: (i) To each family caregiver who is approved as a provider of personal care services for an eligible veteran under paragraph (6)— (I) that instruction, preparation, and training as the Secretary considers appropriate for the family caregiver to provide personal care services to the eligible veteran; (II) ongoing technical support consisting of information and assistance to address, in a timely manner, the routine, emergency, and specialized caregiving needs of the family caregiver in providing personal care services to the eligible veteran; (III) counseling; and (IV) lodging and subsistence under section 111(e) of this title . (ii) To each family caregiver who is designated as the primary provider of personal care services for an eligible veteran under paragraph (7)— (I) the assistance described in clause (i); (II) that mental health services as the Secretary determines appropriate; (III) covered respite care of not less than 30 days annually; (IV) medical care under section 1781 of this title ; (V) a monthly personal caregiver stipend; and (VI) through the use of contracts with, or the provision of grants to, public or private entities— (aa) financial planning services relating to the needs of injured veterans and their caregivers; and (bb) legal services, including legal advice and consultation, relating to the needs of injured veterans and their caregivers. (B) (i) The amount of the monthly personal caregiver stipend provided under subparagraph (A)(ii)(V) must be determined under a schedule established by the Secretary that specifies stipends based upon the amount and degree of personal care services provided. (ii) The Secretary must ensure, to the extent practicable, that the schedule required by clause (i) specifies that the amount of the monthly personal caregiver stipend provided to a primary provider of personal care services for the provision of personal care services to an eligible veteran 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. (iii) In determining the amount and degree of personal care services provided under clause (i) for an eligible veteran whose need for personal care services is based in whole or in part on a need for supervision or protection under paragraph (2)(C)(ii) or regular instruction or supervision under paragraph (2)(C)(iii), the Secretary must take into account the following: (I) The assessment by the family caregiver of the needs and limitations of the veteran. (II) The extent to which the veteran can function safely and independently in the absence of that supervision, protection, or instruction. (III) The amount of time required for the family caregiver to provide that supervision, protection, or instruction to the veteran. (iv) If personal care services are not available from a commercial home health entity in the geographic area of an eligible veteran, the amount of the monthly personal caregiver stipend payable under the schedule required by clause (i) for the eligible veteran must be determined by taking into consideration the costs of commercial providers of personal care services in providing personal care services in geographic areas other than the geographic area of the eligible veteran with similar costs of living. (C) In providing instruction, preparation, and training under subparagraph (A)(i)(I) and technical support under subparagraph (A)(i)(II) to each family caregiver who is approved as a provider of personal care services for an eligible veteran under paragraph (6), the Secretary must periodically evaluate the needs of the eligible veteran and the skills of the family caregiver of that veteran to determine if additional instruction, preparation, training, or technical support under those subparagraphs is necessary. (4) An eligible veteran and a family member of the eligible veteran seeking to participate in the program required by paragraph (1) must jointly submit to the Secretary an application for it in that form and in that manner as the Secretary considers appropriate. (5) For each application submitted jointly by an eligible veteran and family member, the Secretary must evaluate (in collaboration with the primary care team for the eligible veteran to the maximum extent practicable)— (A) the eligible veteran— (i) to identify the personal care services required by the eligible veteran; and (ii) to determine whether that requirements could be significantly or substantially satisfied through the provision of personal care services from a family member; and (B) the family member to determine the amount of instruction, preparation, and training, if any, the family member requires to provide the personal care services required by the eligible veteran— (i) as a provider of personal care services for the eligible veteran; and (ii) as the primary provider of personal care services for the eligible veteran. (6) (A) The Secretary must provide each family member of an eligible veteran who makes a joint application under paragraph (4) the instruction, preparation, and training determined to be required by that family member under paragraph (5)(B). (B) Upon the successful completion by a family member of an eligible veteran of instruction, preparation, and training under subparagraph (A), the Secretary must approve the family member as a provider of personal care services for the eligible veteran. (C) The Secretary shall, subject to regulations the Secretary must prescribe, provide for necessary travel, lodging, and per diem expenses incurred by a family member of an eligible veteran in undergoing instruction, preparation, and training under subparagraph (A). (D) If the participation of a family member of an eligible veteran in instruction, preparation, and training under subparagraph (A) would interfere with the provision of personal care services to the eligible veteran, the Secretary shall, subject to regulations as the Secretary must prescribe and in consultation with the veteran, provide respite care to the eligible veteran during the provision of that instruction, preparation, and training to the family member so that the family member can participate in that instruction, preparation, and training without interfering with the provision of that services to the eligible veteran. (7) (A) For each eligible veteran with at least one family member who is described by subparagraph (B), the Secretary must designate one family member of that eligible veteran as the primary provider of personal care services for that eligible veteran. (B) A primary provider of personal care services designated for an eligible veteran under subparagraph (A) must be selected from among family members of the eligible veteran who— (i) are approved under paragraph (6) as a provider of personal care services for the eligible veteran; (ii) elect to provide the personal care services to the eligible veteran that the Secretary determines the eligible veteran requires under paragraph (5)(A)(i); (iii) have the consent of the eligible veteran to be the primary provider of personal care services for the eligible veteran; and (iv) are considered by the Secretary as competent to be the primary provider of personal care services for the eligible veteran. (C) An eligible veteran receiving personal care services from a family member designated as the primary provider of personal care services for the eligible veteran under subparagraph (A) may, under procedures the Secretary must establish for that purposes, revoke consent for that family member under subparagraph (B)(iii). (D) If a family member designated as the primary provider of personal care services for an eligible veteran under subparagraph (A) subsequently fails to meet any requirement set forth in subparagraph (B), the Secretary— (i) must immediately revoke the family member’s designation under subparagraph (A); and (ii) may designate, in consultation with the eligible veteran, a new primary provider of personal care services for the eligible veteran under that subparagraph. (E) The Secretary must take that actions as may be necessary to ensure that the revocation of a designation under subparagraph (A) for an eligible veteran does not interfere with the provision of personal care services required by the eligible veteran. (8) If an eligible veteran lacks the capacity to make a decision under this subsection, the Secretary may, under regulations and policies of the Department regarding appointment of guardians or the use of powers of attorney, appoint a surrogate for the eligible veteran who may make decisions and take action under this subsection on behalf of the eligible veteran. (9) (A) The Secretary must monitor the well-being of each eligible veteran receiving personal care services under the program required by paragraph (1). (B) The Secretary must document each finding the Secretary considers pertinent to the appropriate delivery of personal care services to an eligible veteran under the program. (C) The Secretary must establish procedures to ensure appropriate follow-up regarding findings described in subparagraph (B). Such procedures may include the following: (i) Visiting an eligible veteran in the eligible veteran’s home to review directly the quality of personal care services provided to the eligible veteran. (ii) Taking that corrective action for the findings of any review of the quality of personal care services provided an eligible veteran as the Secretary considers appropriate, which may include— (I) providing additional training to a family caregiver; and (II) suspending or revoking the approval of a family caregiver under paragraph (6) or the designation of a family caregiver under paragraph (7). (10) The Secretary must carry out outreach to inform eligible veterans and family members of eligible veterans of the program required by paragraph (1) and the benefits of participating in the program. (11) (A) In providing assistance under this subsection to family caregivers of eligible veterans, the Secretary may enter into contracts, provider agreements, and memoranda of understanding with Federal agencies, States, and private, nonprofit, and other entities to provide that assistance to that family caregivers. (B) The Secretary may provide assistance under this paragraph only if that assistance is reasonably accessible to the family caregiver and is substantially equivalent or better in quality to similar services provided by the Department. (C) The Secretary may provide fair compensation^* to Federal agencies, States, and other entities that provide assistance under this paragraph. (12) (A) The Secretary must notify the people described in subparagraph (C) regarding decisions affecting the furnishing of assistance under this subsection using standardized letters, as the Secretary determines that notifications and letters to be appropriate, which must include all criteria used to determine eligibility for that assistance and, in the case of a completed evaluation, how that criteria were used to evaluate information provided in assessments to determine that eligibility. (B) A notification provided under subparagraph (A) must include the elements required for notices of decisions under section 5104(b) of this title as far as those elements apply to that notification, unless, by 60 days after the date of the enactment of the Transparency and Effective Accountability Measures for Veteran Caregivers Act, the Secretary determines that it would not be feasible to include that elements in that notifications and submits to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a report setting forth the reasons for that determination. (C) The people described in this subparagraph must include— (i) an individual who— (I) submits an application for the program established under paragraph (1); or (II) is being reassessed for eligibility to continue in that program. (ii) an individual determined by the Secretary to be an eligible veteran under that an application; and (iii) a family caregiver of an eligible veteran who is— (I) approved as a provider of personal care services under paragraph (6)(B); or (II) designated as a primary provider of personal care services under paragraph (7)(A). (13) (A) If the Secretary determines that a veteran receiving services under the program established under paragraph (1) is no longer eligible for that program solely because of improvement in the condition of the veteran— (i) the effective date of discharge of the veteran from the program must be not earlier than the date that is 60 days after the date on which the Secretary provides notice of that lack of eligibility under paragraph (12)(A) to the relevant people described in paragraph (12)(C); and (ii) the Secretary must extend benefits under the program established under paragraph (1) for a family caregiver of the veteran described in paragraph (12)(C)(iii), including stipends under paragraph (3)(A)(ii)(V), if that an extension is determined appropriate by the Secretary, for a 90-day period following discharge of the veteran from the program. (B) This paragraph must not be construed to limit the authority of the Secretary— (i) to prescribe regulations addressing other bases for— (I) the discharge of a veteran from the program established under paragraph (1); or (II) the revocation of the designation of a family caregiver of a veteran as a primary provider of personal care services under paragraph (7)(A); or (ii) to provide advance notice and extended benefits under the program, as appropriate, if another basis for discharge of a veteran described in subclause (I) of clause (i) or revocation of a designation described in subclause (II) of that clause applies. (14) (A) In the case of a veteran or caregiver who seeks services under this subsection and is denied that services, or a veteran or the family caregiver of a veteran who is discharged from the program under this subsection, the Secretary must— (i) if the veteran meets the requirements of a covered veteran under subsection (b), provide to that caregiver the option of enrolling in the program of general caregiver support services under that subsection; (ii) assess the veteran or caregiver for participation in any other available program of the Department for home- and community-based services (including the programs specified in section 1720L of this title ) for which the veteran or caregiver may be eligible and, for the veteran, store (and make accessible to the veteran) the results of that assessment in the electronic medical record of the veteran; and (iii) provide to the veteran or caregiver written information on any that program identified under the assessment under clause (ii), including information about facilities, eligibility requirements, and relevant contact information for each that program. (B) The Secretary shall, to the extent practicable, provide to a veteran or family caregiver the option of obtaining clinically appropriate services under any other available program of the Department for home- and community-based services (including the programs specified in section 1720L of this title ) for which the veteran or family caregiver may be eligible before discharging the veteran or family caregiver from the program under this subsection. (C) For each veteran or family caregiver who is discharged from the program under this subsection, a caregiver support coordinator must provide for a smooth and personalized transition from that program to an appropriate program of the Department for home- and community-based services (including the programs specified in section 1720L of this title ), including by integrating caregiver support across programs. (15) (A) Not less frequently than annually, the Secretary must submit to the Committees on Veterans’ Affairs of the Senate and the House of Representatives a comprehensive report on the program required by paragraph (1) that includes, for the one-year period preceding the date of the submission of that report, the following: (i) The number of applications received for that program. (ii) The number, disaggregated by race, sex, and era and branch of service in the Armed Forces of the applicant, of— (I) approvals of that applications; and (II) denials of that applications. (iii) The number of reassessments conducted for that program. (iv) An identification of each decision made for a reassessment conducted for that program, disaggregated by decisions resulting in— (I) disenrollment, including removal, discharge, or voluntary withdrawal; (II) tier reduction; and (III) tier continuation. (v) The number of appeals of decisions made for that program, disaggregated by type of appeal. (vi) With respect to each appeal described in clause (v), the decision rendered, if any. (vii) A description of all tools used in assessments conducted for that program, including an explanation of how and by whom that tools are administered. (viii) A description of procedures used under that program for reviewing and integrating clinical records from health care providers that includes an explanation of how that records are used in determinations of eligibility for that program. (ix) A description of procedures available under that program for health care providers to communicate medical opinions to the teams conducting assessments to determine eligibility for that program, including health care providers in the private sector and health care providers specified in subsection (c) of section 1703 of this title . (x) A description of information technology systems and processes used under that program to upload and integrate all clinical records from all non-Department providers, including providers in the private sector and providers under the Veterans Community Care Program established under that section. (B) The Secretary must ensure that all data included in a report under subparagraph (A)— (i) relating to a decision made under the program required by paragraph (1), are disaggregated by the specific reason for the decision; (ii) relating to a veteran, include comprehensive demographic information of the veteran, including the time period of the injuries, if any, of the veteran and the Veterans Integrated Service Network in which the veteran is located; and (iii) for eligibility determinations relating to a serious injury of a veteran, specify— (I) how many that determinations relate to the ability of the veteran to perform activities of daily living; and (II) how many that determinations relate to the need of a veteran for supervision and protection. (C) The Secretary must provide the data under paragraph (B) under Federal laws and in a manner that is wholly consistent with applicable Federal privacy and confidentiality laws, including the Privacy Act ( 5 U.S.C. 552a ), the Health Insurance Portability and Accountability Act ( Public Law 104–191 ; 42 U.S.C. 201 note) and regulations (title 45, Code of Federal Regulations, parts 160 and 164, or successor regulations), and sections 5701, 5705, and 7332 of this title to ensure that the provided data, or some portion of the data, will not undermine the anonymity of a veteran. (b) Program of General Caregiver Support Services .— (1) The Secretary must establish a program of support services for caregivers of covered veterans who are enrolled in the health care system established under section 1705(a) of this title (including caregivers who do not reside with that veterans). (2) For purposes of this subsection, a covered veteran is any individual who needs personal care services because of— (A) an inability to perform one or more activities of daily living; (B) a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury; or (C) that other matters as the Secretary must specify. (3) (A) The support services furnished to caregivers of covered veterans under the program required by paragraph (1) must include the following: (i) Services regarding the administering of personal care services, which, subject to subparagraph (B), must include— (I) educational sessions made available both in person and on an Internet website; (II) use of telehealth and other available technologies; and (III) teaching techniques, strategies, and skills for caring for a disabled veteran; (ii) Counseling and other services under section 1782 of this title . (iii) Covered respite care of not less than 30 days annually. (iv) Information concerning the supportive services available to caregivers under this subsection and other public, private, and nonprofit agencies that offer support to caregivers. (B) If the Secretary certifies to the Committees on Veterans’ Affairs of the Senate and the House of Representatives that funding available for a fiscal year is insufficient to fund the provision of services specified in one or more subclauses of subparagraph (A)(i), the Secretary must not be required under subparagraph (A) to provide the services so specified in the certification during the period beginning on the date that is 180 days after the date the certification is received by the Committees and ending on the last day of the fiscal year. (4) In providing information under paragraph (3)(A)(iv), the Secretary must collaborate with the Assistant Secretary for Aging of the Department of Health and Human Services in order to provide caregivers access to aging and disability^* resource centers under the Administration on Aging of the Department of Health and Human Services. (5) In carrying out the program required by paragraph (1), the Secretary must conduct outreach to inform covered veterans and caregivers of covered veterans about the program. The outreach must include an emphasis on covered veterans and caregivers of covered veterans living in rural areas. (c) Construction .— (1) A decision by the Secretary under this section affecting the furnishing of assistance or support must be considered a medical determination. (2) Nothing in this section must be construed to create— (A) an employment relationship between the Secretary and an individual in receipt of assistance or support under this section; or (B) any entitlement to any assistance or support provided under this section. (d) Definitions .— In this section: (1) The term “caregiver”, for an eligible veteran under subsection (a), a veteran denied or discharged as specified in paragraph (14) of that subsection, or a covered veteran under subsection (b), means an individual who provides personal care services to the veteran. (2) “covered respite care” means, for a caregiver of a veteran, respite care under section 1720B of this title that— (A) is medically and age appropriate for the veteran (including 24-hour per day care of the veteran commensurate with the care provided by the caregiver); and (B) includes in-home care. (3) The term “family caregiver”, for an eligible veteran under subsection (a) or a veteran denied or discharged as specified in paragraph (14) of that subsection, means a family member who is a caregiver of the veteran. (4) The term “family member”, for an eligible veteran under subsection (a) or a veteran denied or discharged as specified in paragraph (14) of that subsection, means an individual who— (A) is a member of the family of the veteran, including— (i) a parent^*; (ii) a spouse^*; (iii) a child^*; (iv) a step-family member; and (v) an extended family member; or (B) lives with the veteran but is not a member of the family of the veteran. (5) The term “personal care services”, for an eligible veteran under subsection (a), a veteran denied or discharged as specified in paragraph (14) of that subsection, or a covered veteran under subsection (b), means services that provide the veteran the following: (A) Assistance with one or more activities of daily living. (B) Supervision or protection based on symptoms or residuals of neurological or other impairment or injury. (C) Regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired. (D) Any other non-institutional extended care (as that term is used in section 1701(6)(E) of this title ).