Petitions for Rulemaking: An Overview

Summary: The Administrative Procedure Act (APA), enacted in 1946, is known primarily for its procedural requirements for notice-and-comment rulemaking. Those requirements state that when issuing regulations, agencies must generally give public notice (i.e., issue a proposed rule), hold a public comment period, and publish a final rule.

Summary: A lesser known provision in the APA is a petition mechanism through which any interested party can request an agency to issue, amend, or repeal a rule (Section 553(e)). Such petitions are sometimes referred to as 553(e) petitions, petitions for rulemaking, petitions for reconsideration, administrative petitions, or citizens' petitions. The APA petition mechanism is a potentially efficient (and arguably underused) means for an individual or stakeholder to call on an agency to take a particular action.

Summary: Although Section 553(e) is only one sentence in length and provides very little detail, other sections of the APA contain some additional requirements for agencies with regard to receiving, considering, and responding to rulemaking petitions. An agency is not necessarily required to grant the petition or take the requested action, but the APA does require the agency to consider the petition and respond and to do so "within a reasonable time." Notably, however, agencies have a great deal of discretion in determining the specifics of their procedures for receiving, considering, and responding to petitions. In 2014, the Administrative Conference of the United States (ACUS) found that "few agencies have in place official procedures for accepting, processing, and responding to petitions for rulemaking" and that "how petitions are received and treated varies acrossâand even withinâagencies."

Summary: The APA's requirement for a petition mechanism applies to all agencies covered by the APA, which includes executive agencies and independent regulatory agencies. The APA's definition of rule is broad and covers a variety of agency actions, including several types of actions that are not subject to the APA's notice-and-comment rulemaking procedures. Such actions include agency interpretive rules and policy statementsâcategories that are often colloquially referred to as "guidance documents"âand rules of agency organization, procedure, and practice. Thus, the petition mechanism could potentially be used for more than just rules that have undergone, or would be required to undergo, the APA's notice-and-comment procedures.

Summary: If an agency grants a petition for rulemakingâthus issuing, amending, or repealing a rule per request of the petitionerâany relevant procedural requirements for rulemaking or other type of action would still apply. Furthermore, in taking any action pursuant to a petition, the agency may act only within the delegated authority Congress has provided to it in statute.

Summary: This report briefly discusses the origin of the APA petition mechanism, outlines the mechanism's requirements for agencies, provides information from various outside sources about what may make an effective petition, discusses potential benefits to agencies and the public, and, finally, identifies some examples of statutory petition mechanisms that Congress created in addition to the APA's.

Federal rulemaking is one of the crucial methods through which public policy is established and implemented in the United States. Under the constitutional separation of powers system, Congress enacts statutes th at often delegate rulemaking authority to federal agencies. Using that delegated authority, agencies issue regulations to implement those statutes and set the details of public policy.

To structure the ways in which agencies issue regulations pursuant to their delegated authority, Congress has created a statutory scheme of procedural controls. The most significant of these controls is the Administrative Procedure Act (APA) of 1946, which generally requires agencies to issue a proposed rule and take public comment prior to issuing a final rule. Congress designed these basic stepsâwhich create the backbone of the federal rulemaking processâto allow for public input into federal agencies' policymaking decisions. As one scholar noted, "One of the APA's objectives was to open rulemaking to public participation, especially by those whose interests might be adversely affected by an agency's actions. Congress viewed hearing from such parties as a normal part of the legislative process, and therefore applicable to rulemaking."

The APA's notice and comment requirements are possibly the best known and most significant mechanism allowing for public input into the rulemaking process. A lesser known procedural control that Congress created in the APA is a petition mechanism through which any interested party can request an agency to issue, amend, or repeal a rule. An agency is not necessarily required to grant the petition or take the requested action, but the APA does require the agency to respond and to do so in a "reasonable time." Thus, the APA petition mechanism is a potentially efficient (and arguably underused) means for an individual or stakeholder to call on an agency to take a particular action.

APA Petition Mechanism: Historical Origins

The APA's petition mechanism essentially re-stated the right to petition the government established by the U.S. Constitution, which can be traced as far back as the Magna Carta and Declaration of Independence.

The principles on which the APA's petition mechanism are based are generally traced by scholars to the Magna Carta and, in the American context, to the Declaration of Independence. Though it was centuries old by the time of the American Revolution, the Magna Carta was a heavy influence on the colonists who declared their independence from Britain in the 1770s. The Declaration of Independence, which relied on many of the stated rights and liberties granted under the Magna Carta, referenced the failure of the British government to respond to petitions by stating the following immediately after its list of grievances: "In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury." Thus, the implication was that the colonists had an inherent right to petition the king, as well as a right to a response.

Likely as a direct consequence of this perceived slight by the British government, the founders explicitly stated in the First Amendment of the U.S. Constitution that the people had a right to petition the government. Specifically, the First Amendment states that "Congress shall make no law â¦ abridging â¦ the right of the people â¦ to petition the Government for a redress of grievances." Although the First Amendment establishes a right to petition the government, it goes no further in detailing whether or how the government shall respond.

The lineage of this constitutional provision can be traced forward into the 20 th century and directly to the APA itself. The APA's petition mechanism, which allows interested persons to petition the government to take a rulemaking action, could easily be considered a more modern application of the constitutional right to petition. One scholar described the APA as "the bill of rights for the new regulatory state" that "defined the relationship between government and governed." The petition mechanism appears to fit within that characterization. Indeed, the APA's legislative history confirms the link: "Every agency possessing rule-making authority will be required to set up procedures for the receipt, consideration, and disposition of these petitions. The right of petition is written into the Constitution itself. This subsection confirms that right where Congress has delegated legislative powers to administrative agencies."

Congress enacted the APA in 1946 following a large expansion of the federal government's size and authorities during the Franklin D. Roosevelt Administration's New Deal. The APA is considered by most observers to be a compromise between two groups in Congress: conservatives who were wary of the rapid growth of the administrative state and liberals who wanted to protect the ability of agencies to exercise their delegated administrative power. This balance was reflected in the foreword to the compiled legislative history of the APA, in which Senate Judiciary Committee Chairman Pat McCarran stated that although the APA "is brief, it is a comprehensive charger of private liberty and a solemn undertaking of official fairness. It is intended as a guide to him who seeks fair play and equal rights under law, as well as to those invested with executive authority. It upholds law and yet lightens the burden of those in whom the law may impinge."

The petition mechanism, like other elements of the APA, can be contextualized by considering this balancing act between these two main perspectives on the administrative process reforms of the 1930s and 1940s. Many conservatives in Congress who believed that the rapid expansion of the government in the New Deal had the potential to threaten individual rights saw a petition mechanism as a way to provide individuals a means through which they could address grievances directly to government agencies. Some liberals in Congress who were generally more trusting of regulatory agencies and wanted to protect recently enacted New Deal programs were willing to agree to a petition mechanism, but they were cautious about how much would be required of agencies to respond. The petition provision that was ultimately included in the final version of the APA can be seen as a compromise between these two sides and is discussed in detail below.

APA Petition Mechanism: Overview and Requirements

Section 553(e) of the APA states, "Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule." Such petitions are sometimes referred to as 553(e) petitions, petitions for rulemaking, petitions for reconsideration, administrative petitions, or citizens' petitions.

Section 553(e) states that the right to petition applies to any "interested person." The Attorney General's Manual on the A dministrative P rocedure A ct , which was published in 1947 and provides the executive branch's interpretation of the APA, states that the right to petition "must be accorded to any 'interested person'" and that "it will be proper for an agency to limit this right to persons whose interests are or will be affected by the issuance, amendment or repeal of a rule."

The scope of agency actions that are covered by the right to petition is wide-ranging. The APA's definition of rule is broad and covers a variety of agency actions, including several types of actions that are not subject to the APA's notice-and-comment rulemaking procedures. Such actions include agency interpretive rules and policy statementsâcategories that are often colloquially referred to as "guidance documents"âand rules of agency organization, procedure, and practice. Thus, the petition mechanism could potentially be used for more than just rules that have undergone, or would be required to undergo, the APA's notice-and-comment procedures.

Interaction with APA Rulemaking Procedures

If an agency grants a petition requesting that it issue, amend, or repeal a rule, any relevant procedural requirements for rulemaking or other type of action would still apply. The Attorney General's Manual states, "If the agency is inclined to grant the petition, the nature of the proposed rule would determine whether public rule making proceedings under section 4(a) and (b) are required." In other words, a rulemaking action is not subject to, or exempt from, any procedural requirements as a result of the action having been taken pursuant to a petition under the APAâit does not provide an alternative means for an agency to take an action without going through otherwise-required procedures. Rather, the granting of the petition merely serves as a starting point for the agency to take an action. If the nature of the action requires notice-and-comment rulemaking, for example, the agency must still engage in those procedures.

In any action an agency chooses to take pursuant to a petition, the agency may act only within the delegated authority that Congress has provided to it in statute. A petition can serve only as a procedural mechanism that could cause or encourage an agency to take action under its established authority.

Agency Consideration and Response to Petitions

Although Section 553(e) is only one sentence in length and provides very little detail, other sections of the APA contain some additional requirements for agencies with regard to receiving, considering, and responding to matters presented to them, including rulemaking petitions. Those requirements are discussed below. Notably, however, agencies have a great deal of discretion in determining the specifics of their procedures for receiving, considering, and responding to petitions.

Submission and Consideration of Petitions

Whereas the constitutional right to petition under the First Amendment does not require the government to consider or respond to a petitionâas described by one scholar, "it is little more than the right to make a clamor" âthe legislative history of the APA's petition mechanism stated that Congress did not intend for agencies to consider petitions "in a merely pro forma manner." Furthermore, the legislative history states that "where such petitions are made, the agency must fully and promptly consider them." Thus, the APA's legislative history suggests that agencies are minimally required to consider rulemaking petitions and arguably to do so in a timely manner.

The text of the APA itself provides little information, however, on how agencies are to consider petitions, thus leaving quite a bit of discretion regarding the process and elements of agencies' consideration of petitions. The Attorney General's Manual states that agencies

should establish, and publish â¦ procedural rules governing the receipt, consideration and disposition of petitions filed pursuant to section 4(d) [of the APA]. These procedural rules may call, for example, for a statement of the rulemaking action which the petitioner seeks, together with any data available in support of his petition, a declaration of the petitioner's interest in the proposed action, and compliance with reasonable formal requirements.

Agency Procedures for Consideration of Petitions

Several agencies have established such requirements for the submission of petitions. For example, the Food and Drug Administration (FDA) has issued regulations requiring certain petitioners to submit four copies of a petition, sign the petition, and include information referenced in the petition as applicable, among other things. Under those same regulations, the FDA commissioner must follow certain procedures and consider specified criteria when making a decision on whether to grant a petition, such as whether the petition is in the public interest and is being pursued in good faith.

On the contrary, some agencies have not established additional requirements for petitioners and merely have the minimal requirements of the APA as a basis for their petition process. For example, the Securities and Exchange Commission provides an address for petitions and asks petitioners to "set forth the text of any proposed rule or amendment" or "specify the rule the repeal of which is sought" but requires little else of petitioners explicitly in its regulations.

In some cases, agencies publish a notice in the Federal Register acknowledging receipt of a petition and asking for public comment as part of its consideration process. For example, in June 2017, the Department of Transportation's Federal Motor Carrier Safety Administration (FMCSA) issued a notice stating, "In response to petitions for reconsideration of the final rule on lease and interchange of passenger-carrying commercial motor vehicles (CMVs) published on May 27, 2015, and effective on July 27, 2015, FMCSA intends to revise the regulations to address 'chartering' (subcontracting) and the 48-hour delay in preparing a lease. FMCSA is requesting public comment on the proposed responses to the petitions discussed below." This public input would not substitute for the notice-and-comment rulemaking requirements of the APA if the agency decides to grant a petition, but it could assist the agency in gauging public interest and could provide information to assist the agency in its decision.

ACUS Recommendations on Consideration of Petitions

In 2014, the Administrative Conference of the United States (ACUS) reported that "few agencies have in place official procedures for accepting, processing, and responding to petitions for rulemaking" and that "how petitions are received and treated varies acrossâand even withinâagencies." ACUS issued several recommendations related to petitions for rulemaking, including some that addressed the consideration of petitions. The recommendations stated that, for example, "Each agency that has rulemaking authority should have procedures, embodied in a written and publicly available policy statement or procedural rule, explaining how the agency receives, processes, and responds to petitions" and that "the procedures should indicate how the agency will coordinate the consideration of petitions with other processes and activities used to determine agency priorities, such as the Unified Agenda and retrospective review of existing rules." ACUS also recommended that "the procedures should explain what type of data, argumentation, and other information make a petition more useful and easier for the agency to evaluate." Such information could be of assistance to petitioners as they are preparing to petition agencies.

The APA requires that agencies respond to petitions in a timely manner. Specifically, Section 555(b) states that "with due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it." This provision has generally been interpreted to apply to a number of potential matters brought to an agency, including petitions for rulemaking: "Citing various combinations of Â§Â§ 553(e), 555(b), and 555(e), courts have repeatedly found that agencies must at least 'respond' to petitions for rulemaking."

Furthermore, the APA appears to require that if the response to a petition is a denial, the agency must provide a reason for the denial. Section 555(e) states that "prompt notice shall be given of the denial in whole or in part of a written application, petition, or other request of an interested person made in connection with any agency proceeding. Except in affirming a prior denial or when the denial is self-explanatory, the notice shall be accompanied by a brief statement of the grounds for denial." Although these provisions appear to establish a requirement for the agency to provide a timely response and a reason for denial, the APA does not further explicate what a response might or should entail.

Presumably, if an agency grants a petition, the agency would conduct any procedural requirements that may apply (such as if the petition requested the agency to issue a rule subject to the APA's notice-and-comment requirements). Simply receiving a petition, however, does not require the agency to grant a petitioner's request. The legislative history of the APA states that agencies have several options in responding to petitions, including denial: "The agency may either grant the petition, undertake public rulemaking proceedings as provided by subsections (a) and (b) of this section, or deny the petition." The Attorney General's Manual appears to express a similar view: "the mere filing of a petition does not require the agency to grant it or to hold a hearing or to engage in any other public rule making proceedings." Thus, it appears that the agency is not necessarily obligated to grant any petition, but it must meet the minimum requirements of receiving the petition and responding to it in a timely manner.

ACUS Recommendations on Agency Responses to Petitions

The ACUS recommendations mentioned above also addressed agencies' responses to petitions, stating that agencies "should provide a reasoned explanation beyond a brief statement of the grounds for denial" and "should not reflexively cite only resource constraints or competing priorities." Furthermore, ACUS recommended that agencies should adopt in their procedures "an expectation that it will respond to all petitions for rulemaking within a stated period (e.g., within 6, 12, or 18 months of submission)," "[e]stablish and make publicly available an individual target timeline for responding to that petition," and "provide the petitioner and the public with a brief explanation for the delay, along with a reasonable new target timeline," if the target cannot be met.

An agency's denial of a petition may also be subject to judicial review. Section 706(2) of the APA states that courts can review and set aside final agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Section 555's requirement for the agency to give notice of the denial of a petition and to generally accompany the denial with a "brief statement of the grounds for denial" has, at times, been interpreted in combination with Section 706(2) of the APA to require the agency to issue a rational (but potentially brief) explanation for a denial of a petition. In some instances, courts have found agencies' denials of petitions to be in violation of the APA. Frequently when this has occurred, courts have remanded the denial to the agency to reconsider the petition.

Potential Benefits of Rulemaking Petitions

Rulemaking petitions have several potential benefits, such as that they can provide additional, low-cost opportunities for public participation in federal rulemaking. The subsections below identify and discuss several potential benefits of rulemaking petitions. However, as discussed in the last subsection below, responding to rulemaking petitions could potentially require agencies to allocate resources they would otherwise use elsewhere.

The primary benefit is arguably the opportunity for stakeholders and interested persons to engage directly in a significant type of federal policymaking. Federal rulemaking is the means through which most federal statutes and programs are implemented, and public participation in that process has been an essential component since the APA was enacted in 1946. The benefits of public participation could flow in both directions: Non-agency parties have a chance to make their views known to agencies, and agencies could learn from petitioners about the impacts of their rulesâpreviously issued or not-yet-issuedâby obtaining additional information or perspectives they may not otherwise consider. One study of the use of petitions for rulemaking under the Endangered Species Act found that outside groups petitioning the Fish and Wildlife Service provided useful information for identifying species that are "at least as deserving of protection under the Act as species identified by the agency on its own," further concluding that "these public participation tools might have an important role to play in collecting dispersed or diffuse information to help better inform agency decisionmaking."

The rulemaking petition process provides an arguably more democratic, widely available opportunity for public access by individuals and entities who may not otherwise have an opportunity to challenge agency rules through the courts by seeking judicial review. Filing a petition with a federal agency under the APA or another statutory petition mechanism is likely to be less costly financially and resource-wise than the potential cost of litigation.

Potential for Compelling an Agency to Act

Petitions for rulemaking can potentially serve as a mechanism to try to force an agency to issue a rule through a court challenge: On occasion, rulemaking petitions that were denied and challenged have led to court orders for the issuance of a rule. For example, in 1999, a group of stakeholders petitioned the Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from new motor vehicles under its Clean Air Act regulatory authority. EPA took comments on the petition and published notice in 2003 that it was denying the petition. After a judicial challenge to the denial of the petition, in 2007, the Supreme Court held that EPA's reasons for denial of the petition were invalid and that EPA did have the authority to regulate greenhouse gas emissions under the Clean Air Act. The Court determined that, under the Clean Air Act, EPA must make a determination on the merits of whether to regulate greenhouse gas emissions or provide a reasonable explanation why it cannot or will not make that decision.

Potential Intersection with Retrospective Review of Regulations and Regulatory Budgeting

Rulemaking petitions can also encourage agencies to review or eliminate specific regulations that are outdated, ineffective, or overly burdensome. Administrations going back at least to the 1970s have required agencies to engage in retrospective regulatory review. The Trump Administration has taken that requirement a step further with its "one-in-two-out" regulatory requirement, which requires agencies to identify offsetting costs from at least two rules for every rule that imposes new costs. Rulemaking petitions could provide an information mechanism for agencies to comply with these requirements: Outside parties could help identify regulations or portions of regulations that are ripe for revision or elimination.

Increase in Public Legitimacy of Agency Rulemaking

Additionally, by allowing for participation in addition to the notice-and-comment requirements of the APA, agencies could potentially increase their public legitimacyâeither for a particular regulation or as a more general matter. The APA's legislative history acknowledges a potential "public relations" improvement for agencies that use petitions, stating that petitions "should be a most useful instrument of both improving the public relations of administrative agencies and protecting the public by affording interested persons a legal and regulatory means of securing the issuance, change, or rescission of a rule." An announcement in the Federal Register that an agency is considering granting a petition could serve as a notification similar to an advance notice of proposed rulemaking (ANPRM), which is another mechanism for early public participation in the rulemaking process. Such a notice could indicate, even in highly tentative terms, the type of action being considered by the agency and invite public input.

Potential Disadvantages for Rulemaking Petitions

Nonetheless, considering and responding to rulemaking petitions can be time- and resource-intensive for agencies. In 2013, the Nuclear Regulatory Commission (NRC) published a proposed rule to amend its procedures for receiving and considering petitions. In the document, the agency cited an increase in the number of rulemaking petitions it had received recently, stating that this "presented a significant resource challenge to the NRC." Such allocation of resources could cause delays in other activities at an agency, such as issuing other regulations. The use of resources to respond to a petition varies widely depending on the nature and content of the petition, however.

The effectiveness of, and timing of response to, a petition for rulemaking likely depends on many factors, including the quality and nature of the arguments presented, the policy preferences of the agency and the Administration, any statutory requirements or constraints the agency faces, the evidence available to the agency and its ability to justify taking any particular action, and whatever preferences the agency and Administration may have for prioritization of resources at the agency.

Many of these factors are outside of the control of a petitioner, but there are certain steps a petitioner might take to make a stronger case to the agency. Some outside groups have offered advice to the public for how to petition agencies more effectively. For example, the Center for Effective Government suggested that a petition for rulemaking should include information such as an explanation of the proposed action; the language the petitioner would like to propose for a new or amended rule or eliminate from a rule; information and arguments that support the petitioner's proposed action, including relevant technical and scientific data; specific facts or circumstances that support the proposed action; and relevant legal information about any specific laws or statutory provisions that is relevant to the petition and the rule in question.

Individual agencies may provide guidance, or even requirements, for petitioners on their websites or in their regulations. For example, some of the suggestions provided by the Center for Effective Government above are from the Federal Aviation Administration's (FAA) regulations and guidance, which are on its website. Similarly, the NRC has regulations and detailed information on its website on how to submit petitions, as well as information tracking petitions that have been submitted to it, including visual information on the number and status of the petitions that have been submitted.

As noted above, however, ACUS found in 2014 that few agencies had established official procedures for receiving, considering, and responding to petitions. As such, guidance may not necessarily be available for any particular agency's expectations or requirements. In such circumstances, general guidelines, such as those referred to above from the Center for Effective Government, may be useful.

Other Statutory Authorities for Petitions for Rulemaking

In addition to the APA petition mechanism, Congress has enacted various criteria for specific agencies' decisionmaking processes. Generally, these additional statutory mechanisms appear to build upon the 553(e) petition mechanism. A comprehensive list of all such provisions is beyond the scope of this report, but some examples include the following:

The Fixing America's Surface Transportation Act required FMCSA to publish on a publicly accessible website a summary of all petitions for regulatory action submitted to FMCSA; "prioritize the petitions submitted based on the likelihood of safety improvements resulting from the regulatory action requested;" respond to each petition within 180 days of posting the summary; prioritize responses to petitions consistent with a petition's potential to reduce crashes, improve enforcement, and reduce unnecessary burdens; and keep an updated inventory of the petitions on its website. The Endangered Species Act states, "To the maximum extent practicable, within 90 days after receiving the petition of an interested person under section 553(e) of title 5, to add a species to, or to remove a species from, either of the lists published under subsection (c), the Secretary [of the Interior] shall make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. If such a petition is found to present such information, the Secretary shall promptly commence a review of the status of the species concerned. The Secretary shall promptly publish each finding made under this subparagraph in the Federal Register." The Food, Drug, and Cosmetic Act contains requirements for the Secretary of Health and Human Services and for individuals petitioning the agency for a regulation on food additives. The statute lists information the petitions shall include, such as detailed scientific information about the additive and "full reports of investigations made with respect to the safety for use of such additive, including full information as to the methods and controls used in conducting such investigations." It also requires a petition to respond to requests from the Secretary for additional information and further requires the Secretary to publish notice of the regulation proposed by the petitioner.


Department of Veterans Affairs: Caregiver Support

Summary: The conflicts in Iraq and Afghanistan have presented a new challenge for the United States as servicemembers returned from combat with serious injuries that may have been fatal in previous conflicts. These servicemembers require ongoing personal care services, which are often provided by family members and loved ones. In recognition of this significant challenge, Congress enacted the Caregivers and Veterans Omnibus Health Services Act of 2010 ( P.L. 111-163 ), which required the Department of Veterans Affairs (VA) to establish specific supports for caregivers of veterans.

Summary: The Veterans Health Administration (VHA), within VA, offers caregiver support through two programs that were established by the act:

Summary: a Program of General Caregiver Support Services ( general caregivers program ); and a Program of Comprehensive Assistance for Family Caregivers ( family caregiver s program ).

Summary: The general caregivers program offers a basic level of support, such as education and training, to caregivers of veterans of all eras enrolled in VA health care. The family caregivers program offers comprehensive supports, such as health care benefits and a monthly stipend, to caregivers of veterans who were seriously injured in the line of duty on or after September 11, 2001 (post-9/11 veterans). VA refers to these two programs collectively as the Caregiver Support Program.

Summary: The general caregivers program does not have an application or eligibility determination process. The limited services provided under this program are, generally, available to all caregivers of veterans enrolled in VA health care. Veterans and caregivers who apply for the family caregivers program undergo a multistep eligibility determination process that includes an initial assessment, education, training, and an in-home assessment. VA determines both administrative and clinical eligibility of veterans and caregivers. Caregivers who are eligible and designated as a family caregiver receive a unique suite of comprehensive services and benefits to help them provide care to the veteran.

Summary: The VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act of 2018 (VA MISSION Act; P.L. 115-182 , as amended) required VA to expand eligibility for the family caregivers program to caregivers of veterans of all eras. Expansion is being implemented in two phases, as required by the VA MISSION Act. Veterans who were seriously injured in the line of duty before May 7, 1975, are to become eligible first. Two years later, veterans who served and were injured in the line of duty between May 7, 1975, and September 11, 2001, are to become eligible for the program.

Summary: This expansion, which has yet to go into effect, is expected to generate a large increase in enrollment and may lead to changes to the underlying structure of the family caregivers program due to a large increase in the number of eligible individuals. Unlike the population currently eligible for the program, this newly eligible population comprises older individuals who may have different disabling conditions that require personal care assistance, which may present a challenge to eligibility determination based on an injury in the line of duty.

Summary: Eligibility expansion is contingent on the implementation and certification of a functioning information technology (IT) system required to fully support the program. The VA MISSION Act required that VA complete certification of a system by October 1, 2019. VA did not meet that deadline and has not yet certified an IT system.

Summary: VA published a proposed rule to implement the changes required under the VA MISSION Act on March 6, 2020. The public comment period for the proposed rule ends on May 5, 2020.

Summary: This report provides an overview of the VA Caregiver Support Program, including

Summary: eligibility criteria that veterans and caregivers must meet to qualify for both the family caregivers program and the general caregivers program; a catalogue of the services and benefits provided under the two programs; and current issues related to implementation of modifications under the VA MISSION Act.

Summary: The Appendix provides background on the program evolution and a legislative history of the program.

The Department of Veterans Affairs (VA) Caregiver Support Program was born from a new challenge facing veterans returning from recent conflicts. The conflicts in Afghanistan and Iraq (Operation Enduring Freedom, Operation Iraqi Freedom, and subsequent operations, hereinafter referred to as OEF/OIF ) led to a growing number of seriously disabled veterans, many of whom require extended care for the remainder of their lives. Some of those seriously injured while serving in these conflicts survived with injuries that would have been fatal in previous conflicts. In the Vietnam Era, five out of every eight seriously injured servicemembers survived. In OEF/OIF, seven out of eight seriously injured servicemembers survived.

Seriously injured servicemembers returning from OEF/OIF conflicts often sustained polytraumatic injuries requiring medically complex care, intensive rehabilitation, and extended or long-term care. Such injuries can include physical injuries (e.g., traumatic brain injuries, amputations, serious burns, spinal cord injuries, and blindness), as well as mental health issues (e.g., posttraumatic stress disorder [PTSD], anxiety, and depression). These types of injuries often have lasting implications for the Department of Defense (DOD) and VA health care and disability systems.

Researchers found that family members and close friends to veterans often shouldered much of the burden in the rehabilitation of returning veterans. Family members and friends relocated for extended periods of time while veterans received treatment in hospital settings. Moreover, family and friends often left jobs to act as caregivers for veterans.

In recognition of this significant challenge to families, Congress enacted the Caregivers and Veterans Omnibus Health Services Act of 2010 ( P.L. 111-163 ), which required VA to establish specific supports for caregivers of veterans. The Veterans Health Administration (VHA), within VA, offers caregiver support through two programs established by the act:

a Program of General Caregiver Support Services (general caregivers program) ; and a Program of Comprehensive Assistance for Family Caregivers ( family caregivers program ).

The general caregivers program offers a basic level of support, such as education and training, to caregivers of veterans of all eras enrolled in VA health care. The family caregivers program offers comprehensive supports, such as health care benefits and a monthly stipend, to caregivers of veterans who were seriously injured in the line of duty on or after September 11, 2001. VA refers to these two programs collectively as the Caregiver Support Program.

The Caregiver Support Program is distinct from other VA programs in that the beneficiary is a nonveteran with some relationship to a living veteran. VA services and benefits are typically provided only to veterans. (VA does provide some services and benefits to families of deceased veterans, with a few exceptions. ) Generally, caregiver services and benefits are available to caregivers only while the veteran receiving care is living.

After many years of advocacy from veterans organizations, among others, the VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act of 2018 (VA MISSION Act; P.L. 115-182 , as amended) was enacted. It required VA to expand eligibility for supports under the family caregivers program to caregivers of veterans of all eras. Expansion is being implemented in two phases, as required by the VA MISSION Act. Veterans who were seriously injured in the line of duty before May 7, 1975, are to become eligible first. Two years later, veterans who served and were injured in the line of duty between May 7, 1975, and September 11, 2001, are to become eligible for the program.

This expansion, which has yet to go into effect, is expected to generate a large increase in enrollment and may lead to changes to the underlying structure of the family caregivers program due to a large increase in the number of eligible individuals. Unlike the population currently eligible for the program, this newly eligible population is older and may have different disabling conditions that require personal care assistance, characteristics that may present a challenge to determining eligibility based on an injury in the line of duty. (See the text box "Proposed Rule Published on March 6, 2020" for information on a proposed rule to implement requirements under the VA MISSION Act.)

Title I of the Caregivers and Veterans Omnibus Health Services Act of 2010 ( P.L. 111-163 ) includes programs and services to provide support to caregivers of veterans. Specifically, the act amends Title 38, Chapter 17, Subchapter II of the United States Code (U.S.C.) by establishing two programs to assist family caregivers. The first is a Program of Comprehensive Assistance for Family Caregivers, for caregivers of eligible veterans who incurred a serious injury in the line of duty while actively serving in the military on or after September 11, 2001 (referred to as the as the family caregivers program in this report). The second is a Program of General Caregiver Support Services, for caregivers of covered veterans of all eras enrolled in the VA health care system (referred to as the general caregivers program in this report). VA refers to the two programs together as the Caregiver Support Program. The Appendix provides a legislative history of the Caregiver Support Program.

Title I of the act also amends Title 38 of the U.S.C. to provide the following services: (1) medical care to certain primary family caregivers; (2) counseling and mental health services to certain family caregivers and other caregivers; and (3) lodging and subsistence for attendants who travel with veterans for medical treatment, regardless of whether they require an attendant for such travel.

The VA MISSION Act required VA to add additional services to the family caregivers program, to implement a new information technology (IT) system to support the family caregivers program, and to expand eligibility for the program to caregivers of veterans of all eras.

Caregiver Designations and Eligibility for Support

Title I of the Caregivers and Veterans Omnibus Health Services Act of 2010 ( P.L. 111-163 ) creates two caregiver designations: general caregiver and family caregiver. Within the family caregiver designation, the act established a primary designation. VA refers to individuals not designated primary as secondary family caregivers. Multiple individuals can be designated as a family caregiver for one veteran, hence the primary and secondary designations. Both primary and secondary family caregivers are provided supports through the family caregivers program. General caregivers are provided supports through the general caregivers program. Caregiver designation is conferred based on both the veteran's and the caregiver's eligibility for either of the two programs. Figure 1 shows these caregiver designations under the appropriate VA program.

Eligibility for the General Caregivers Program

The general caregivers program does not have a formal application process. Likewise, VA does not require a clinical evaluation to obtain benefits through the general caregivers program. A general caregiver may not be a primary or secondary family caregiver, as designated under the family caregivers program, and must provide personal care services to a veteran who is enrolled in the VA health care system and is either

unable to perform an activity of daily living (ADL), or in need of supervision or protection based on symptoms or residuals of neurological or other impairment or injury (supervision or protection).

The veteran's general caregiver is not required to reside with the veteran.

To receive services under the general caregivers program, the veteran or the caregiver must contact a local VA medical center. The caregiver is identified in the veteran's medical record for the purpose of care coordination. VA health care providers are required to recognize the caregiver as a collaborative partner in the care of the veteran.

Eligibility for the Family Caregivers Program

The family caregivers program requires veterans and their caregivers to undergo an eligibility determination process before conferring caregiver designation under the program. Individuals who wish to be designated by VA as primary or secondary family caregivers must complete and sign a joint application with the veteran. Figure 2 describes the eligibility requirements that veterans and caregivers must meet before submitting an application, and the process used to determine eligibility after the application is submitted.

To qualify for the family caregivers program, an individual must first either (1) meet the statutory definition of a veteran , meaning an individual who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable, or (2) be a servicemember who has been issued a date of medical discharge from the military.

Since the inception of the family caregivers program, the basis of veteran eligibility has been a serious injury incurred in the line of duty on or after September 11, 2001. As such, veterans eligible for this program are referred to as post-9/11 veterans. (See the " Issues for Congress " section for information on eligibility for pre-9/11 veterans.) In addition to this post-9/11 requirement, the veteran must have been in need of personal care services for a minimum of six continuous months due to either of the following clinical criteria:

an inability to perform one or more activities of daily living (ADL), or a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury (supervision or protection).

In addition to those criteria, the veteran's primary care team must determine clinically that it is in the best interest of the veteran to participate in the program. The veteran cannot receive personal care services simultaneously and regularly by another individual or entity who is not the family caregiver. The veteran must agree to receive care at home from the family caregiver and to receive ongoing care from a primary care team after VA designates a family caregiver.

The following section describes the ADLs recognized by VA for the purpose of establishing eligibility for the family caregivers program. The section below that one describes the VA-recognized reasons why a veteran may need supervision or protection; these reasons are based on symptoms or residuals of neurological or other impairment or injury.

VA considers the following seven ADLs when determining a veteran's eligibility for the family caregiver program:

1. Eating. The ability to feed oneself. Specifically, the process of eating, chewing, and swallowing. This does not include preparing food. 2. Grooming. The ability to safely tend to personal hygiene needs. 3. Bathing. The ability to wash the entire body safely. 4. Dressing and u ndressing. The ability to dress and/or undress the upper and lower body with or without dressing aids. 5. Toileting. The ability to maintain perineal hygiene and adjust clothing before and/or after using the toilet or bedpan; the ability to manage an ostomy, including cleaning the area around stoma but not managing equipment; or ability to manage urinary catheter or urinal. 6. Prosthetic a djustment. The ability to adjust special prosthetic or orthopedic appliances without assistance. The adjustment of appliances that any person (with or without a disability) would need assistance with should not be scored (e.g., supports, belts, lacing at back). 7. Mobility. The ability to transfer safely from bed to chair and/or chair to toilet, the ability to turn and position self in bed, the ability to walk safely on a variety of surfaces, and the ability to go upstairs.

The inability to perform any one of these ADLs for a minimum of six continuous months is a qualifying factor for enrollment in the program.

The VA also tracks a veteran's ability to perform instrumental activities of daily living (IADLs). However, IADLs are not considered in the eligibility determination process.

Eligibility Based on Supervision or Protection

VA recognizes seven reasons that a veteran may need supervision or protection under this clinical criterion:

1. Seizures . The veteran is unable to manage seizures independently. 2. Planning and o rganizing. The veteran has difficulty planning and organizing daily tasks, appointments, and medication regiments. 3. Safety. The veteran is unable to maintain safety with self and others. This may include a risk of falling or wandering. 4. Sleep. The veteran has difficulty regulating sleep without intervention. 5. Delusions/ h allucinations. The veteran is unable to maintain safe behavior in response to delusions (irrational beliefs) or hallucinations (serious disturbances in perception). 6. Impairment of r ecent m emory. The veteran has difficulty remembering recent events and learning new information. 7. Affective/ b ehavioral d ysregulation ( s elf- r egulation) . The veteran is unable to regulate behavior without exhibiting any of the following behaviors: aggressive or combative with self or others, verbally disruptive including yelling, threatening and excessive profanity, impaired decision making, inability to appropriately stop activities, and disruptive, infantile or socially inappropriate behavior.

The need for supervision or protection based on any one of these reasons for a minimum of six continuous months is a qualifying factor for enrollment in the program.

Under the family caregivers program, a caregiver must be at least 18 years of age, and be either a family member or a person who is living with the veteran or will live with the veteran upon approval. An individual is considered a family member if he or she is the eligible veteran's spouse, son, daughter, parent, step-family member, or extended family member.

Although the family caregiver status includes the term family , the individual is not required to have any familial relationship with the veteran. Furthermore, to apply for the family caregivers program, an individual is not required to currently live with the veteran. The individual simply has to certify that he or she will live with the veteran upon approval as a family caregiver.

Applying for the Family Caregivers Program

If a veteran meets the eligibility criteria for the family caregivers program, he or she is encouraged to apply using VA form 10-10CG. The application can either be mailed to the VA Health Eligibility Center or submitted to the caregiver support coordinator at the veteran's local VA medical center. The application asks the veteran to identify up to three family caregiversâone primary family caregiver and two secondary family caregivers.

The qualification requirements are the same for the primary or secondary family caregivers. However, primary family caregivers are provided additional benefits, which are listed in Table 1 .

After receiving the application, VA evaluates eligibility by identifying the veteran's potential qualifying injury and assessing whether it may render the veteran in need of personal care services. Before the approval and designation of family caregiver(s), the applicant undergoes an initial assessment, education, training, and an initial home care assessment.

The entire VA approval process should be completed within 45 calendar days from the date of submission of an application. The 45-day deadline can be extended if a veteran is hospitalized during the application process or if the caregiver has not completed the required education and training.

A VA primary care team initially assesses each caregiver applicant to confirm that he or she is able to complete caregiver education and training. This initial assessment is completed at a VA medical center. The primary goals of this initial assessment are to assess whether the caregiver applicant can (1) communicate and understand details of the specific care needs related to the veteran and (2) follow a specific treatment plan for the veteran.

During this initial assessment, the VA primary care team determines whether the veteran is eligible for the program. The team examines administrative eligibility (i.e., whether the veteran is enrolled in the VA health care system and has a documented serious injury that was incurred or aggravated in the line of duty on or after September 11, 2001) and clinical eligibility (i.e., the veterans need for personal care services). The veteran is assigned to a tier level during the clinical evaluation based on the number of hours of personal care services needed. (See the text box "Centralized Eligibility and Appeals Teams" for information on how VA is implementing centralized teams to change the eligibility determination process.)

During the initial assessment, prospective caregivers are eligible for the Veterans Transportation Service (VTS) program. The VTS provides free transportation services to and from a VA medical center.

Following the initial assessment, VA administers a training program that consists of topics generally applicable to caregivers, as well as topics targeted to the needs of the specific veteran. The training program must cover 10 specific core competencies: medication management, vital signs and pain control, infection control, nutrition, functional activities, activities of daily living, communication and cognition skills, behavior management skills, skin care, and caregiver self-care.

During this education and training process, prospective caregivers are eligible for either VTS or the VA beneficiary travel program, which reimburses travel expenses related to the veteran's medical appointments. The prospective caregiver can be reimbursed for expenses such as the cost of transport, lodging, and meals. In addition, during this period VA provides respite care for the veteran, if necessary. (For information on respite care, see the " Services and Benefits for General Caregivers " section.)

The final step before approval and designation is an initial home care assessment. In this step, a VA clinician or clinical team visits the veteran's home to assess whether the caregiver is competent to provide personal care services and to measure the veteran's well-being.

The clinician or clinical team assesses the veteran's ability to complete ADLs and IADLs, identifies special care needs (e.g., use of a feeding tube), monitors vital signs, looks for signs of abuse or neglect, notes other potential health or safety risks, and screens both the veteran and the caregiver for depression. The clinician or clinical team is not responsible for developing a care plan or for management of the veteran's conditions. However, the clinician or clinical team is responsible for reporting any findings to the veteran's primary care team. The clinician or clinical team can also recommend referrals for follow-up care.

VA requires that this assessment be completed within 10 days of certification that the caregiver completed the requisite education and training curriculum. If the veteran is hospitalized before the assessment is conducted, VA must conduct the assessment within 10 days from the date the veteran returns home.

If the veteran and his or her caregiver(s) are deemed eligible following the initial home care assessment, VA will approve the application and designate the primary and/or secondary family caregivers. Approval of one caregiver is not contingent on the approval of other caregivers listed on the application. For instance, if a veteran designates two caregivers, but only one of the two completed the required training, VA may still approve the individual who completed the training.

VA informs veterans and caregivers deemed ineligible of their ability to appeal the decision. Appeals may be filed at either the local VA facility or at the VISN level.

Ongoing Monitoring and Revocation of Caregiver Status

Veterans and family caregivers are subject to ongoing monitoring while enrolled in the family caregivers program. VA requires ongoing assessments every 90 days. Assessments can be completed in-person, through video telehealth, or by phone, as well as with an annual in-home visit. The annual visit must be completed in the veteran's home. The purpose of ongoing monitoring is to monitor the veteran's overall health and well-being and adequacy of the personal care services provided by the family caregiver.

Caregiver status can be revoked immediately if VA determines that the caregiver or the veteran no longer meet eligibility criteria, or if VA makes a clinical determination that having the family caregiver is no longer in the best interest of the veteran. If the family caregiver designation is revoked because the veteran's condition improvesâor as the result of the veteran's death or institutionalizationâthe caregiver will continue to receive benefits for 90 days following the loss of the caregiver designation.

The family caregiver or the veteran can request that the caregiver designation be revoked. If requested by the caregiver, benefits will terminate immediately upon the date that the caregiver requests revocation. If requested by the veteran, the caregiver will continue to receive benefits for 30 days. If the caregiver whose status is being revoked was a primary family caregiver and another primary family caregiver is designated within 30 days, the revoked caregiver's benefits will terminate the day before the new family caregiver is designated as such.

Services and Benefits Available to Caregivers

Table 1 lists the services and benefits available under the two caregiver support programs (i.e., the Program of General Caregiver Support Services and the Program of Comprehensive Assistance for Family Caregivers). The table also details which of the three categories of caregiver status (i.e., general caregiver, secondary family caregiver, or primary family caregiver) are eligible for the specific service or benefit. The general caregiver category, which confers the least services and benefits, is presented first; followed by the primary family caregiver category, which confers the most services and benefits. In developing Table 1 , CRS consulted Title 38 of the Code of Fe deral Regulations (38 C.F.R. Â§Â§71.40 and 71.50), as well as publicly available VHA Directive 1152(1). A detailed description of each service and benefit appears below the table.

Services and Benefits for General Caregivers

As shown in Table 1 , the general caregivers are eligible for various services and benefits: limited to access to the VA caregiver support line; peer mentoring; education, training, and technical support; telehealth; counseling; and respite care. These services and benefits are detailed below.

The caregiver support line is available to general and family caregivers, as well as to any individual who calls to learn more about offered services and eligibility. The support line serves as a resource referral center for individuals seeking caregiver information, provides referrals to local VA medical center caregiver support coordinators and other VA or community resources, and provides emotional support to callers.

The caregiver support line also hosts monthly education calls for caregivers. An individual must be a caregiver of a veteran enrolled in VA health care, and participants must register for the call in advance. This optional benefit includes courses on managing difficult behavior, self-care, and other topics.

The peer support mentoring program facilitates a mentor/mentee relationship between caregivers. Caregivers can join the program as both mentors and mentees. Mentors receive training and are considered volunteers by VA. This program generally asks mentees to commit to a minimum of six months of mentoring. However, VA also offers one-time connections for caregivers who cannot commit to long-term mentoring but who may need brief support.

VA offers a variety of education, training , and t echnical s upport , which includes specific programs such as the Building Better Caregivers program and REACH VA, as well as online tools to assist in caregiving duties. This is separate and distinct from the required training that family caregivers must participate in to qualify under the family caregivers program.

Building Better Caregivers is an online workshop that offers weekly lessons, guidance, group support, and access to an alumni community for graduates of the program. The workshops are anonymous to facilitate open communication among caregivers.

REACH VA is an individual coaching program for caregivers designed to help them build skills to take care of themselves and the veterans for whom they are providing personal care services. This program, unlike others available to general caregivers, is available only to caregivers of veterans diagnosed with amyotrophic lateral sclerosis (ALS), dementia, multiple sclerosis (MS), PTSD, or spinal cord injury/disorder. Coaches generally provide four individual hour-long coaching sessions over a period of two to three months. Additional sessions can be provided if the caregiver and coach believe that they will be beneficial.

Telehealth services are provided directly to the veteran. However, they are an indirect benefit to the caregiver, because they allow the veteran to receive medical services without needing a caregiver's assistance in transporting the veteran to medical appointments. Caregivers are able to access VA mobile applications, such as MyHealtheVet , which allows them to view electronic health records, reorder medication, and contact health care providers via secure messaging, among other things.

The counseling services provided to general caregivers include consultation, professional counseling, marriage and family counseling, training, and mental health services. However, these services are available only if a veteran's medical team determines that the service is "in connection with the treatment" of a veteran's disability. In other words, the counseling services may be authorized only if they further the objectives of a veteran's treatment plan. For instance, marriage and family counseling may be provided only if it is intended to address the veteran's mental health. VA clinicians are authorized to refer caregivers to the community for counseling when it is not related to the veteran's treatment.

Veterans are eligible for 30 days of respite care per calendar year, in general. Respite care is short-term relief for the caregiver, in which another individual acts as the primary caregiver. This care can be provided in an institutional setting or as 24-hour per day in-home care. The respite care must be medically and age-appropriate. Respite care can be provided at the home, in a VA community Living Center, through a contracted community skilled nursing home, or through a VA adult day care program.

Services and Benefits for Secondary Family Caregivers

Secondary family caregivers are eligible for the same suite of benefits as general caregivers. In addition, veterans under the family caregivers program receive primary care team support and monitoring. Secondary family caregivers receive more comprehensive mental health services and travel reimbursement (described below).

Unlike the counseling services provided to general caregivers, secondary family caregivers can receive mental health services regardless of the medical benefit to the veteran. These services can be provided with the health of the caregiver in mind rather than treatment of the veteran. Services include individual and group therapy, individual counseling, and peer support groups. Mental health services are limited to outpatient care and do not include medication or medication management.

Secondary family caregivers are eligible for travel reimbursement through the VA Beneficiary Travel program when travel is related to the veteran's medical treatment. Reimbursement is not provided when travel is related solely to the treatment of the caregiver (e.g., travel to a VA medical center for mental health services). To receive travel reimbursement, the veteran must be eligible for the program. If eligible, reimbursement includes expenses for lodging and meals, as well as for travel to and from medical appointments.

Services and Benefits for Primary Family Caregivers

Primary family caregivers are eligible for all of the benefits available to both general caregivers and secondary family caregivers. In addition to those benefits, primary family caregivers are eligible to receive health care through the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA) and to receive a monthly stipend based on the number of hours of personal care services that a veteran requires.

Enrollment in the family caregivers program does not confer eligibility for h ealth care services to all primary family caregivers. Individuals must meet additional criteria to be eligible for enrollment in CHAMPVA. Specifically, caregivers must be unable to access any other form of health plan contract, such as health insurance or a state health plan. Distinct from VA health care provided to enrolled veterans, CHAMPVA is primarily a health insurance program where individuals receive care from private sector health care providers.

In the clinical determination process during the initial assessment, VA assigns veterans to one of three tier levels based on the amount of hours of personal care service required:

Tier 1. A maximum of 10 hours of caregiver assistance per week. Tier 2. A maximum of 25 hours of caregiver assistance per week. Tier 3. A maximum of 40 hours of caregiver assistance per week.

The tier level is used to calculate monthly stipend levels for primary family caregivers. VA determines the monthly value of the stipend by multiplying the hours corresponding to the assigned tier level by the hourly wage for a home health aide, then multiplying the result by 4.35 weeks (the average number of weeks in a month, according to VA). VA uses the 75 th percentile hourly wage index for a home health aide for the geographic region in which the veteran and caregiver reside, as determined by the Bureau of Labor Services (see the text box "Caregiver Stipend Formula" for the stipend formula).

The monthly stipend varies based on the assigned tier level and the geographic region in which the veteran and caregiver reside. The 75 th percentile hourly wage for home health aides ranges from $8.91 in Ponce, PR, to $36.48 in Santa Rosa, CA, with a median nationwide of $13.00. Table 2 provides the average monthly stipend amounts nationwide by tier level.

Despite receiving a stipend, primary family caregivers are not considered VA employees and the stipend is not considered taxable income.

Caregiver Support Program Administration and Funding

This section details the administrative structure of the Caregiver Support Program and provides historical funding for the program. The narrative explaining the administrative structure of the program is largely adapted from the publicly available VHA Directive 1152(1). The funding history is compiled from VA congressional budget submissions.

Caregiver Support Program Administration

The Caregiver Support Program is administered by a central office within VHA. The Caregiver Support Program Office develops national policy and procedures and provides guidance, oversight, and support to regional and local VA staff regarding caregiver support.

Two other VA national offices, the Health Eligibility Center (HEC) and the Office of Community Care, perform significant roles in administration of the Caregiver Support Program. The HEC is responsible for processing applications for the family caregiver program. The Office of Community Care calculates and processes stipend payments for family caregivers and administers enrollment and claims processing for family caregivers in CHAMPVA.

Regionally, each VISN ensures that every medical center within the VISN employs at least one full-time equivalent Caregiver Support Coordinator and that the program is operated consistently across the VISN. The VISN also maintains a process for appeals related to clinical disputes, which includes independent external review. The VISN employs a clinical staff member as a VISN lead for the Caregiver Support Program.

The VISN lead acts as an intermediary between the central office and the Caregiver Support Coordinators at the local level. The VISN lead provides guidance and support to the Caregiver Support Coordinators within the VISN.

The caregiver support coordinator administers the program locally at each VA medical center. The coordinator is responsible for managing the family caregiver program at the operational level by coordinating the application process, the initial home care assessment, and ongoing monitoring. The individual also acts as an advocate for caregivers and veterans internally by ensuring that services and benefits are available, as well as by creating educational tools and developing programs. VA has mandated that each medical center have at least one full-time equivalent caregiver support coordinator.

VA began reporting actual operating expenditures for the Caregiver Support Program in its annual budget submissions in FY2012. Figure 3 shows actual expenditures for FY2012 through FY2019. Between FY2012 and FY2015âthe first years of implementation of the Caregiver Support Programâexpenditures grew by 41.0% annually. Since FY2015, expenditures for the program have stabilized substantially. Between FY2015 and FY2018, expenditures grew by 2.3% annually. In FY2019, expenditures were lower than anticipated, decreasing by 13% from expenditures in FY2018. VA has indicated that decreasing enrollment in recent years may be due to decreasing application approval rates and increases in revocations for veterans and caregivers who do not meet eligibility requirements.

The monthly stipend for primary family caregivers in the family caregivers program comprises the largest portion of spending under the Caregiver Support Program. In FY2019, for instance, stipend payments totaled approximately $347 million, or 79% of total program expenditures.

Expansion of the family caregiver program to pre-9/11 veterans is expected to significantly increase demand for the program. VA has factored this expected increase into future budget estimates. VA estimates that the program will cost $710 million in FY2020 and nearly $1.2 billion in FY2021.

Title 1 of the VA MISSION Act expands eligibility for the family caregiver program to pre-9/11 veterans in two phases. This expanded eligibility depends on certification of a new information technology (IT) system to administer the program:

Phase 1. Veterans who have a serious injury incurred or aggravated in the line of duty in the active military, naval, or air service on or before May 7, 1975. Phase 2. Two years after certification, the program is to expand to cover veterans of all eras.

Expanding eligibility for the Caregiver Support program raises two potential issues: (1) delays in implementation of an IT system to fully support the system and (2) increased costs associated with eligibility expansion under the act. As program eligibility expands, these issues may be of interest to policymakers.

In addition to these two issues, the program may change in other significant ways when VA modifies the regulations necessary to implement the eligibility expansion. VA published a proposed rule to implement the changes required under the VA MISSION Act on March 6, 2020. The public comment period for the proposed rule ends on May 5, 2020. Furthermore, rulemaking to add the expansion populations must be finalized, at the very least, prior to expansion becoming effective.

IT System Implementation Required for Expansion Is Delayed

The act required VA to implement a new IT system to fully support the family caregiver program by October 1, 2018ânearly four months after the legislation was enacted. The IT system must be able to (1) retrieve the data needed to assess and monitor program and workload trends, (2) manage data for program participation that exceeds VA estimates, and (3) integrate the system with other VHA IT systems.

The act required VA to certify that the system had been implemented no later than October 1, 2019. The first phase of eligibility expansion is to become effective when the IT system is certified. However, VA has not yet certified an IT system.

Prior to enactment of the VA MISSION Act, the IT system used to support the family caregivers program, the Caregiver Application Tracker (CAT), was deemed inadequate. Specifically, limitations with CAT did not grant the Caregiver Support Program office ready access to the workload data needed to monitor the effects of the program on VA medical center resources. VA attempted to add functionality to CAT in a project called CAT Rescue. However, CAT Rescue was terminated in April 2018 after VA reported defects during system testing.

When the VA MISSION Act was enacted, VA was in the midst of replacing CAT with a new IT system, called the Caregivers Tool (CareT). This project began in September 2015. However, VA identified deficiencies in CareT during acceptance testing and terminated the project in February 2019.

In March 2019, VA began a third effort to acquire a replacement system, which is based on an existing commercial product. The new system is referred to as the Caregiver Record Management Application (CARMA).

VA is deploying CARMA in three phases. The first phase replaced CAT with CARMA and was completed in October 2019. The second phase automated stipend processing within CARMA and was completed in January 2020. The third phase is expected to be completed in summer 2020. In this third phase, VA is updating other legacy systems, enabling online application submission, and enhancing reporting functionality (e.g., business analytics tools). VA has indicated that it expects to certify the system at the completion of phase 3 and the first eligibility expansion will occur at that time. Figure 4 illustrates a timeline of VA initiatives designed to replace the current IT system that supports the program and requirements of the VA MISSION Act.

The family caregivers program currently serves approximately 20,000 post-9/11 veterans and their caregivers. When the first phase of expansion begins, to pre-9/11 veterans injured in the line of duty before May 7, 1975, VA projects that approximately 83,000 additional veterans and their caregivers will become eligible for the program. The number of eligible veterans and caregivers would potentially continue to grow when eligibility expands to all pre-9/11 veterans.

The largest cost driver in the family caregivers program is the monthly stipend to family caregivers. In FY2019, stipend payments totaled approximately $347 million, or 79% of total program expenditures. With expansion of the magnitude projected by VA, the number of caregivers receiving monthly stipends will increase. VA estimates that expenditures for the stipend will total $870 million in FY2021 and nearly $1.2 billion in FY2022.

As the program expands, other program components may require additional resources to meet the demand resulting from the increased numbers of eligible veterans and caregivers. For instance, as it is currently structured, the program requires ongoing monitoring in a veteran and caregiver's home. In general, a VA clinical team that includes at least two individuals must visit each home on at least an annual basis. To continue to meet this requirement, VA will likely need to increase staffing levels to conduct similar program monitoring and oversight.

VA requested nearly $1.2 billion in FY2021 (the first full year implementation of phase 1 of the eligibility expansion), a 276% increase from FY2019 (the last full year in which eligibility was available only to post-9/11 veterans). The FY2022 advance appropriation request is $1.5 billion, which represents only a partial year of implementation of phase 2 of the eligibility expansion.

Appendix. Program Evolution and LegislativeÂ History

As military operations in Afghanistan and Iraq progressed, the provision of services and supports to family caregivers of veterans seriously injured in these conflicts moved to the forefront. Family caregiver issues became a focus of the President's Commission on Care for America's Returning Wounded Warriors, established by President G.W. Bush on March 8, 2007. Tasked with providing a comprehensive review of the care provided to injured servicemembers returning from the recent conflicts in Afghanistan and Iraq, the commission issued several recommendations to the President, Congress, DOD, and VA in a final report. Among these recommendations were several DOD and VA recommendations to strengthen family support programs, including providing "families of servicemembers who require long-term personal care with appropriate training and counseling to support them in their new caregiving roles."

VA Advisory Committee on OEF/OIF Veterans and Families

In April 2007, VA established an independent advisory committee to assess the situation of OEF/OIF veterans and families. The committee was tasked with examining existing VA benefits and services and the need for new benefits and services tailored to OEF/OIF veterans. Committee membership included representation from veterans, family members, and caregivers, as well as veteran service organizations and other advocates and specialists. In 2008, the committee issued an interim report with preliminary observations and recommendations that centered around several themes, including family and caregivers. The Advisory Committee's recommendations, among others, were to increase support to families and caregivers. Specifically, the committee's recommendations and findings consisted of three priorities for caregivers: (1) mental health counseling services for those caregiving for severely injured veterans, particularly over a prolonged time period; (2) financial counseling and fiscal support while caring for severely disabled veterans, as well as training programs; and (3) enhanced efforts regarding information and education about available VA benefits and services.

In June 2008, VA established an interdisciplinary Caregiver Advisory Board to develop a caregiver assistance program. The board's chartered activities include identifying core caregiver needs, developing initial recommendations for VA caregiver support services, and overseeing eight caregiver assistance pilot programs. The pilot programs were conceptualized in December 2007 to examine ways to improve education and to provide training and resources for caregivers assisting veterans. Most of the programs focus on supporting caregivers of veterans with specific conditions, such as dementia and traumatic brain injury. These pilot programs were conducted through the end of FY2009.

Caregivers and Veterans Omnibus Health Services Act of 2010

Leading up to enactment of the Caregivers and Veterans Omnibus Health Services Act of 2010 ( P.L. 111-163 ), the 111 th Congress engaged in considerable debate and deliberation about various legislative proposals to assist family caregivers of veterans. The following provides a legislative history of significant proposals to address assistance to family caregivers of veterans and, more specifically, veterans injured in the conflicts in Afghanistan and Iraq. This history begins with legislation first enacted in the 109 th Congress to address greater services and support to family caregivers and ends with passage of the Caregivers and Veterans Omnibus Health Services Act of 2010 in the 111 th Congress.

The initial congressional response to providing assistance to family caregivers of veterans from recent conflicts in Iraq and Afghanistan dates back to the 109 th Congress. On May 4, 2006, S. 2753 was introduced by Senator Daniel Akaka. The bill would have required a VA program to improve the provision of caregiver assistance services for veterans. Although the bill did not necessarily focus on caregiving assistance to veterans serving in recent conflicts, but rather all veterans, in his introductory speech Senator Akaka stated:

With more veterans returning from combat with severely debilitating injuries, young spouses and parents have been forced to take on an unexpected role as caregivers. Many have interrupted their own careers to dedicate time and attention to the care and rehabilitation of loved ones. These caregivers do not plan for this to happen and are not prepared mentally or financially for their new role. Therefore, we must protect, educate, and lend a helping hand to the caregivers who take on the responsibility and costly burden of caring for veterans, both young and old. This legislation serves to provide comprehensive assistance to these caregivers.

Provisions from S. 2753 were included as Section 214 of the Veterans Benefits, Healthcare, and Information Technology Act of 2006 ( P.L. 109-461 ) and enacted on December 22, 2006. P.L. 109-461 authorized VA to conduct a two-year pilot program to improve assistance provided to caregivers, particularly in home-based settings, and authorized $5 million to be appropriated for each of FY2007 and FY2008. The 110 th Congress extended authorization of the caregiver assistance pilot programs through the end of FY2009 under Section 809 of the Veterans' Mental Health and Other Care Improvements Act of 2008 ( P.L. 110-387 ).

Assistance to family caregivers received further legislative attention in the 111 th Congress, with legislative proposals introduced to specifically target caregivers of veterans injured while serving in OEF/OIF. In the Senate, Senator Akaka introduced the Family Caregiver Program Act of 2009 ( S. 801 ) on April 2, 2009. In his introductory remarks, Senator Akaka stated:

Some veterans returning from the recent wars in Iraq and Afghanistan, as well as previous conflicts, suffer from disabilities that prevent them from being fully independent. This is a sad fact of war. The legislation I am introducing today is designed to provide for several improvements in health care for veterans by supporting the family members who care for them. The challenges faced by family caregivers are well known to us. We have been working on this issue for nearly two years â¦ I think we are now beyond the scope of that original pilot program and I believe that a full-fledged permanent program is needed in VA that would have a national program for the caregivers of seriously injured veterans to provide them with education, grants, counseling, and other support services.

An amended version of S. 801 was reported by Senator Akaka on September 29, 2009 ( S.Rept. 111-80 ). The amended version would have, among other things, authorized VA to waive the cost of emergency care for caregivers of veterans; created a comprehensive program to provide assistance to the caregivers of severely injured veterans; authorized VA to pay for the caregivers' lodging and subsistence, as well as the expenses of travel for the period consisting of travel to and from a treatment facility and the duration of a treatment episode at that facility; and required VA to collaborate with DOD to conduct a national survey of family caregivers.

The House also introduced legislation that would specifically provide assistance to caregivers of OEF/OIF veterans. On July 9, 2009, Representative Michael H. Michaud introduced the Caregiver Assistance and Resource Enhancement Act ( H.R. 3155 ). On July 15, 2009, H.R. 3155 as amended, was ordered reported out of the House Veterans' Affairs Committee ( H.Rept. 111-224 ). The bill was then passed by the House on July 27, 2009. As passed by the House, H.R. 3155 would have required VA to provide support services (including CHAMPVA medical care and stipends) to the eligible caregivers of OEF and OIF veterans. To be eligible, veterans would need to meet three conditions: (1) have a severe service-connected disability or illness; (2) be in need of caregiver services, such that without such services, the veteran would require hospitalization, nursing home care, or other residential institutional care; and (3) be unable to carry out the activities of daily living (including instrumental activities of daily living).

A "hold" was placed on S. 801 that prevented the Senate from considering this measure. Subsequently, on October 28, 2009, Senator Akaka introduced a separate bill, the Caregivers and Veterans Omnibus Health Services Act of 2010 ( S. 1963 ), which included provisions from S. 801 , among other provisions. S. 1963 was passed by the Senate on November 11, 2009. The family caregiver provisions in the Senate-passed bill would have waived charges for humanitarian care to attendants of covered veterans under certain circumstances; provided family caregiver assistance including training, respite care, mental health services, and stipends; and provided lodging and subsistence for family caregivers. It would have also required VA, in coordination with DOD, to design and conduct a survey on caregivers and family caregivers.

On April 22, 2010, an amended version of S. 1963 was passed by Congress. The final version reflected a compromise agreement between the House and the Senate and included provisions derived from a number of bills, including the earlier Senate-passed S. 1963 and House-passed H.R. 3155 . On May 5, 2010, President Obama signed into law P.L. 111-163 , the Caregivers and Veterans Omnibus Health Services Act of 2010. Title I of the act provides programs and services to provide support to caregivers of veterans.

Following enactment of the 2010 legislation that established the Caregiver Support Program, there were a number of legislative attempts to expand eligibility for the Program of Comprehensive Assistance for Family Caregivers to veterans of all eras. This effort ultimately culminated with the enactment of the VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act of 2018 (VA MISSION Act; P.L. 115-182 , as amended).