< Back to S. 801 (111th Congress, 2009–2010)

Text of the Caregiver and Veterans Health Services Act of 2009

This bill was introduced on May 21, 2009, in a previous session of Congress, but was not enacted. The text of the bill below is as of Apr 2, 2009 (Introduced).

This is not the latest text of this bill.

Source: GPO

II

111th CONGRESS

1st Session

S. 801

IN THE SENATE OF THE UNITED STATES

April 2, 2009

(for himself, Mr. Burr, Mr. Tester, Mr. Burris, and Mr. Rockefeller) introduced the following bill; which was read twice and referred to the Committee on Veterans' Affairs

A BILL

To amend title 38, United States Code, to waive charges for humanitarian care provided by the Department of Veterans Affairs to family members accompanying veterans severely injured after September 11, 2001, as they receive medical care from the Department and to provide assistance to family caregivers, and for other purposes.

1.

Short title

This Act may be cited as the Family Caregiver Program Act of 2009.

2.

Waiver of charges for humanitarian care provided to family members accompanying certain severely injured veterans as they receive medical care

The text of section 1784 of title 38, United States Code, is amended to read as follows:

(a)

In general

The Secretary may furnish hospital care or medical services as a humanitarian service in emergency cases.

(b)

Reimbursement

Except as provided in subsection (c), the Secretary shall charge for care and services provided under subsection (a) at rates prescribed by the Secretary.

(c)

Waiver of charges

(1)

Except as provided in paragraph (2), the Secretary shall waive the charges required by subsection (b) for care or services provided under subsection (a) to an attendant of a covered veteran if such care or services are provided to such attendant for an emergency that occurs while such attendant is accompanying such veteran while such veteran is receiving approved inpatient or outpatient treatment at—

(A)

a Department facility; or

(B)

a non-Department facility—

(i)

that is under contract with the Department; or

(ii)

at which the veteran is receiving fee-basis care.

(2)

If an attendant is entitled to care or services under a health-plan contract (as that term is defined in section 1725(f) of this title) or other contractual or legal recourse against a third party that would, in part, extinguish liability by charges described by subsection (b), the amount of such charges waived under paragraph (1) shall be the amount by which such charges exceed the amount of such charges covered by the health-plan contract or other contractual or legal recourse against the third party.

(d)

Definitions

In this section:

(1)

The term attendant includes, with respect to a veteran, the following:

(A)

A family member of the veteran.

(B)

An individual eligible to receive ongoing family caregiver assistance under section 1717A(e)(1) of this title for the provision of personal care services to the veteran.

(C)

Any other individual whom the Secretary determines—

(i)

has a relationship with the veteran sufficient to demonstrate a close affinity with the veteran; and

(ii)

provides a significant portion of the veteran's care.

(2)

The term covered veteran means any veteran with a severe injury incurred or aggravated in the line of duty in the active military, naval, or air service on or after September 11, 2001.

(3)

The term family member with respect to a veteran, includes the following:

(A)

The spouse of the veteran.

(B)

The child of the veteran.

(C)

A parent of the veteran.

(D)

A sibling of the veteran.

(E)

A cousin of the veteran.

(F)

An aunt of the veteran.

(G)

An uncle of the veteran.

(H)

A grandparent of the veteran.

(I)

A grandchild of the veteran.

(J)

A stepparent of the veteran.

(K)

A stepchild of the veteran.

(L)

A stepsibling of the veteran.

(M)

A parent-in-law of the veteran.

(N)

A sister-in-law of the veteran.

(O)

A brother-in-law of the veteran.

(P)

A cousin of the spouse of the veteran.

(Q)

An aunt of the spouse of the veteran.

(R)

An uncle of the spouse of the veteran.

(S)

A grandparent of the spouse of the veteran.

(T)

A grandchild of the spouse of the veteran.

(U)

A stepparent of the spouse of the veteran.

(V)

A stepsibling of the spouse of the veteran.

(W)

Such other individuals as the Secretary shall specify in regulations for purposes of this section.

(4)

The term severe injury means, in the case of a covered veteran, any injury as follows:

(A)

A physiological condition of the veteran if the condition is a permanent or temporary severely disabling disorder that compromises the ability of the veteran to carry out one or more independent activities of daily living.

(B)

A psychological condition of the veteran if the condition is rated at 30 or less on the Global Assessment of Functioning (GAF) scale, as set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (DSM–IV–TR), or the most recent edition if different than the Fourth Edition Text Revision, of the American Psychiatric Association.

(C)

An injury for which the veteran needs supervision or protection based on symptoms or residuals of neurological or other impairment.

(D)

Any other injury of the veteran that is determined to be a severe injury in accordance with regulations prescribed by the Secretary for purposes of this section.

.

3.

Family caregiver assistance

(a)

Requirement

(1)

In general

Subchapter II of chapter 17 of title 38, United States Code, is amended by inserting after section 1717 the following new section:

1717A.

Family caregiver assistance

(a)

In general

(1)

As part of home health services provided under section 1717 of this title, the Secretary shall, upon the joint application of an eligible veteran and a family member of such veteran (or other individual designated by such veteran), furnish to such family member (or designee) family caregiver assistance in accordance with this section. The purpose of providing family caregiver assistance under this section is—

(A)

to reduce the number of veterans who are receiving institutional care, or who are in need of institutional care, whose personal care service needs could be substantially satisfied with the provision of such services by a family member (or designee); and

(B)

to provide eligible veterans with additional options so that they can choose the setting for the receipt of personal care services that best suits their needs.

(2)

The Secretary shall only furnish family caregiver assistance under this section to a family member of an eligible veteran (or other individual designated by such veteran) if the Secretary determines it is in the best interest of the eligible veteran to do so.

(b)

Eligible veterans

(1)

For purposes of this section, an eligible veteran is a veteran (or member of the Armed Forces undergoing medical discharge from the Armed Forces)—

(A)

who has a serious injury (including traumatic brain injury, psychological trauma, or other mental disorder) incurred or aggravated in line of duty in the active military, naval, or air service on or after the date described in paragraph (2); and

(B)

whom the Secretary determines, in consultation with the Secretary of Defense as necessary, is in need of personal care services because of—

(i)

an inability to perform one or more independent activities of daily living;

(ii)

a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury; or

(iii)

such other matters as the Secretary shall establish in consultation with the Secretary of Defense as appropriate.

(2)

The date described in this paragraph—

(A)

during the period beginning on the date of the enactment of the Family Caregiver Program Act of 2009 and ending two years after the date of the enactment of that Act, is September 11, 2001; and

(B)

beginning on the first day after the date that is two years after the date of the enactment of the Family Caregiver Program Act of 2009, is the earliest date the Secretary determines is appropriate to include the largest number of veterans possible under this section without reducing the quality of care provided to such veterans.

(c)

Evaluation of eligible veterans and family caregivers

(1)

The Secretary shall evaluate each eligible veteran who makes a joint application under subsection (a)(1)—

(A)

to identify the personal care services required by such veteran; and

(B)

to determine whether such requirements could be significantly or substantially satisfied with the provision of personal care services from a family member (or other individual designated by the veteran).

(2)

The Secretary shall evaluate each family member of an eligible veteran (or other individual designated by the veteran) who makes a joint application under subsection (a)(1) to determine—

(A)

the basic amount of instruction, preparation, and training such family member (or designee) requires, if any, to provide the personal care services required by such veteran; and

(B)

the amount of additional instruction, preparation, and training such family member (or designee) requires, if any, to be the primary personal care attendant designated for such veteran under subsection (e).

(3)

An evaluation carried out under paragraph (1) may be carried out—

(A)

at a Department facility;

(B)

at a non-Department facility determined appropriate by the Secretary for purposes of such evaluation; and

(C)

such other locations as the Secretary considers appropriate.

(d)

Training and certification

(1)

Except as provided in subsection (a)(2), the Secretary shall provide each family member of an eligible veteran (or other individual designated by the veteran) who makes a joint application under subsection (a)(1) the basic instruction, preparation, and training determined to be required by such family member (or designee) under subsection (c)(2)(A).

(2)

The Secretary may provide to a family member of an eligible veteran (or other individual designated by the veteran) the additional instruction, preparation, and training determined to be required by such family member (or designee) under subsection (c)(2)(B) if such family member (or designee)—

(A)

is certified as a personal care attendant for the veteran under paragraph (3); and

(B)

requests, with concurrence of the veteran, such additional instruction, preparation, and training.

(3)

Upon the successful completion by a family member of an eligible veteran (or other individual designated by the veteran) of basic instruction, preparation, and training provided under paragraph (1), the Secretary shall certify the family member as a personal care attendant for the veteran.

(4)

If the Secretary determines that a primary personal care attendant designated under subsection (e) requires additional training to maintain such designation, the Secretary shall make such training available to the primary personal care attendant.

(5)

The Secretary shall, subject to regulations the Secretary shall prescribe, provide for necessary travel, lodging, and per diem expenses incurred by a family member of an eligible veteran (or other individual designated by the veteran) in undergoing training under this subsection.

(6)

If the participation of a family member of an eligible veteran (or other individual designated by the veteran) in training under this subsection would interfere with the provision of personal care services to the veteran, the Secretary shall, subject to regulations as the Secretary shall prescribe and in consultation with the eligible veteran, provide respite care to the eligible veteran during the provision of such training to the family member so that such family caregiver (or designee) can participate in such training without interfering with the provision of such services.

(e)

Designation of primary personal care attendant

(1)

For each eligible veteran with at least one family member (or other individual designated by the veteran) who is described by subparagraphs (A) through (E) of paragraph (2), the Secretary shall designate one family member of such veteran (or other individual designated by the veteran) as the primary personal care attendant for such veteran to be the primary provider of personal care services for such veteran.

(2)

A primary personal care attendant designated for an eligible veteran under paragraph (1) shall be selected from among family members of such veteran (or other individuals designated by such veteran) who—

(A)

are certified under subsection (d)(3) as a personal care attendant for such veteran;

(B)

complete all additional instruction, preparation, and training, if any, provided under subsection (d)(2);

(C)

elect to provide the personal care services to such veteran that the Secretary determines such veteran requires under subsection (c)(1);

(D)

has the consent of such veteran to be the primary provider of such services for such veteran; and

(E)

the Secretary considers competent to be the primary provider of such services for such veteran.

(3)

An eligible veteran receiving personal care services from a family member (or other individual designated by the veteran) designated as the primary personal care attendant for the veteran under paragraph (1) may revoke consent with respect to such family member (or designee) under paragraph (2)(D) at any time.

(4)

If an individual designated as the primary personal care attendant of an eligible veteran under paragraph (1) subsequently fails to meet the requirements set forth in paragraph (2), the Secretary—

(A)

shall immediately revoke the individual's designation under paragraph (1); and

(B)

may designate, in consultation with the eligible veteran or the eligible veteran's surrogate appointed under subsection (g), a new primary personal care attendant for the veteran under such paragraph.

(5)

The Secretary shall take such actions as may be necessary to ensure that the revocation of a designation under paragraph (1) does not interfere with the provision of personal care services required by a veteran.

(f)

Ongoing family caregiver assistance

(1)

Except as provided in subsection (a)(2) and subject to the provisions of this subsection, the Secretary shall provide ongoing family caregiver assistance to family members of eligible veterans (or other individuals designated by such veterans) as follows:

(A)

To each family member of an eligible veteran (or designee) who is certified under subsection (d)(3) as a personal care attendant for the veteran the following:

(i)

Direct technical support consisting of information and assistance to timely address routine, emergency, and specialized caregiving needs.

(ii)

Counseling.

(iii)

Access to an interactive Internet website on caregiver services that addresses all aspects of the provision of personal care services under this section.

(B)

To each family member of an eligible veteran (or designee) who is designated as the primary personal care attendant for the veteran under subsection (e) the following:

(i)

The ongoing family caregiver assistance described in subparagraph (A).

(ii)

Mental health services.

(iii)

Respite care of not less than 30 days annually, including 24-hour per day care of the veteran commensurate with the care provided by the family caregiver to permit extended respite.

(iv)

Medical care under section 1781 of this title.

(v)

A monthly personal caregiver stipend.

(2)
(A)

The Secretary shall provide respite care under paragraph (1)(B)(iii), at the election of the Secretary—

(i)

through facilities of the Department that are appropriate for the veteran; or

(ii)

through contracts under section 1720B(c) of this title.

(B)

If the primary personal care attendant of an eligible veteran designated under subsection (e)(1) determines in consultation with the veteran or the veteran's surrogate appointed under subsection (g), and the Secretary concurs, that the needs of the veteran cannot be accommodated through the facilities and contracts described in subparagraph (A), the Secretary shall, in consultation with the primary personal care attendant and the veteran (or the veteran's surrogate), provide respite care through other facilities or arrangements that are medically and age appropriate.

(3)
(A)

The Secretary shall provide monthly personal caregiver stipends under paragraph (1)(B)(v) in accordance with a schedule established by the Secretary that specifies stipends provided based upon the amount and degree of personal care services provided.

(B)

The Secretary shall ensure, to the extent practicable, that the schedule required by subparagraph (A) specifies that the amount of the personal caregiver stipend provided to a primary personal care attendant designated under subsection (e)(1) for the provision of personal care services to an eligible veteran is not less than the amount the Secretary would pay a commercial home health care entity in the geographic area of the veteran to provide equivalent personal care services to the veteran.

(C)

If personal care services are not available from a commercial provider in the geographic area of an eligible veteran, the Secretary may establish the schedule required by subparagraph (A) with respect to the veteran by considering the costs of commercial providers of personal care services in geographic areas other than the geographic area of the veteran with similar costs of living.

(4)

Provision of ongoing family caregiver assistance under this subsection for provision of personal care services to an eligible veteran shall terminate if the eligible veteran no longer requires the personal care services.

(g)

Surrogates

If an eligible veteran lacks the capacity to submit an application, provide consent, make a request, or concur with a request under this section, the Secretary may, in accordance with regulations and policies of the Department regarding the appointment of guardians or the use of powers of attorney, appoint a surrogate for the veteran who may submit applications, provide consent, make requests, or concur with requests on behalf of the veteran under this section.

(h)

Oversight

(1)

The Secretary shall enter into contracts with appropriate entities to provide oversight of the provision of personal care services by primary personal care attendants designated under subsection (e)(1) under this section.

(2)

The Secretary shall ensure that each eligible veteran receiving personal care services under this section from a primary personal care attendant designated under subsection (e)(1) is visited in the veteran's home by an entity providing oversight under paragraph (1) at such frequency as the Secretary shall determine under paragraph (3) to determine if the care received by the veteran under this section meets the needs of the veteran.

(3)
(A)

Except as provided in subparagraph (B), the Secretary shall determine the manner of oversight provided under paragraph (1) and the frequency of visits under paragraph (2) for an eligible veteran as the Secretary considers commensurate with the needs of such eligible veteran.

(B)

The frequency of visits under paragraph (2) for an eligible veteran shall be not less frequent than once every six months.

(4)
(A)

An entity visiting an eligible veteran under paragraph (2) shall submit to the Secretary the findings of the entity with respect to each visit, including whether the eligible veteran is receiving the care the eligible veteran requires.

(B)

If an entity finds under subparagraph (A) that an eligible veteran is not receiving the care the eligible veteran requires, the entity shall submit to the Secretary a recommendation on the corrective actions that should be taken to ensure that the eligible veteran receives the care the eligible veteran requires, including, if the entity considers appropriate, a recommendation for revocation of a caregiver's certification under subsection (d)(3) or revocation of the designation of an individual under subsection (e)(1).

(5)

After receiving findings and recommendations, if any, under paragraph (4) with respect to an eligible veteran, the Secretary may take such actions as the Secretary considers appropriate to ensure that the eligible veteran receives the care the eligible veteran requires, including the following:

(A)

Revocation of a caregiver's certification under subsection (d)(3).

(B)

Revocation of the designation of an individual under subsection (e)(1).

(6)

If the Secretary terminates the provision of ongoing family caregiver assistance under subsection (f) to a family member of an eligible veteran (or other individual designated by the veteran) because of findings of an entity submitted to the Secretary under paragraph (4) of this subsection, the Secretary may not provide compensation to such entity for the provision of personal care services to such veteran, unless the Secretary determines it would be in the best interest of the eligible veteran to provide compensation to such entity to provide such services.

(i)

Outreach

The Secretary shall carry out a program of outreach to inform eligible veterans and their family members of the availability and nature of family caregiver assistance.

(j)

Construction

A decision by the Secretary under this section affecting the furnishing of family caregiver assistance shall be considered a medical determination.

(k)

Definitions

In this section:

(1)

The term family caregiver assistance includes the instruction, preparation, training, and certification provided under subsection (d) and the ongoing family caregiver assistance provided under subsection (f).

(2)

The term family member includes, with respect to a veteran, the following:

(A)

The spouse of the veteran.

(B)

The child of the veteran.

(C)

A parent of the veteran.

(D)

A sibling of the veteran.

(E)

A cousin of the veteran.

(F)

An aunt of the veteran.

(G)

An uncle of the veteran.

(H)

A grandparent of the veteran.

(I)

A grandchild of the veteran.

(J)

A stepparent of the veteran.

(K)

A stepchild of the veteran.

(L)

A stepsibling of the veteran.

(M)

A parent-in-law of the veteran.

(N)

A sister-in-law of the veteran.

(O)

A brother-in-law of the veteran.

(P)

A cousin of the spouse of the veteran.

(Q)

An aunt of the spouse of the veteran.

(R)

An uncle of the spouse of the veteran.

(S)

A grandparent of the spouse of the veteran.

(T)

A grandchild of the spouse of the veteran.

(U)

A stepparent of the spouse of the veteran.

(V)

A stepsibling of the spouse of the veteran.

(W)

Such other individuals as the Secretary shall specify in regulations for purposes of this section.

(3)

The term personal care services includes the following:

(A)

Supervision.

(B)

Protection.

(C)

Services to assist a veteran with one or more independent activities of daily living.

(D)

Such other services as the Secretary considers appropriate.

.

(2)

Clerical amendment

The table of sections at the beginning of chapter 17 of such title is amended by inserting after the item related to section 1717 the following new item:

1717A. Family caregiver assistance.

.

(3)

Authorization for provision of health care to personal care attendants

Section 1781(a) of such title is amended—

(A)

by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and

(B)

by inserting after paragraph (1) the following new paragraph (2):

(2)

a family member of a veteran (or other individual designated by the veteran) designated as the primary personal care attendant for such veteran under section 1717A(e) of this title,

.

(4)

Construction

The furnishing of family caregiver assistance under section 1717A of title 38, United States Code, as added by paragraph (1), shall be construed to supplement and not supplant the programs of the Department of Veterans Affairs in existence on the date of the enactment of this Act.

(5)

Effective date

The amendments made by this subsection shall take effect on the date that is 270 days after the date of the enactment of this Act.

(b)

Implementation plan and report

(1)

In general

Not later than 180 days after the date of the enactment of this Act, the Secretary of Veterans Affairs shall—

(A)

develop a plan for the implementation of section 1717A of title 38, United States Code, as added by subsection (a)(1); and

(B)

submit to the Committee on Veterans' Affairs of the Senate and the Committee on Veterans' Affairs of the House of Representatives a report on such plan.

(2)

Consultation

In developing the plan required by paragraph (1)(A), the Secretary shall consult with the following:

(A)

Veterans described in section 1717A(b) of title 38, United States Code, as added by subsection (a)(1).

(B)

Family members of veterans who provide personal care services to such veterans.

(C)

Veterans service organizations, as recognized by the Secretary of Veterans Affairs for the representation of veterans under section 5902 of title 38, United States Code.

(D)

Relevant national organizations that specialize in the provision of assistance to individuals with the types of disabilities that personal care attendants will encounter while providing personal care services under section 1717A of title 38, United States Code, as so added.

(E)

Such other organizations with an interest in the provision of care to veterans as the Secretary considers appropriate.

(F)

The Secretary of Defense with respect to matters concerning personal care services for eligible veterans who are members of the Armed Forces undergoing medical discharge from the Armed Forces.

(3)

Report contents

The report required by paragraph (1)(B) shall contain the following:

(A)

The plan required by paragraph (1)(A).

(B)

A description of the veterans, caregivers, and organizations consulted by the Secretary under paragraph (2).

(C)

A description of such consultations.

(D)

The recommendations of such veterans, caregivers, and organizations, if any, that were not incorporated into the plan required by paragraph (1)(A).

(E)

The reasons the Secretary did not incorporate such recommendations into such plan.

(c)

Annual evaluation report

(1)

In general

Not later than two years after the date described in subsection (a)(4) and annually thereafter, the Secretary shall submit to the Committee on Veterans' Affairs of the Senate and the Committee on Veterans' Affairs of the House of Representatives a comprehensive report on the implementation of section 1717A of title 38, United States Code, as added by subsection (a)(1).

(2)

Contents

The report required by paragraph (1) shall include the following:

(A)

The number of family members of veterans (or other individuals designated by veterans) that received family caregiver assistance under such section 1717A.

(B)

A description of the outreach activities carried out by the Secretary in accordance with subsection (i) of such section 1717A.

(C)

The resources expended by the Secretary under such section 1717A.

(D)

An assessment of the manner in which resources are expended by the Secretary under such section 1717A, particularly with respect to the provision of monthly personal caregiver stipends under subsection (f) of such section.

(E)

A description of the outcomes achieved by, and any measurable benefits of, carrying out the requirements of such section 1717A.

(F)

A justification of any determination made under subsection (b)(2) of such section 1717A.

(G)

An assessment of the effectiveness and the efficiency of the implementation of such section 1717A.

(H)

An assessment of how the provision of family caregiver assistance fits into the continuum of home health care services and benefits provided to veterans in need of such services and benefits.

(I)

Such recommendations, including recommendations for legislative or administrative action, as the Secretary considers appropriate in light of carrying out the requirements of such section 1717A.

4.

Lodging and subsistence for attendants

Section 111(e) of title 38, United States Code, is amended—

(1)

by striking When any and inserting (1) When any;

(2)

in paragraph (1), as designated by paragraph (1) of this subsection—

(A)

by inserting (including lodging and subsistence) after expenses of travel; and

(B)

by inserting before the period at the end the following: for the period consisting of travel to and from a treatment facility and the duration of the treatment episode; and

(3)

by adding at the end the following:

(2)

The Secretary may prescribe regulations to carry out this subsection. Such regulations may include provisions—

(A)

to limit the number of individuals that may receive expenses of travel under paragraph (1) for a single treatment episode of a person; and

(B)

to require attendants to use certain travel services.

(3)

In this subsection:

(A)

The term attendant includes, with respect to a person described in paragraph (1), the following:

(i)

A family member of the person.

(ii)

An individual certified as a personal care attendant under section 1717A(d)(3) of this title.

(iii)

Any other individual whom the Secretary determines—

(I)

has a preexisting relationship with the person; and

(II)

provides a significant portion of the person's care.

(B)

The term family member includes, with respect to a person described in paragraph (1), the following:

(i)

The spouse of the person.

(ii)

The child of the person.

(iii)

A parent of the person.

(iv)

A sibling of the person.

(v)

A cousin of the person.

(vi)

An aunt of the person.

(vii)

An uncle of the person.

(viii)

A grandparent of the person.

(ix)

A grandchild of the person.

(x)

A stepparent of the person.

(xi)

A stepchild of the person.

(xii)

A stepsibling of the person.

(xiii)

A parent-in-law of the person.

(xiv)

A sister-in-law of the person.

(xv)

A brother-in-law of the person.

(xvi)

A cousin of the spouse of the person.

(xvii)

An aunt of the spouse of the person.

(xviii)

An uncle of the spouse of the person.

(xix)

A grandparent of the spouse of the person.

(xx)

A grandchild of the spouse of the person.

(xxi)

A stepparent of the spouse of the person.

(xxii)

A stepsibling of the spouse of the person.

(xxiii)

Such other individuals as the Secretary shall specify in regulations for purposes of this subsection.

.