In a complaint filed in the U.S. Court of Appeals for the Federal Circuit, Andrew Sheets, his wife Kristie, and the non-profit advocacy group Veterans Warriors, Inc., say rules published July 31 conflict with the law that created the program, and extend restrictions beyond what was intended by the law that expanded the program to veterans from all eras.
Sheets has been eligible for the program since his application was approved in 2011. Following a deployment to Afghanistan in 2003, during which he completed 33 combat missions, he developed post-traumatic stress disorder, anxiety and panic attacks, along with depression. On discharge from the Navy, VA awarded him a 90% disability in light of those conditions and his physical injuries.
His rating was increased to 100% for PTSD in 2011. He and Kristie later entered the Caregiver Program, designed to provide health benefits and compensation to those who serve in lieu of a home health professional to provide daily assistance to veterans.
But the new rules, the Sheets say, include restrictions that could preclude them and thousands of other post-9/11 veterans from being eligible for the benefits.
According to the final rule published in the Federal Registry, the caregiver program is intended for those who sustained serious injury; are in need of in-person personal care; and are 100% unable to perform at least one or more activities of daily living, such as bathing, dressing, eating or getting around.
"VA's reliance on the Final Rule's new eligibility requirements itself exceeds VA's authority, because nothing in the Caregiver Act authorizes any such new eligibility requirements," wrote lawyers for the plaintiffs, including Bart Stichman with the National Veterans Legal Services Program.
The VA caregiver program was created to provide health care, services and compensation to those who care for seriously injured veterans who otherwise would need around-the-clock care from health aides or be institutionalized.
Roughly 20,000 veterans were in the program before it was expanded on Oct. 1 to include eligible veterans who served and were injured before May 7, 1975 -- an estimated 41,000 additional families or more.
The petition takes issue with the VA's definition of 'serious injury,' the new requirement that caregiver duties be performed in person and the criterion that the veteran must need complete assistance for at least one routine daily activity.
Also, according to the suit, the final rule requires that the veteran reside within the U.S., omitting those who live overseas.
"The Final Rule does not account for any assessment by the family caregiver of the needs and limitations of the veteran, nor does it consider the amount and degree of personal care services provided, or the amount of time required for the family caregiver to provide any necessary supervision, protection or instruction to the veteran," the petition charges.
The lawsuit is not the first filed over the program. Six caregivers sued VA in January 2019 saying they were improperly denied benefits or kicked out of the program after VA providers determined their veterans no longer needed help with daily activities.
Several of the plaintiffs argued that their benefits were arbitrarily downgraded, their applications were denied or they were removed from the program based on decisions the lawsuit called "arbitrary and capricious."
A federal judge dismissed the suit Dec. 19, 2019.
In August 2018, the VA Office of Inspector General found that across the VA, facilities didn't adequately manage the program and failed to provide consistent access to it. Employees also improperly accepted veterans who weren't eligible and failed to monitor the health statuses of nearly half the veterans discharged from the program, the IG found.
The department paid out $8 million to caregivers of veterans who weren't eligible for the program, according to the IG.
As of Oct. 1, veterans from World War II through the Vietnam War can apply for the program. All participants will now be assessed on the eligibility criteria and placed into one of two categories: Level 1, which includes those who require substantial caregiving but are more capable than the most disabled cohort; and Level 2, which includes those who are not able to "self-sustain in the community," meaning they require continuous supervision and help with three or more daily activities.
The stipend amount is dependent on geography and care level. A caregiver in Dallas, supporting a Level 2 veteran, for example, would receive a monthly stipend of roughly $2,803.17. For someone caring for a Level 1 veteran, it would be $1,751.98.
All who were enrolled in the program before the new rules went into effect are to be reassessed under the new eligibility criteria, according to VA.
"During a pandemic and at a time when the VA is attempting to reduce veterans suicides, the VA should be ensuring that needy veterans have access to vital caregiver services rather than limiting their access," Stichman said of the Sheets’ suit.
Under the Mission Act, the program will undergo another expansion on Oct. 1, 2022, to include combat veterans who served between 1975 and Sept. 11, 2001.
Department of Veterans Affairs officials declined to comment on the suit, saying they do not comment on pending legislation.
The couple also has an ongoing lawsuit within the California state court system, having filed a complaint in December 2018 against the makers of the malaria drug Lariam -- the brand name for mefloquine -- alleging that the medication left the SEAL permanently disabled after he was required to take it in Afghanistan.
That suit, which remains in the courts, alleges that company, Hoffman-LaRoche, was aware that the drug caused serious neurological and psychiatric side effects and failed to warn patients of the dangers.
-- Patricia Kime can be reached at Patricia.Kime@Monster.com. Follow her on Twitter @patriciakime.