21 Feb 2023 • Military.com • By Patricia Kime
The U.S. Supreme Court rejected a case filed by a Navy SEAL and veterans advocates over new regulations put in place in 2020 by the Department of Veterans Affairs that led to families being told they were being removed from the agency’s caregiver program.
The high court announced Tuesday that it would not accept the case Veteran Warriors, Inc., et. al. v. McDonough, upholding a U.S. Federal Circuit Court of Appeals’ decision that favored the VA’s decision to change the eligibility rules for its Program of Comprehensive Assistance for Family Caregivers.
The changes to eligibility meant that hundreds of families received notifications that they would no longer be able to participate in a program that provides financial support for family members who offer assistance to veterans. The VA has since suspended the eligibility reviews that were leading to those notices.
Veterans Warriors Inc., former SEAL Andrew Sheets and wife Kristie had filed the lawsuit arguing that new rules, published in 2020, conflicted with the law that created the program and extended restrictions beyond what was intended when the program was opened to combat veterans of all eras.
The program initially was created to support post-9/11 combat-injured veterans, providing additional compensation and benefits to a veteran who relied on a spouse or family member for care rather than hire a home health aide or live in a nursing facility.
The new rules introduced prior to program expansion were more restrictive than previously, requiring that a veteran must have sustained a serious injury, was in need of in-person personal care, and was 100% unable to perform at least one or more activities of daily living, such as bathing, dressing, eating or getting around.
The suit took issue with the VA’s definition of “serious injury,” as well as a new requirement that caregiver duties be performed in person. The Sheetses also rejected the criterion that the veteran must need complete assistance for at least one routine daily activity.
“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 plaintiffs wrote in their argument to the appeals court.
In taking the case to the U.S. Supreme Court, Veteran Warriors Inc., working in partnership with the National Veterans Legal Services Program, said the court should intervene because legal precedence indicated that any decision should have favored the veteran, not the federal government.
Known as the Pro-Veteran Canon, the plaintiffs said that decisions on benefits for members should be “construed in the beneficiaries’ favor.”
Attorneys for the VA maintained that the department has the authority to make rules, and the law allowed it to consider how the program would work in the larger benefits landscape in forming the new regulations.
In 2018, Congress voted to expand the Family Caregiver program to veterans of previous conflicts, starting first with the oldest veterans. To prepare for the influx of new caregivers, the VA changed the eligibility criteria, with the idea that the neediest of veterans, including legacy participants and new beneficiaries, would be helped without radically increasing the cost of the program.
Under the new rules, roughly 19,700 legacy participants were to be assessed for continued participation. While the previous eligibility rules were similar, the VA used a different evaluation scoring system and based stipends on the amount of time required to provide care, with those in the lowest tier needing 10 hours of care a week. Those in the highest tier — at least 40 hours of care a week — receive the largest amount.
From the outset, VA officials estimated that most of the participants in the lowest tier would lose eligibility, as would some in the middle tier, or roughly 6,000 veterans.
As the assessments started, however, it became clear that many more would be booted from the program — 90% by VA estimates. The department paused the process to review the entire program, extending benefits to all participants until 2025.
On Tuesday, Veteran Warriors Inc. Executive Director Holly Ferrell said the justices were wrong in rejecting the petition, not understanding that even veterans needing the highest level of assistance were being kicked out of the program under the new rules.
“This is a ruling against the veteran and caregiver community,” Ferrell said in an interview with Military.com. “It’s clear they either didn’t have an understanding of what was at stake or that it was not relevant to them, which is concerning.”
The chance of any case getting accepted to the U.S. Supreme Court, however, was a long shot: More than 7,000 petitions are filed each year ,and the court accepts roughly 80.
Despite the legal roadblock, Ferrell said she is more hopeful than she’s “ever been” about the future of the program.
“With the new leadership, [Executive Director] Colleen Richardson and [Deputy Director] Tim Jobin, VA has shown a lot of positivity. They are gaining the trust of the community and, through their actions, are doing things the community has never seen before. They will hopefully turn this around.”
The lawsuit was not the first filed over the program. In 2019, six caregivers sued the VA, 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.” That case was dismissed later that year.
The plaintiff in the Supreme Court petition, Sheets, has been in the program since 2011. He became eligible after being diagnosed with post-traumatic stress disorder, anxiety, panic attacks and depression related to participating in 33 combat missions in Afghanistan.