Beaudette: Caregiver Program Class Action Granting the Ability to Appeal!

Beaudette v. McDonough, Opinion Number 12-4961, was decided April 19, 2021 and involves the Program of Comprehensive Assistance for Family Caregivers (Caregiver Program) and certification of a class.

The case involves the Caregivers Program, which has some limitations, but grants additional benefits to qualified veterans and have serious injuries such as a TBI, psychological trauma or other mental disorder.  The veteran must need “personal care services because of an inability to perform at least one or more activities of daily living, a need for supervision or protection because of neurological or other impairment or injury, or a need for regular or extensive instruction or 2 supervision to avoid serious impairment of daily functioning.” Id. at *1-2.  “A family caregiver of an eligible veteran is entitled to instruction and training to provide personal care services, technical support, counseling, and lodging and subsistence; the primary family caregiver is entitled to the previous benefits, as well as appropriate mental health services, respite care, medical care, and a monthly stipend.”  Id. at *2. 

This case truly involves heart-breaking facts and a terrible decision making process by the VA.  A wife and the veteran applied and were granted benefits under the program.  Five years later the VA initiated a reassessment, but the veteran could not participate in the in-person examination because he was recovering from two major surgeries and the VA denied his request to delay assessment until he recovered for an examination.  The VA ultimately informed the veteran and his wife they were no longer eligible to participate in the Caregivers program based on the reassessment.   Id. at *2.  The couple challenged the ruling through a VHA appeals process and were denied—one of them was in part because the severely disabled veteran could not attend an in-person examination.

The couple then appealed to the Board of Veterans’ Appeals in August 2019, but as of the date of this decision, had not received a response.  And, in fact, the Secretary has concluded the Caregiver Program decisions cannot be appealed to the Board.  Id. at *2.  As a result, in July 2020, the couple filed a petition to the Veterans Court.

Regarding the jurisdictional question (whether the VA curtailed the Court’s ability to review the decision by wrongfully excluding the Caregivers Program from Board review), the Court determined the benefits under the Caregivers Program fall within the Veterans Judicial Review Act and jurisdiction of the Court.

The Secretary had argued the program involved a medical determination and by statute and regulation outside of the Board’s review.  The Court noted the plain meaning of the regulation does not insulate the program from judicial review and instead noted interpretative canons which that there is a strong presumption favoring judicial review of administrative actions and there is a strong presumption that repeals by implication are disfavored and that Congress will specifically address preexisting law when it wishes to suspend its normal operations in a later statute.  Id. at *3-4.

The Court then

conclude[d] that Congress has spoken unambiguously in mandating Board review of all decisions "under a law that affects the provision of benefits by the Secretary." 38 U.S.C. § 7104(a). VA's interpretation of section 1720G(c)(1) is invalid to the extent it limits the ordinary scope and operation of the VJRA. The Beaudettes have established an indisputable right to Board review, the lack of an adequate administrative means of securing that right, and the propriety of extraordinary relief in these circumstances. Accordingly, a writ of mandamus shall issue.

Id. at *7.

As to the question of a class action, the court granted a class of individuals “who (1) received an adverse decision under the Caregiver Program, (2) exhausted available review under the VHA, and (3) have not been afforded the right to appeal to the Board.”  Id. at *7.

The Court ultimately concluded: 

From the outset, VA has taken the position that Congress meant to insulate determinations under the Caregiver Program from review by the Board and, consequently, the judiciary. The key question presented here is whether a purported reference in section 1720G to VA's longstanding rule that a "medical determination" is not appealable is sufficient to overcome the broad reach of the Veterans' Judicial Review Act and the strong presumptions in favor of reviewability of agency action and against implicit repeals of statutes. We hold that it is not. The Court will therefore grant the petition for a writ of mandamus ordering the Secretary to begin notifying claimants of their right to appeal adverse Caregiver Program determinations to the Board of Veterans' Appeals (Board). We likewise conclude that it is appropriate to certify a class in this litigation.

Id. at *1.

The result is that over the coming months the VA and class counsel are charged with developing a remedy and way to reach out to class members.  It will take time, but those denied participation under the Caregiver Program and the ability to appeal that decision will now be able to challenge it.  It does not mean all denied will win, but at least the VA will have to provide an avenue to challenge the decision and give them their day in Court.  I find it hard to believe the VA ever took a position otherwise.

Judge Falvey wrote a dissent stating he would find Congress did exclude the Caregiver Program from decisions of the Board and thus review by the Veterans Court.  He also believed a simple precedential decision by the Court would operate as sufficiently as a class action.

Opinion by Judge Toth and joined by Judge Allen. Dissent by Judge Falvey.

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