New California regulation protects veterans’ spouses

On Oct. 1 California issued a new regulation that restores a substantial benefit to spouses or partners of veterans living at the California Veterans Home. While barely registering with the public at large at the time, this was a righteous action by the State agency that is charged with administering the Home, the California Department of Veterans Affairs (“CalVet.”) For this, CalVet deserves our recognition and thanks.

The new regulation is the fulfillment of over five years of legal struggle, and an occasion for celebration.

With eight facilities throughout the State, the California Veterans Home, administered by CalVet, provides a home and affordable long-term care to veterans, and their eligible spouses and domestic partners. The Veterans Home has been in continuous operation since 1884, beginning with the venerable facility at Yountville in beautiful Napa Valley. From almost the outset, the Home has been funded largely by the California taxpayer, with a contribution from the federal government made though a per diem paid by the U.S. Department of Veterans Affairs (USDVA). The federal per diem currently provides less than 25% of the total operating costs of the Home.

The new regulation concerns the End of Life Option Act (the EOLA.) California Health and Safety Code, §§ 443-443.22. Under the EOLA, any Californian who has been diagnosed to be in the terminal stage of illness and has sufficient capacity to make medical decisions, may request, according to a specific statutory procedure, that his or her attending physician prescribe medication which the patient may choose to ingest to achieve a peaceful and dignified death. This medical aid in dying option (AID) is now legal in ten states and Washington D.C.

While unsettled, there is a legal argument that federal law conflicts with the EOLA. A 1997 federal statute bans the use of federal funds for “suicide, euthanasia, or mercy killing of any individual.” 1997 Federal Assisted Suicide Funding Restriction Act, 42 U.S.C. section 14401 (FASFRA). Therefore, when the EOLA was enacted in California in 2015, CalVet became concerned that if AID were permitted in the California Veterans Home, USDVA might suspend or withdraw its per diem funding contribution for the Home.

CalVet did not ask for, or receive, any definitive advice as to the USDVA’s legal position on allowing access to AID in the California Veterans Home. Nor did CalVet ever explore or study options for funding AID in the California Veterans Home, for instance by setting aside non-federal funds or private sources to pay for the cost of AID to veterans, thus avoiding the use of federal monies. Instead, CalVet decided simply to deny access to AID under the EOLA to veterans living at the Home. So CalVet promulgated a regulation in June 2016 mandating that if a veteran living in the California Veterans Home is diagnosed with a terminal illness and wishes to avoid, through AID, the pain, suffering and indignity of their final stage of life, they must leave (“discharge from”) the Home to die elsewhere. Section 520.2(c) of Title 12 of the California Code of Regulations.

This is plainly wrong. Veterans living at the Home are not wards of the State and should unquestionably be afforded the same rights as other Californians, including choosing to die peacefully at their home.

But in the end, after years of litigation, it became clear that the court could do nothing to enable veteran residents of the Home to access AID. CalVet’s determination that federal funding was at risk could not effectively be legally challenged. CalVet could not be forced to pursue reasonable alternatives.

The impact of this regulation on the residents of the Home has stayed with me, as they were proud and dignified veterans who answered their country’s call for service. For them, there was a broader principal at stake: they believed that nobody should be denied their rights as Californians because the State provided them a home at the California Veterans Home. One of those men was Bob Sloan, a U.S. Army veteran, who had been a resident of the Yountville Home since 2013. In 2019, Bob was diagnosed with a terminal illness that made him disabled. Bob was in extreme pain. Leaving his home at the Veterans Home was never an option. He was a champion of Aid in Dying. As he stated in a declaration to the court: “I am not afraid to die. But I do not want to live my remaining life in pain and indignity. I wish to have the option of access to aid in dying under the [EOLA.]” Bob was never granted his wish. He died later in 2019, in great pain, at the Yountville Home. I cannot escape the regret of not being able to do more for Bob.

But there was another aspect to the case: as originally promulgated, the regulation provided that if a veteran who chose to access AID and discharged from the Home, their spouse or partner were also forced to leave. This was particularly unfair: a spouse or partner should not, under these circumstances, be thrown out of their home.

Mercifully, CalVet has now relented. Under the new regulation, a nonveteran spouse or domestic partner previously admitted to the Veterans Home in a joint admission with a veteran may elect to continue to live at the Home after the veteran “discharges” from the Home to access AID. Section 505.13 of the California Code of Regulations. This is a significant victory. No longer must a veteran worry that his or her choice to hasten death will have such dire consequences for his or her spouse or partner.