38 CFR 8.116 Appeals
38 CFR 8.117 Appeal to Board of Veterans Appeals.
(a) The provisions of Part 19 of this chapter will be followed in
connection with appeals to the Board of Veterans Appeals involving
questions pertaining to the denial of applications for insurance, total
disability income provision, or reinstatement; disallowance of claims
for insurance benefits; and decisions holding fraud or imposing
forfeiture. Notice to the applicant or claimant and his representative,
if any, of the right to appeal will be sent by the insurance activity
having jurisdiction over the case, at time action of denial,
disallowance, or forfeiture is taken.
(b) When an appeal to the Board of Veterans Appeals is initiated by a
notice of disagreement, any unpaid premiums, normally due under the
policy from effective date of issue or reinstatement (as appropriate),
will become an interest-bearing lien, enforceable as a legal debt due
the United States and subject to all available collection procedures in
the event of favorable action by the Board.
(c) Where the adverse action from which appeal is taken involves a
change in or addition to insurance currently in force, premium payments
must be continued on the existing contract.
(33 FR 3176, Feb. 20, 1968)
38 CFR 8.117 Total Disability for Twenty Years or More
38 CFR 8.118 Total disability for twenty years or more.
Where the Disability Insurance Claims activity has made a finding of
total disability for insurance purposes and it is found that such
disability remained continuously in effect for 20 or more years, the
finding will not be discontinued thereafter, except upon a showing that
such a determination was based on fraud. The 20-year period will be
computed from the date the continuous total disability commenced, as
determined by the Disability Insurance Claims activity.
(27 FR 11893, Dec. 1, 1962)
38 CFR 8.119 Guardian: definition and authority.
(a) Definition. For the purpose of this section, the term guardian
includes any fiduciary certified by the appropriate Veterans Services
Officer under 13.55 of this title to receive benefits in a fiduciary
capacity for an insured or beneficiary.
(b) Authority. For the purpose of this part, a guardian of an
insured or beneficiary shall have authority to: Apply for insurance;
apply for conversion of a policy or change of plan; reinstate a policy;
withdraw dividends held on deposit or credit; select or change a
dividend option; obtain a policy loan; cash surrender a policy;
authorize a deduction from benefits or allotment from military retired
pay to pay premiums; apply for and receive payment of the proceeds on a
matured policy; select or change the premium payment option; apply for
waiver of premiums and total disability income benefits; select or
change settlement options for beneficiaries; assign a beneficiary's
interest as provided under section 1918 of title 38 U.S.C.
(Authority: 38 U.S.C. 1906)
(56 FR 9627, Mar. 7, 1991)
38 CFR 8.119 PART 8a -- VETERANS MORTGAGE LIFE INSURANCE
Sec.
8a.1 Definitions.
8a.2 Maximum amount of insurance.
8a.3 Effective date.
8a.4 Coverage.
8a.5 Beneficiaries.
8a.6 Payment of premiums.
8a.7 Termination.
Authority: 72 Stat. 1114; 85 Stat. 320; 38 U.S.C. 501, 2106,
unless otherwise noted.
Source: 37 FR 282, Jan. 8, 1972, unless otherwise noted.
38 CFR 8a.1 Definitions.
(a) The term eligible veteran means any veteran who is or has been
granted assistance in securing a suitable housing unit under chapter 21
of title 38 U.S.C., and who has not attained his or her 70th birthday.
(b) The term grant means the monetary assistance given to a veteran
in acquiring a suitable housing unit under chapter 21 of title 38 U.S.C.
(c) The term housing unit means a family dwelling or unit, together
with the necessary land therefor, that has been or will be purchased,
constructed, or remodeled with a grant to meet the needs of an eligible
veteran and of his or her family, and is or will be owned and occupied
by the eligible veteran as his or her home, or a family dwelling or
unit, including the necessary land therefor, acquired by an eligible
veteran to be used as his or her residence after selling or otherwise
disposing of title to the housing unit for which his or her grant was
made.
(d) The term Veterans Mortgage Life Insurance means the mortgage
protection life insurance authorized for veterans under 38 U.S.C. 2106.
(e) The term initial amount of insurance means the amount of
insurance corresponding in amount to the unpaid principal of a mortgage
loan outstanding on a housing unit owned or to be acquired by an
eligible veteran on August 11, 1971, or on the date of approval of his
or her grant made under chapter 21 of title 38 U.S.C., whichever is the
later date.
(f) The term mortgage loan means any loan, lien, or other
indebtedness incurred by an eligible veteran to buy, build, remodel, or
enlarge a housing unit, the payment of which loan, lien, or indebtedness
is secured by a mortgage lien, or other equivalent security of record,
on the housing unit in the usual legal form employed in the community in
which the property is situated. The term also includes refinancing of
such an indebtedness to avoid a default, to consolidate liens, to renew
or extend the time for payment of the indebtedness, and in cases where
the housing unit is being bought, built, remodeled, or enlarged by
increasing the amount of such an indebtedness.
(g) The term owned means the eligible veteran has or will acquire an
interest in the housing unit which is:
(1) A fee simple estate, or
(2) A leasehold estate, the unexpired term of which, including
renewals at the option of the lessee, is not less than 50 years, or
(3) An interest in a residential unit in a cooperative or a
condominium type development which in the judgment of the Chief Benefits
Director or the Director, Loan Guaranty Service, provides a right of
occupancy for a period of not less than 50 years: Provided, The title
to such estate or interest is or shall be such as is acceptable to
prudent lending institutions, informed buyers, title companies, and
attorneys, generally, in the community.
(37 FR 282, Jan. 8, 1972, as amended at 42 FR 43835, Aug. 31, 1977)
38 CFR 8a.2 Maximum amount of insurance.
(a) Each eligible veteran is authorized up to a maximum of $40,000 in
Veterans Mortgage Life Insurance (VMLI) to insure his or her life during
periods he or she is obligated under a mortgage loan, except that, as to
an individual housing unit, whenever there is a reduction in the actual
amount of insurance in force as provided for in 8a.4(b) of this title,
the amount of Veterans Mortgage Life Insurance thereafter available to
insure the life of the same veteran on the same housing unit is
permanently reduced by a like amount.
(b) The maximum amount of insurance in force on any one life at one
time shall not exceed the lesser of the following amounts:
(1) $40,000.
(2) For insurance issued prior to December 24, 1987, the reduced
maximum amount of insurance then available to an eligible veteran.
(3) The amount of the unpaid principal of the mortgage loan
outstanding on the date of approval of the grant on a housing unit then
owned and occupied by the eligible veteran, or on a housing unit being
or to be constructed or remodeled for the eligible veteran, and such
initial amount of insurance may be adjusted upward, subject to the
maximum insurance available to the eligible veteran, or downward,
depending upon the amount of the mortgage loans outstanding on the date
of full disbursement of the grant, or on the date of final settlement of
the purchase, construction, or remodeling agreement, whichever date is
the later date.
(4) Where an eligible veteran ceases to own the housing unit
purchased or adapted in part with a grant, or subsequently acquired
housing unit which was subject to a mortgage loan that resulted in his
or her life being insured under Veterans Mortgage Life Insurance, and
becomes obligated under a mortgate loan on another housing unit occupied
or to be occupied by the eligible veteran, the amount of the unpaid
principal outstanding on the mortgage loan on the newly acquired housing
unit on the date insurance hereunder is placed in effect.
(5) Where an eligible veteran incurs or refinances a mortgage loan,
subject to the provisions of paragraph (a) of this section, the amount
of the incurred or refinanced mortgage loan.
(6) Where the title to a housing unit is or will be vested in an
eligible veteran and his or her spouse, the amount of insurance shall
not exceed the principal amount of the outstanding mortgage loans. If
title to an undivided interest in a housing unit is or will be vested in
a person other than the spouse of an eligible veteran, the amount of
Veterans Mortgage Life Insurance or his or her life shall be computed to
be such part of the total of the unpaid principal of the loan
outstanding on the housing unit as is proportionate to the undivided
interest of the veteran in the entire property.
(7) All claims, arising out of the deaths of insured veterans
occurring prior to October 1, 1976, shall be subject to the $30,000
lifetime maximum amount of insurance then in effect.
(8) All claims, arising out of the deaths of insured veterans
occurring prior to (date of final publication), shall be subject to the
provisions of paragraph (a) of this section then in effect which limited
the amount of Veterans Mortgage Life Insurance coverage to a lifetime
maximum per eligible veteran.
(c) Any eligible veteran who prior to October 1, 1976, was covered by
$30,000 Veterans Mortgage Life Insurance and who on that date became
eligible to have his or her coverage increased may elect to retain the
lesser amount of coverage he or she had in effect prior to that date.
(Authority: 38 U.S.C. 501, 2106)
(52 FR 48682, Dec. 24, 1987)
38 CFR 8a.3 Effective date.
(a) Where the grant was approved prior to August 11, 1971, Veterans
Mortgage Life Insurance shall be effective August 11, 1971, if on that
date, the eligible veteran was obligated under a mortgage loan, and any
such eligible veteran is automatically insured, unless he or she elects
in writing not to be insured, or fails to respond within 60 days after
the date a final request is made or mailed to the eligible veteran for
information on which his or her premium can be based.
(b) Where the grant is approved on or after August 11, 1971, Veterans
Mortgage Life Insurance shall be effective on the date of approval of
the grant, if on that date the eligible veteran is obligated under a
mortgage loan, and any such eligible veteran is automatically insured,
unless he or she elects in writing not to be insured, or fails to
respond within 60 days after the date a final request is made or mailed
to the eligible veteran for information on which his or her premium can
be based.
(c) In any case in which a veteran would have been eligible for
Veterans Mortgage Life Insurance on August 11, 1971, or on the date of
approval of his or her grant, whichever date is the later date, but such
insurance did not become effective because he or she was not obligated
under a mortgage loan on that date, or because he or she elected in
writing not to be insured, or failed to timely respond to a request for
information on which his or her premium could be based, the insurance
will be effective on a date agreed upon by the veteran and the
Secretary, but only if the veteran files an application in writing with
the Department of Veterans Affairs for such insurance, submits evidence
that he or she meets the health requirements of the Secretary, together
with information on which his or her premiums can be based, and is or
becomes obligated under a mortgage loan upon the date agreed upon as the
effective date of his or her insurance.
(d) In any case in which an eligible veteran disposes of the housing
unit purchased, constructed or remodeled in part with a grant, or a
subsequently acquired housing unit, and becomes obligated under a
mortgage loan on another housing unit occupied or to be occupied by the
eligible veteran, the insurance will be effective upon a date requested
by the veteran and agreed to by the Secretary, but only if the eligible
veteran files an application for such insurance, submits evidence that
he or she meets the health requirements of the Secretary, furnishes
information on which his or her premium can be based, and is or becomes
obligated under a mortgage loan on the date the insurance is to become
effective.
(e) In any case where an eligible veteran insured under Veterans
Mortgage Life Insurance, refinances the mortgage loan which is the basis
for such insurance on his or her life, any increase in the amount of
insurance or any delay in the rate of reduction of insurance will be
effective only if the eligible veteran files an application for
insurance, submits evidence that he or she meets the health requirements
of the Secretary, and furnishes information on which his or her premium
can be based.
(42 FR 43835, Aug. 31, 1977)
38 CFR 8a.4 Coverage.
(a) Veterans Mortgage Life Insurance shall provide protection against
the death of an eligible veteran insured thereunder, but only if death
occurs while such insurance is in force.
(b) The amount of Veterans Mortgage Life Insurance in force on his or
her life at any one time shall be reduced simultaneously (1) with the
reduction in the principal of the mortgage loan, whether or not the
mortgage loan is amortized, and (2) in addition, if the mortgage loan is
amortized, according to the schedule for the reduction of the principal
of the mortgage loan whether or not the schedule payments are timely
made.
(c) If the amount of the mortgage loan exceeds $40,000, or the
reduced maximum amount of insurance available to an eligible veteran,
whichever amount is the lesser, the amount of insurance in force on the
life of the veteran shall remain at a constant level until the principal
amount of the mortgage loan which is basis for establishing the amount
of insurance is reduced to $40,000, or to the amount of the reduced
maximum amount of insurance available to the veteran, at which time the
amount of insurance in force on his or her life shall be reduced in
accordance with the schedule for the reduction of the principal of the
mortgage loan, and whether or not the scheduled payments are timely
made.
(d) Subject to the $40,000 maximum amount of insurance, and to the
reduced maximum amount of insurance available to the eligible veteran,
he or she is entitled to be insured under Veterans Mortgage Life
Insurance or to apply for such insurance as often as he or she becomes
obligated under a mortgage loan or a refinanced mortgage loan on a
housing unit or a successor housing unit owned and occupied by the
eligible veteran. Where a veteran who is not automatically insured
under Veterans Mortgage Life Insurance applies for such insurance, he or
she shall be required to meet the health standards and other conditions
established by the Secretary for such insureds.
(Authority: 38 U.S.C. 501, 2106)
(37 FR 282, Jan. 8, 1972, as amended at 42 FR 43836, Aug. 31, 1977;
52 FR 48682, Dec. 24, 1987)
38 CFR 8a.5 Beneficiaries.
Any amount of Veterans Mortgage Life Insurance in force on the date
of death of an eligible veteran shall be paid only to the holder of the
mortgage loan. If the Secretary is the holder of the mortgage loan, the
insurance proceeds shall be credited to the loan indebtedness and, as
appropriate, deposited in either the direct loan or the loan guaranty
revolving fund established by section 3723 or 3724 of title 38,
respectively. If there is more than one mortgage loan on a housing unit
at the time the insurance matures, the proceeds will be payable to the
holder of the mortgage loans in the order of the priority of the liens.
38 CFR 8a.6 Payment of premiums.
Premiums for Veterans Mortgage Life Insurance will be established by
the Secretary and based on such mortality data as appropriate to cover
only the mortality cost of insuring standard lives. If the veteran is
receiving compensation or other cash benefits from the Department of
Veterans Affairs, the necessary premiums will be deducted from such
payments. If the veteran is not receiving payments from the Department
of Veterans Affairs, premiums must be paid directly by the veterans to
the insurer.
38 CFR 8a.7 Termination.
Veterans Mortgage Life Insurance shall terminate upon whichever of
the following events first occurs:
(a) Satisfaction of the veteran's indebtedness under the mortgage
upon which the loan is based.
(b) The veteran's 70th birthday.
(c) Termination of the veteran's ownership of the property securing
the mortgage.
(d) Request of the veteran.
(e) Discontinuance of payment of premiums by the veteran.
(f) Discontinuance of the entire insurance contract or agreement.
38 CFR 8a.7 PART 9 -- SERVICEMEN'S GROUP LIFE INSURANCE AND VETERANS'
GROUP LIFE INSURANCE
Sec.
9.1 Definitions.
9.2 Effective date.
9.3 Applications.
9.4 Amount of insurance.
9.5 Coverage.
9.6 Waiver or reduction of coverage.
9.7 Extension of coverage based on disability.
9.8 Restoration of coverage.
9.10 Deductions from pay.
9.12 Payment for extra hazards.
9.14 Group life insurance fund.
9.16 Beneficiaries and options.
9.17 Taxation and exemption.
9.18 Payment of proceeds.
9.20 Assignments.
9.22 Administrative decisions.
9.24 Termination of coverage.
9.26 Conversion privilege.
9.27 Health standards.
9.28 Criteria for reinsurers and converters.
9.30 Reinsurance formula.
9.32 Actions on the policy.
9.34 Forfeiture.
9.36 Veterans' Group Life Insurance.
Authority: 72 Stat. 1114, 79 Stat. 880, 84 Stat. 326, 88 Stat.
165 (38 U.S.C. 501), Subchapter III, Chapter 19, unless otherwise noted.
Source: 40 FR 4135, Jan. 28, 1975, unless otherwise noted.
38 CFR 9.1 Definitions.
(a) The term member means (1) A person on active duty, active duty
for training, or inactive duty training in the uniformed services in a
commissioned, warrant, or enlisted rank or grade, or as a cadet or
midshipman at the U.S. Military Academy, U.S. Naval Academy, U.S. Air
Force Academy, or the U.S. Coast Guard Academy;
(2) A person who volunteers for assignment to the Ready Reserve of a
uniformed service and is assigned to a unit or position in which he or
she may be required to perform active duty, or active duty for training,
and each year will be scheduled to perform at least twelve periods of
inactive duty training that is creditable for retirement purposes under
chapter 67 of title 10 U.S.C.;
(3) A person assigned to, or who upon application would be eligible
for assignment to, the Retired Reserve of a uniformed service who has
not received the first increment of retirement pay or has not yet
reached 61 years of age and has completed at least 20 years of
satisfactory service creditable for retirement purposes under chapter 67
of title 10 U.S.C.;
(4) A member, cadet, or midshipman of the Reserve Officers Training
Corps while attending field training or practice cruises; and
(5) A person whose coverage is extended after termination of duty
under 9.5(a) or under 9.7(a) or (b).
(b) The term active duty means (1) Full-time duty in the Armed
Forces, other than active duty for training;
(2) Full-time duty (other than for training purposes) as a
commissioned officer of the Regular or Reserve Corps of the Public
Health Service;
(3) Full-time duty as a commissioned officer of the National Oceanic
and Atmospheric Administration;
(4) Full-time duty as a cadet or midshipman at the U.S. Military
Academy, U.S. Naval Academy, U.S. Air Force Academy, or the U.S. Coast
Guard Academy.
(c) The term Armed Forces means the U.S. Army, Navy, Air Force,
Marine Corps, Coast Guard and the Reserves thereof.
(d) The term active duty for training means (1) Full-time duty in the
Armed Forces performed by Reserves for training purposes;
(2) Full-time duty for training purposes performed as a commissioned
officer of the Reserve Corps of the Public Health Service;
(3) Full-time duty as a member, cadet, or midshipman of the Reserve
Officers Training Corps while attending field training or practice
cruises; and
(4) In the case of members of the Army National Guard or Air National
Guard of any State, full-time duty under sections 316, 502, 503, 504, or
505 of title 32 U.S.C.
(e) The term inactive duty training means (1) Duty (other than
full-time duty) prescribed or authorized for Reserves (including
commissioned officers of the Reserve Corps of the Public Health Service)
which duty is scheduled in advance by competent authority to begin at a
specific time and place; and
(2) In the case of a member of the Army National Guard or Air
National Guard of any State, such term means duty (other than full-time
duty) which is scheduled in advance by competent authority to begin at a
specific time and place under sections 316, 502, 503, 504, or 505 of
title 32 U.S.C.
(f) The terms active duty for training and inactive duty training do
not include duty performed as a temporary member of the Coast Guard
Reserve, and the term inactive duty training does not include (1) work
or study performed in connection with correspondence courses; or (2)
attendance at an educational institution in an inactive status.
(g) The term uniformed services means the Army, Navy, Air Force,
Marine Corps, Coast Guard, including in each instance the corresponding
Reserve and Reserve Officers Training Corps, if any, and in the case of
the Army, including the Army National Guard and in the case of the Air
Force, the Air National Guard. Also included are the commissioned corps
of the Public Health Service and its Reserve Corps and the commissioned
corps of the National Oceanic and Atmospheric Administration.
(h) The term policy means Group Policy No. G-32000, effective
September 29, 1965, purchased pursuant to subchapter III of chapter 19,
title 38 U.S.C., from the insurer, which was executed and attested on
December 30, 1965, and amended on May 24, 1974.
(i) The term insurer means the commercial life insurance company or
companies selected under 38 U.S.C. 1966 to provide insurance coverage
specified in the policy.
(j) The term administrative office means the Office of Servicemen's
Group Life Insurance located at 213 Washington Street, Newark, NJ 07102,
which is the administrative office established pursuant to 38 U.S.C.
1966(b) by the insurer.
(k) The term reinsurer means any life insurance company meeting
established criteria as set forth in 9.28 which reinsures a portion of
the total amount of insurance covered by the policy and issues
individual life insurance policies in accordance with 9.26.
(l) The term converter means any life insurance company meeting
criteria set forth in 9.28 which issues individual life insurance
policies in accordance with 9.26.
(m) The term coverage means Servicemen's Group Life Insurance or
Veterans' Group Life Insurance payable upon death occurring while the
member is insured under the policy.
(n) The term termination of duty means (1) In the case of active duty
or active duty for training being performed under a call or order that
does not specify a period of less than 31 days-discharge, release or
separation from such duty.
(2) In the case of other duty -- the member's release from his or her
obligation to perform any duty in his or her uniformed service (active
duty, or active duty for training or inactive duty training) whether
arising from limitations included in a contract of enlistment or similar
form of obligation or arising from resignation, retirement or other
voluntary action by which the obligation to perform such duty ceases.
(o) The term waive or waiver means an election in writing signed by a
member and received by the uniformed service not to be insured under the
policy.
(p) The term break in service means the situation(s) in which: (1) A
member terminates duty or obligation to perform duty in one service and
enters on duty or assumes the obligation to perform duty in another
uniformed service, regardless of the length of time intervening.
(2) A member reenters on duty or resumes an obligation to perform
duty as a Reserve in the same uniformed service and 1 calendar day or
more has elapsed following termination of the prior period of duty or
obligation to perform duty.
(q) The term disability means any type of injury or disease whether
mental or physical.
(r) The term total disability means any impairment of mind or body
which continuously renders it impossible for the insured to follow any
substantially gainful occupation. Without prejudice to any other cause
of disability, the permanent loss of the use of both feet, of both
hands, or of both eyes, or of one foot and one hand, or of one foot and
one eye, or of one hand and one eye, or the total loss of hearing of
both ears, or the organic loss of speech shall be deemed to be total
disability. Organic loss of speech will mean the loss of the ability to
express oneself, both by voice and whisper, through the normal organs of
speech if such loss is caused by organic changes in such organs. Where
such loss exists, the fact that some speech can be produced through the
use of an artificial appliance or other organs of the body will be
disregarded.
(s) The following definitions of the terms widow, widower, child and
parent for Servicemen's Group Life Insurance or Veterans' Group Life
Insurance purposes apply only to such insurance on the life of an
insured member who dies on or after December 15, 1971.
(1) The term widow or widower means a person who is the lawful spouse
of the insured member at the time of his or her death.
(2) The term child means a legitimate child, a legally adopted child,
an illegitimate child as to the mother, or an illegitimate child as to
the alleged father, only if (i) he acknowledged the child in writing
signed by him; or (ii) he has been judicially ordered to contribute to
the child's support; or (iii) he has been, before his death, judicially
decreed to be the father of such child; or (iv) proof of paternity is
established by a certified copy of the public record of birth or church
record of baptism showing that the insured was the informant and was
named as father of the child; or (v) proof of paternity is established
from service department or other public records, such as school or
welfare agencies, which show that with his knowledge the insured was
named as the father of the child.
(3) The term parent means a father of a legitimate child, mother of a
legitimate child, father through adoption, mother through adoption,
mother of an illegitimate child, and father of an illegitimate child but
only if (i) he acknowledged paternity of the child in writing signed by
him before the child's death; or (ii) he has been judicially ordered to
contribute to the child's support; or (iii) he has been judicially
decreed to be the father of such child; or (iv) proof of paternity is
established by a certified copy of the public record of birth or church
record of baptism showing the claimant was the informant and was named
as father of the child; or (v) proof of paternity is established from
service department or other public records, such as school, or welfare
agencies, which show that with his knowledge the claimant was named as
father of the child. No person who abandoned or willfully failed to
support a child during his or her minority, or consented to his or her
adoption may be recognized as a parent for the purpose of the
Servicemen's Group Life Insurance or Veterans' Group Life Insurance
program. However, the immediately preceding sentence shall not be
applied so as to require duplicate payments in any case in which
insurance benefits have been paid prior to receipt by the Office of
Servicemen's Group Life Insurance of sufficient evidence to clearly
establish that the person so paid could not qualify as a parent solely
by reason of such sentence.
(40 FR 4135, Jan. 28, 1975, as amended at 53 FR 17698, May 18, 1988)
38 CFR 9.2 Effective date.
(a) The effective date of Servicemen's Group Life Insurance coverage
for each member then on active duty, active duty for training, or
inactive duty training is April 6, 1991. The date is controlled by the
local standard time of the member's then physical location.
(Authority: 38 U.S.C. 1967)
(b) The effective date of Servicemen's Group Life Insurance coverage
for each member entering on active duty, active duty for training, or
inactive duty training after April 6, 1991, is the first day of such
duty unless the member has elected in writing not to be covered.
(Authority: 38 U.S.C. 1967)
(c) The effective date of Servicemen's Group Life Insurance coverage
for members assigned to, or who upon application would be eligible for
assignment to the Retired Reserve of a uniformed service, who have not
received the first increment of retirement pay, or have not reached 61
years of age and have completed at least 20 years of satisfactory
service creditable for retirement purposes under chapter 67 of title 10,
shall be the date the initial premium, or acceptable application, if
required, is mailed or otherwise delivered to the administrative office.
The coverage will not be effective in any event prior to the 121st day
after the member's separation or release from assignment in the Ready
Reserves or if coverage is extended because of total disability, 1 year
after such separation or release, or the end of the total disability
whichever is the earlier date.
(d) The effective date of Veterans' Group Life Insurance will be as
follows:
(1) For those members separated or released on or after August 1,
1974, from a period of active duty or active duty for training under a
call or order which does not specify a period of less than 31 days, the
121st day after such separation or release provided the initial premium
is mailed or otherwise delivered to the administrative office on or
before the 120th day after separation or release for such duty. If
coverage is extended because of total disability under 9.7, the
effective date will be 1 year after the date of such separation or
release or the end of the total disability, whichever is the earlier
date.
(2) For the members separated or released from a period of active
duty or active duty for training under a call or order that specifies a
period of less than 31 days, or a period of inactive duty for training
and during such period of duty suffered an injury or disability which
renders them uninsurable at standard premium rates, the coverage will be
effective the 121st day after such separation or release provided the
initial premium and proof of disability is submitted before the 120th
day after such release or separation.
(3) For those members separated or released from a period of duty
prior to August 1, 1974, which gave the member a conversion privilege,
the coverage will be effective the date the initial premium, application
and proof of good health is mailed or otherwise submitted to the
administrative office.
(4) The effective date for Servicemen's Group Life Insurance and
Veterans' Group Life Insurance in all cases not covered by paragraph (d)
(1) or (2) of this section shall be the date an acceptable application
and premium are submitted or otherwise mailed to the administrative
office.
(40 FR 4135, Jan. 28, 1975, as amended at 48 FR 8070, Feb. 25, 1983;
53 FR 17698, May 18, 1988; 57 FR 11910, Apr. 8, 1992)
38 CFR 9.3 Applications.
(a) Members who met the requirements for full-time coverage under
9.1(a)(3), as of May 24, 1974, are eligible to be insured for
Servicemen's Group Life Insurance upon payment of the initial premium to
the administrative office provided such premium is submitted prior to
June 1, 1975. On and after June 1, 1975, the member is eligible for
coverage provided an application, evidence of insurability and the
initial premium is submitted to the administrative office prior to June
1, 1976.
(b) Members who have full-time coverage under 9.1(a)(2) and qualify
for coverage under 9.1(a)(3) may continue such coverage after
separation or release from this reserve obligation upon payment of the
initial premium within 120 days after such release to the administrative
office. If coverage is continued under 9.7(a) the initial premium
should be submitted within 1 year after such release. Any member who is
not entitled to full-time coverage under 9.1(a)(2) but qualifies for
coverage under 9.1(a)(3) after May 24, 1974, is eligible for such
coverage provided the initial premium is submitted to the administrative
office within 120 days after becoming so qualified. If the initial
premium is not submitted within the time limits set forth in this
paragraph, the coverage may be granted provided an application, evidence
of insurability and the initial premium are submitted within 1 year
after the member's Servicemen's Group Life Insurance coverage is
terminated or he or she qualifies for such coverage.
(c) A member separated or released from active duty or active duty
for training under a call or order which did not specify a period of
less than 31 days is eligible to be granted Veterans' Group Life
Insurance in an amount not to exceed his or her Servicemen's Group Life
Insurance provided the initial premium is submitted to the
administrative office within 120 days of such separation or release, or
1 year if the requirements of 9.7 are met. If the initial premium is
not submitted within the time limits set forth in this paragraph, the
member may be granted Veterans' Group Life Insurance provided an
application, the initial premium and evidence of insurability is
submitted within 1 year after the member's Servicemen's Group Life
Insurance coverage is terminated.
(d) A member who, while performing active duty or active duty for
training under a call or order specifying a period of less than 31 days,
or inactive duty for training scheduled in advance by competent,
authority including travel directly to or from any such duty, suffers an
injury, or disability or aggravation of a preexisting disability or
injury that renders the member uninsurable at standard premium rates,
may be granted Veterans' Group Life Insurance in an amount not to exceed
his or her Servicemen's Group Life Insurance provided the initial
premium and proof of such injury or disability is submitted to the
administrative office within 120 days after such training is terminated.
(Authority: 38 U.S.C. 1968(b), 1977(a))
(e) Members who met the requirements for full-time Servicemen's Group
Life Insurance coverage under 9.1(a)(3) or Veterans' Group Life
Insurance coverage under 9.3(f) as of May 1, 1991, are eligible to
obtain increased coverage up to a maximum of $100,000 if the member --
(1) Is insured under Servicemen's Group Life Insurance or Veteran's
Group Life Insurance as of May 1, 1991; or
(2) Within one year after May 1, 1991, reinstates Servicemen's Group
Life Insurance or Veterans' Group Life Insurance that had lapsed for
nonpayment of premiums; and
(3) The member submits a written application for the increased
coverage to the office established in 9.1(j) within one year after May
1, 1991.
(Authority: 38 U.S.C. 1977)
(f) Members of the Individual Ready Reserve and the Inactive National
Guard are eligible to be granted Veterans' Group Life Insurance provided
an application together with the initial premium are submitted to the
administrative office within 120 days of becoming a member of either
organization. If an application and the initial premium are not
submitted within the 120-day period as set forth in this paragraph,
Veterans' Group Life Insurance may still be granted provided an
application, the initial premium and evidence of insurability are
submitted within one year of the expiration of the initial 120-day
period.
(Authority: 38 U.S.C. 1977)
(40 FR 4135, Jan. 28, 1975, as amended at 48 FR 8070, Feb. 25, 1983;
53 FR 17698, May 18, 1988; 54 FR 37757, Sept. 28, 1988; 57 FR 11910,
Apr. 8, 1992)
38 CFR 9.4 Amount of insurance.
Effective April 6, 1991, Servicemen's Group Life Insurance is issued
in the amount of $100,000 unless the insured member elects in writing --
(a) To not be insured, or
(b) To be insured in any lesser amount evenly divisible by $10,000.
The $100,000 coverage does not apply to those members separated or
released prior to April 6, 1991, except for those members eligible for
coverage under 9.1(a)(3) of this part.
(Authority: 38 U.S.C. 1967)
(57 FR 11910, Apr. 8, 1992)
38 CFR 9.5 Coverage.
(a) Full-time coverage. For a member performing active duty or
active duty for training under a call or order which does not specify a
period of less than 31 days, or a member who meets the requirements of
9.1(a) (2) or (3), coverage is effective during the period of such duty
or status, and except for those members who qualify under 9.1(a)(3),
for 120 days following separation or release from such duty, or up to 1
year if the requirements of 9.7(a) are met.
(b) Part-time coverage. (1) For a member who does not qualify for
full-time coverage performing active duty or active duty for training
under a call or order that specifies a period of less than 31 days,
coverage is in effect from the first day of such duty through midnight
local time of the last day of such duty; and, if the member is
disabled, coverage may be extended for 120 days under 9.7(b).
(2) For a member who does not qualify for full-time coverage
performing inactive duty training, coverage is in effect from the
beginning of the scheduled training period through the end of the
scheduled training period; and, if the member is disabled, coverage may
be extended for 120 days under 9.7(b).
(3) A member not eligible for full-time coverage who, when authorized
or required by competent authority, assumes an obligation to perform
(for less than 31 days) active duty, or active duty for training, or
inactive duty training scheduled in advance by competent authority and
who is rendered uninsurable at standard premium rates according to good
health standards approved by the Secretary of Veterans Affairs, or dies
within 120 days thereafter, from a disability, or aggravation of a
preexisting disability, incurred by the member while proceeding directly
to or returning directly from such active duty, active duty for
training, or inactive duty training, as the case may be, shall be deemed
to have been on active duty, active duty for training, or inactive duty
training, as the case may be; and to have been insured at the time such
disability was incurred or aggravated, and if death occurs within 120
days thereafter as a result of such disability, to have been insured at
the time of death. In determining whether or not such individual was so
authorized or required to perform such duty, and whether or not the
member was rendered uninsurable or died within 120 days thereafter from
a disability incurred or aggravated, there shall be taken into account
the call or order to duty, the orders and authorizations of competent
authority, the hour on which the member began to so proceed or to
return, the hour on which he or she was scheduled to arrive for, or on
which he or she ceased to perform such duty, the method of travel
employed, his or her itinerary, the manner in which the travel was
performed, and the immediate cause of disability or death. Whenever any
claim is filed alleging that the claimant is entitled to benefits by
reason of 38 U.S.C. 1967(b), the burden of proof shall be on the
claimant.
(c) Arrest or confinement. Arrest or confinement of a member covered
under paragraph (a) of this section by military or civil authority does
not terminate coverage, except as specified in 9.24(a).
(d) Members in missing status. With respect to an individual carried
in a missing status by a uniformed service and found to have died while
in such missing status, the date of the member's death for purposes of
coverage and the amount thereof shall be established as follows:
(1) If the member was in a missing status on September 29, 1965, and
is determined to have died by the uniformed service prior to June 25,
1970, the date of death shall be that date determined by the Secretary
concerned for ending the crediting of pay and allowances as provided in
37 U.S.C. 555.
(2) If a member was in a missing status on June 25, 1970, and is
determined to have died, the date of death shall be that date determined
by the Secretary concerned for ending the crediting of pay and
allowances as provided in 37 U.S.C. 555.
(3) Insurance in force on the date of death as determined under
paragraphs (d) (1) and (2) of this section shall not be payable to a
beneficiary who as a result of the member's death received a gratuity
payment under Pub. L. 89-214 (79 Stat. 880) unless such beneficiary
agrees to refund the amount of the gratuity received.
38 CFR 9.6 Waiver or reduction of coverage.
(a) A member may waive his or her right to group coverage or elect to
reduce the amount of insurance from the statutory maximum to any lesser
amount evenly divisible by $10,000 by filing a written notice with his
or her uniformed service. In any case where a member's uniformed
service receives a waiver or reduction prior to the date any group
coverage would become effective, no insurance shall be placed in effect
on the lives of those members who waive coverage and those who elect
reduced coverage shall be insured for only the reduced amount from the
date coverage becomes effective. A member who is paying premiums
directly to the administrative office may reduce his or her coverage by
notifying that office.
(Authority: 38 U.S.C. 1967)
(b) Full-time coverage, 9.5(a), in effect before a waiver or
reduction is filed will terminate or be reduced at midnight of the last
day of the month such notice is received by a member's uniformed
service. Where a waiver or reduction is filed for full-time coverage,
it is effective for the entire period of active duty or active duty for
training and for any period of time after termination of duty during
which the coverage is or would be extended. If, following termination
of duty, the member reenters duty (in the same or another uniformed
service) the waiver or reduction will not apply to the subsequent period
of duty. In the case of the member paying premiums direct to the
administrative office, the waiver or reduction will be effective as of
the end of the premium month for which the last full premium was paid.
(c) Part-time coverage, 9.5(b) (1) or (2), will terminate or be
reduced at the end of the last day of the period of duty then being
performed if the member is on active duty or active duty for training
when the waiver or reduction is filed; at the end of the period of
inactive duty training then being performed if the member is on inactive
duty training when the waiver or reduction is filed; or on the date the
waiver or reduction is received by his or her uniformed service if the
member is not on active duty, active duty for training; or inactive
duty training on the date the waiver or reduction is filed.
(1) When a member insured under part-time coverage, 9.5(b) (1) or
(2), waives his or her right to group coverage or elects a reduced
amount of insurance, such waiver or election, unless changed, is
effective throughout the period of the member's continuous reserve
obligation in the same uniformed service. If, following termination of
duty, the member reenters duty or resumes the obligation to perform duty
(in the same or another uniformed service), the waiver or reduction will
not apply to the subsequent period of duty or obligation.
(2) If a reservist insured under part-time coverage, 9.5(b) (1) or
(2), is called or ordered to active duty or active duty for training
under a call or order that does not specify a period of less than 31
days and is separated or released from such duty and then resumes his or
her reserve obligation, any waiver or election of reduced coverage made
while eligible for part-time coverage, unless changed, shall be
effective throughout the entire period of part-time coverage, the active
duty or active duty for training period and 120 days thereafter and the
period of immediately resumed reserve obligation.
(3) If a member, other than a member referred to in paragraph (c)(2)
of this section, upon termination of duty qualifying him or her for
full-time coverage under 9.5(a) assumes an obligation to perform duty
as a reservist, any waiver or election previously made by the member
shall not apply to coverage arising from his or her reservist
obligation. Furthermore, during the 120 days following termination of
such duty the full-time coverage shall not be reduced by any waiver or
election made by a member as a reservist.
(40 FR 4135, Jan. 28, 1975, as amended at 48 FR 8070, Feb. 25, 1983;
53 FR 17698, May 18, 1988)
38 CFR 9.7 Extension of coverage based on disability.
(a)(1) Coverage of any member of the uniformed services on active
duty or active duty for training on or after June 25, 1970, under a call
or order to duty that does not specify a period of less than 31 days, or
a member as defined under 9.1(a)(2) on or after May 24, 1974, who is
totally disabled at separation or release from such duty shall continue
for 1 year after the date of separation or release from such duty, or
until and including the date the insured ceases to be totally disabled,
whichever is the earlier date, without further premium payments, but in
no event shall such coverage cease prior to the expiration of 120 days
after such separation or release. If a member insured under the
provisions of law in effect prior to June 25, 1970, was separated or
released from duty on or after February 25, 1970, but before June 25,
1970, and was totally disabled on the date of separation or release from
such duty and such total disability continues beyond the 120-day period
after separation or release the amount of coverage in effect at the time
of separation or release from duty continues for 1 year after the date
of separation or release from duty or until and including the date the
member ceases to be totally disabled, whichever is earlier.
(2) If a member whose coverage is extended under paragraph (a)(1) of
this section converts the group insurance ( 9.26) to an individual
policy which is effective before he or she ceases to be totally disabled
or before the end of 1 year following termination of duty, whichever is
earlier, and dies while group insurance would be in effect, except for
such conversion, the group insurance will be payable, provided the
individual policy is surrendered for a return of premiums and without
further claim. When there is no such surrender, any amount of group
insurance in excess of the amount of the individual policy will be
payable.
(b) Coverage of any member on active duty, or active duty for
training under a call or order to duty that specifies a period of less
than 31 days, or on inactive duty training on or after May 24, 1974,
who, while so covered, incurs a disability or aggravation of a
preexisting disability, is extended to death if the member dies within
120 days thereafter as the result of such disability, or for 120 days
following the end of the duty period during which the disability was
incurred or aggravated if such disability renders the member uninsurable
at standard premium rates under good health standards referred to in
9.27.
38 CFR 9.8 Restoration of coverage.
(a) Coverage is automatically restored without evidence of good
health when subsequent to termination of all duty in his or her
uniformed service, a member reenters on duty (in the same or another
uniformed service) even when there is no break in service.
(b) Coverage that has been terminated under 9.24 because of (1)
absence without leave, (2) confinement by civil authorities under a
sentence adjudged by a civilian court, or (3) confinement by military
authorities under a court-martial sentence involving total forfeiture of
pay and allowance shall be automatically revived, together with any
beneficiary designation for such insurance as of the date the member is
restored to active duty with pay or active duty for training with pay.
(c) Subject to approval by the insurer, coverage is restored in the
amount applied for (the statutory maximum or a lesser amount evenly
divisible by $10,000) effective the date of receipt of application with
evidence of good health by the uniformed service:
(1) For a member who previously waived the right to be covered or
elected to be covered for less than the statutory maximum; or
(2) For a member who forfeited the right to be covered for one of the
offenses listed in 9.34 of this part but who was restored to duty under
conditions which, in effect, result in a remission of sentence.
(Authority: 38 U.S.C. 501, 1967(c))
(40 FR 4135, Jan. 28, 1975, as amended at 53 FR 17698, May 18, 1988)
38 CFR 9.10 Deductions from pay.
(a) During any period in which a member on active duty or active duty
for training under a call or order to such duty that does not specify a
period of less than 31 days, or a member who qualifies for coverage
under 9.1(a)(2), is insured under a policy of insurance purchased under
38 U.S.C. 1966 there shall be deducted each month from his or her basic
or other pay until separation or release from such duty an amount (which
shall be the same for all such members) determined as the share of the
cost attributable to insuring such member under such policy, less any
costs traceable to the extra hazard of such duty in the uniformed
service.
(b) During any fiscal year, or portion thereof, that a member is on
active duty or active duty for training under a call or order to such
duty that specifies a period of less than 31 days, or is authorized or
required to perform inactive duty training scheduled in advance by
competent authority and is insured under a policy of insurance purchased
by the Secretary of Veterans Affairs under 38 U.S.C. 1966, the Secretary
concerned shall collect from him or her (by deduction from pay or
otherwise) an amount (which shall be the same for all such members)
determined as the share of the cost attributable to insuring such member
under such policy, less any costs traceable to the extra hazard of such
duty in the uniformed service.
(c) Any amount not deducted from the basic or other pay of an insured
member, or collected from him or her by the Secretary concerned, if not
otherwise paid, shall be deducted from the proceeds of any insurance
thereafter payable. The initial monthly amount or fiscal year amount to
be charged for insurance may be continued from year to year, except that
the Secretary of Veterans Affairs may redetermine such monthly or fiscal
year amounts from time to time in accordance with experience. No
refunds will be made to any member of any amount properly deducted from
his or her basic or other pay, or otherwise collected from him or her by
the Secretary concerned, to cover the cost of the insurance granted.
(d) Premiums for coverage granted to members who qualify under
9.1(a)(3) (Retired Reservists) and Veterans' Group Life Insurance are
payable directly to the administrative office by the individual
insureds.
(e) During any month in which a member is assigned to the Ready
Reserve of a uniformed service under conditions which meet the
qualifications of 9.1(a)(2), or is assigned to the Reserve (other than
the Retired Reserve) and meets the qualifications of 9.1(a)(2), and is
insured under Servicemen's Group Life Insurance, there shall be
contributed from the appropriation made for active duty pay of the
uniformed service concerned an amount determined by the Secretary of
Veterans Affairs (which shall be the same for all such members) as the
share of the cost attributable to insuring such member, less any costs
traceable to the extra hazards of such duty in the uniformed services.
Any amounts so contributed on behalf of any individual shall be
collected by the Secretary concerned from such individual (by deduction
from pay or otherwise) and shall be credited to the appropriation from
which such contribution was made.
(Authority: 38 U.S.C. 1969)
(f) The Secretary of Defense shall prescribe regulations for the
administration of the functions of the Secretaries of the military
departments under this section. Such regulations shall prescribe such
procedures as the Secretary of Defense, after consultation with the
Secretary of Veterans Affairs, may consider necessary to ensure that
such functions are carried out in a timely and complete manner and in
accordance with the provisions of this section, including specifically
the provisions of paragraph (e) relating to contributions from
appropriations made for active duty pay.
(Authority: 38 U.S.C. 1969)
(40 FR 4135, Jan. 28, 1975, as amended at 48 FR 8071, Feb. 25, 1983;
54 FR 34982, Aug. 23, 1989)
38 CFR 9.12 Payment for extra hazards.
For each month for which any member is insured under Group Policy No.
G-32000 there shall be contributed from the appropriation made for
active duty pay of the uniformed service concerned an amount determined
by the Secretary of Veterans Affairs and certified to the Secretary
concerned to be the cost of such insurance which is traceable to the
extra hazard of duty in the uniformed services. Effective January 1,
1970, such cost shall be determined by the Secretary of Veterans Affairs
on the basis of the excess mortality incurred by insured members and
former members of the uniformed services above what their mortality
would have been under peacetime conditions as such mortality is
determined by the Secretary of Veterans Affairs using such methods and
data as the Secretary shall determine to be reasonable and practicable.
The Secretary of Veterans Affairs is authorized to make such adjustments
regarding contributions from pay appropriations as may be indicated from
actual experience.
(40 FR 4135, Jan. 28, 1975, as amended at 53 FR 37757, Sept. 28,
1988; 54 FR 34982, Aug. 23, 1989)
38 CFR 9.14 Group life insurance fund.
(a) All amounts deducted from the pay of insured members or otherwise
paid and all contributions to cover extra hazard costs made from
appropriations of the Departments of Defense; Commerce; Health,
Education and Welfare; and Transportation; together with any income
derived from dividends or premium rate or extra hazard cost adjustment
received from the insurer will be credited directly to a revolving fund
in the Treasury of the United States, known as the Servicemen's Group
Life Insurance Fund. All premium payments and extra hazard cost
contributions on the policy and the administrative cost to the
Department of Veterans Affairs will be paid directly from such fund.
(b) Administrative cost to the Department of Veterans Affairs
properly allocable to Servicemen's Group Life Insurance and Veterans'
Group Life Insurance will be determined from time to time and the amount
representing such cost will be transferred from the Servicemen's Group
Life Insurance Fund to the appropriation ''General Operating Expenses'',
Department of Veterans Affairs.
38 CFR 9.16 Beneficiaries and options.
(a) A member may designate any person, firm, corporation or legal
entity (including the estate of the member), individually or as trustee,
as beneficiary.
(b) Any designation of beneficiary or election of optional settlement
made by any member insured under Servicemen's Group Life Insurance for
full-time coverage or part-time coverage will remain in effect, until
properly changed by the member or automatically canceled, under the
following rules:
(1) If the insurance terminates following separation or release from
all duty in a uniformed service.
(2) If the member enters on duty in another uniformed service.
(3) If the member reenters on duty in the same uniformed service more
than 1 calendar day after separation or release from all duty in that
uniformed service.
(c) If the member acquires Veterans' Group Life Insurance effective
on the day following termination of his or her Servicemen's Group Life
Insurance, any beneficiary designation in effect from the Servicemen's
Group Life Insurance shall be considered a designation of beneficiary
for Veterans' Group Life Insurance but not for more than 60 days after
the effective date of the Veterans' Group Life Insurance, unless at the
end of the 60-day period, the insured is incompetent in which event such
designation may continue in force until the disability is removed but
not for more than 5 years after the effective date of such insurance.
(d) Any designation or change of beneficiary or election of optional
settlement will take effect only if it is in writing, signed by the
insured and received prior to the death of the insured by his or her
uniformed service or if executed during a period of coverage following
separation or release from duty under 9.5(a) or 9.7 (a) or (b), or for
coverage under 9.1(a)(3) or Veterans' Group Life Insurance by the
administrative office.
(e) A change of beneficiary may be made at any time and without the
knowledge or consent of the previous beneficiary.
(f) No change or cancellation of beneficiary or election of optional
settlement in a last will or testament, or in any other document shall
have any force or effect unless such change is received by the
appropriate office as provided in paragraph (d) of this section.
(g) Until and unless otherwise changed, a beneficiary designation and
settlement option election of record on the date a statutory increase in
coverage takes effect shall be considered to be a beneficiary and
optional settlement election for the increased amount as well, and any
beneficiary named therein shall be entitled to the same percentage (%)
share of the new total coverage amount as that beneficiary was entitled
to prior to the statutory increase in coverage.
(Authority: 38 U.S.C. 501)
(h) In any case in which a member separated or released from all
obligation to perform duty in a uniformed service reenters on duty after
a break in service while covered during the period of protection
afforded under 9.5(a) or 9.7(a) or (b) of this part after termination
of duty and waives coverage or elects less coverage than was carried
prior to reentry on duty, an existing designation of beneficiary or
election of optional settlement is not canceled with respect to any
amount of insurance not replaced upon such reentry on duty.
(Authority: 38 U.S.C. 1967)
(i) The insurance proceeds will be paid to the person or persons
surviving the insured member in the following order of precedence:
(1) To the beneficiary or beneficiaries designated (see paragraph (d)
of this section).
(2) If there be no such beneficiary, to the widow or widower.
Notwithstanding the provisions of any other law, payment of matured
Servicemen's Group Life Insurance or Veterans' Group Life Insurance
benefits may be made directly to a minor widow or widower on his or her
own behalf, and payment in such case shall be a complete acquittance to
the insurer;
(3) If none of the above, to the child or children and descendants of
deceased children by representation;
(4) If none of the above, to the parents or the survivor of them;
(5) If none of the above, to the executor or administrator of the
estate of the insured; or
(6) If none of the above, to other next of kin in accordance with the
laws of the State wherein the insured member was domiciled at date of
death.
(j) The insured member may elect in writing that settlement of the
insurance proceeds be made either in a lump sum or in 36 equal monthly
installments. If no election is made or the member elects that payment
be made in a lump sum, the beneficiary may elect at the time of the
member's death either mode of settlement. An election to be effective
must be received before the member's death by the appropriate office as
specified in paragraph (d) of this section.
(40 FR 4135, Jan. 28, 1975, as amended at 53 FR 17699, May 18, 1988)
38 CFR 9.17 Taxation and exemption.
Section 1970(g), title 38 U.S.C. provides that payment of benefits
due or to become due under Servicemen's Group Life Insurance or
Veterans' Group Life Insurance made to, or on account of, a beneficiary
shall be exempt from taxation, shall be exempt from the claims of
creditors, and shall not be liable to attachment, levy, or seizure by or
under any legal or equitable process whatever, either before or after
receipt by the beneficiary. The preceding sentence shall not apply to:
(a) Collection of amounts not deducted from the member's pay, or
collected from the member by the Secretary concerned under 38 U.S.C.
1969 (a), (b) levy under subchapter D, chapter 64 of the Internal
Revenue Code of 1954 (relating to the seizure of property for collection
of taxes), and (c) the taxation of any property purchased in part or
wholly out of such payments.
38 CFR 9.18 Payment of proceeds.
(a) Group life insurance benefits will be paid upon receipt of
satisfactory proof of death and a valid claim by the Office of
Servicemen's Group Life Insurance.
(b) If a person, otherwise entitled to payment of the insurance
proceeds, does not make claim therefor within 1 year following the death
of the insured, or if payment to such person within such period is
prohibited by Federal law or regulation, payment may be made in the
order of precedence as set forth in 9.16(i), as if the person had
predeceased the insured. Payment to such person is a bar to recovery by
another person.
(c) If, within 2 years after the death of the member, no claim has
been made by any person entitled and neither the Department of Veterans
Affairs nor the Office of Servicemen's Group Life Insurance has received
any notice that such a claim will be made, payment may be made to any
claimant that may be equitably entitled thereto as determined by the
Department of Veterans Affairs; and such payment will be a bar to
recovery by another person.
(d) (Reserved)
(e) If, at the death of the insured member, there survives more than
one designated beneficiary, the shares of which had not been specified
by the member, such beneficiaries will share equally. All rights and
interests of any designated beneficiary are automatically terminated
when he or she predeceases the member; and what would otherwise have
been the share of the deceased beneficiary will, in the absence of a
contrary specification by the member in his or her written designation,
be distributed equally among the surviving beneficiaries, or paid in
whole to the last such survivor. If there is no surviving designated
beneficiary, proceeds will be paid in order of precedence set forth in
9.16(i).
(f) If proceeds are to be paid in installments, the first installment
will be payable as of the date of death. The amount of each installment
will be computed so as to include interest on the unpaid balance at the
then effective rate.
(g) If, following the death of an insured member who has designated
both principal and contingent beneficiaries and elected to have payment
made in 36 equal monthly installments, the principal beneficiary dies
before all 36 installments have been paid, the remaining installments
will be paid as they fall due to the contingent beneficiary. At the
death of such a contingent beneficiary, and in other instances of a
beneficiary's death, where there is no contingent beneficiary, the value
of any unpaid installments, discounted to the date of his or her death
at the same rate used for inclusion of interest in the computation of
installments will be paid, without further accrual of interest, in one
sum to the estate of the beneficiary or continent beneficiary last
receiving payment.
(h) In instances where payment in installments is made at the
election of the beneficiary, upon his or her request, the value of such
installments as remain unpaid will be discounted to the date of payment
at the same rate used for inclusion of interest in the computation of
installments and paid to him or her in one sum.
(40 FR 4135, Jan. 28, 1975, as amended at 50 FR 12252, Mar. 28, 1985)
38 CFR 9.20 Assignments.
Servicemen's Group Life Insurance, Veterans' Group Life Insurance and
benefits thereunder are not assignable.
38 CFR 9.22 Administrative decisions.
(a) Determinations of the Department of Veterans Affairs are
conclusive under the policy with respect to the following:
(1) The status of any person being within the term member and whether
or not he or she is covered at any point of time under the policy
including traveltime under 9.5(b)(3) and death within 120 days
thereafter from a disability incurred or aggravated while on duty under
9.7(b).
(2) The fact and date of a member's termination of active duty, or
active duty for training, and the fact, date and hours of a member's
performance of inactive duty training.
(3) The fact and dates with respect to a member's absence without
leave, confinement by civilian authorities under a sentence adjudged by
a civil court, or confinement by military authorities under a
court-martial sentence involving total forfeiture of pay and allowances.
(4) The operation of the forfeiture provision provided in 38 U.S.C.
1973 and 9.34 with respect to any member.
(5) The existence of total disability or insurability at standard
premium rates under 9.7 (a) and (b).
(b) When determination is required on a claim that a member who
waived coverage, or whose coverage was forfeited for one of the offenses
listed in 9.34 of this part was in fact insured, or that a member who
elected to be insured was insured for an amount greater than the amount
shown in the record, and there is no record of an application to be
insured or to increase the amount of insurance as required by 9.8(c) of
this part:
(1) The person making the claim will be required to submit all
evidence available concerning the member's actions and intentions with
respect to Servicemen's Group Life Insurance or Veterans' Group Life
Insurance.
(2) Request will be made to the member's uniformed service and any
other likely source of information considered necessary, for whatever
evidence in the form of copies of payroll or personnel records,
statements of persons having knowledge of the facts, etc., is essential
to a decision in the matter.
Based on the evidence obtained, a formal determination will be made
as to whether the member involved is deemed to have applied to be
insured, or to be insured for an amount other than the amount shown in
the record. The determination will include a finding as to the member's
health status for insurance purposes based on the evidence available.
(Authority: 38 U.S.C. 1967)
(c) In making the determination required under paragraph (b) of this
section, the following will be considered:
(1) The possibility that due to widespread geographic distribution,
inadequate means of communication and the nature of the group insurance
program, members may not be adequately and accurately informed,
especially in time of war or military emergency, about the detailed
requirements for obtaining insurance protection.
(2) Payroll deductions made without objection by a member, following
waiver or termination of coverage, representing premiums for insurance
or additional insurance, may, by virtue of continuity or the
circumstances surrounding their initiation, be indicative that the
member did apply. Such deductions without a formal application of
record may be considered as evidence that the member's application was
not in proper form or misplaced. They may also be considered as
evidence that an application was not made solely because of erroneous or
incomplete counseling or absence of counseling on the part of the
responsible personnel of the uniformed service.
(d) Questions for determination under this section as well as those
involving coverage of groups and classes of members and other questions
are properly referable to the Assistant Director for Insurance.
Authority to make any determinations required under this section is
delegated to the Chief Benefits Director and/or Assistant Director for
Insurance.
(40 FR 4135, Jan. 28, 1975, as amended at 53 FR 17699, May 18, 1988)
38 CFR 9.24 Termination of coverage.
(a) The coverage of a member who is serving on active duty, or active
duty for training under a call or order that does not specify a period
of less than 31 days is terminated at the end of the 31st day of absence
without leave; confinement by civilian authorities under sentence
adjudged by a civilian court; or confinement by military authorities
under a court-martial sentence involving total forfeiture of pay and
allowances.
(1) A member who, on April 6, 1991, has been so absent or confined
for more than 31 days is not covered until and unless he or she is
restored to active duty or active duty for training with pay.
(2) The coverage of a member who, on April 6, 1991, has been so
absent or confined for less than 31 days terminates at the end of the
31st day of such continuous absence or confinement.
(Authority: 38 U.S.C. 1967)
(b) If a member eligible to be insured under full-time coverage,
9.5(a), on the first day of eligibility, waives in writing all or any
part of the insurance, the amount of coverage so waived terminates
immediately upon receipt of such written waiver by his or her uniformed
service.
(c) In the case of a member insured under full-time coverage,
9.5(a), who after the first day of eligibility waives in writing all or
any part of the insurance, such waiver shall be effective at the end of
the last day of the month in which the written waiver is received by his
or her uniformed service.
(d) In the case of a member insured under part-time coverage, 9.5(b)
(1) or (2), who waives in writing all or any part of the insurance, such
waiver shall be effective as follows:
(1) If such written waiver is submitted to the member's uniformed
service at a time of reporting for, or while performing active duty or
active duty for training under a call or order to duty specifying a
period of less than 31 days; or at the time of reporting for or while
performing inactive duty training, the coverage so waived shall
terminate at the end of such period of active duty, active duty for
training or inactive duty training including travel time while returning
directly from such duty.
(2) If such written waiver is submitted to his or her uniformed
service by a member at a time other than when reporting for, or
performing, active duty or active duty for training under a call or
order to duty specifying a period of less than 31 days or inactive duty
training, such waived coverage terminates immediately upon receipt by
the uniformed service of the member's written waiver.
(e) Coverage of any member, unless continued beyond termination of
duty under 9.5(a) or 9.7 (a) or (b) ceases upon termination of duty.
(f) In the case of a member whose coverage is forfeited under 38
U.S.C. 1973, 9.34, coverage terminates at the end of the day preceding
the day on which the act or omission forming the basis for such
forfeiture occurred.
(g) In the event of discontinuance of the group policy, coverage
terminates at the end of the day preceding the date of the
discontinuance of the policy except for those members who are insured
under 9.1(a)(3) or Veterans' Group Life Insurance in which event
coverage terminates at the expiration of the day preceding the
anniversary of the effective date of such insurance which first occurs,
90 days or more after the discontinuance of the group policy.
(40 FR 4135, Jan. 28, 1975, as amended at 48 FR 8071, Feb. 25, 1983;
53 FR 17699, May 18, 1988; 57 FR 11910, Apr. 8, 1992)
38 CFR 9.26 Conversion privilege.
(a) Effective August 1, 1974, an insured member has the right to
convert the group coverage to Veterans' Group Life Insurance as follows:
(1) With respect to a member on active duty or active duty for
training under a call or order to duty that does not specify a period of
less than 31 days, effective the 121st day after separation or release
from such duty, or if such insurance is in effect as the result of total
disability under 9.7(a) at the end of such total disability or the
1-year period, whichever occurs earlier.
(2) With respect to a member on active duty or active duty for
training under a call or order to duty that specifies a period of less
than 31 days, and a member insured during inactive duty training
scheduled in advance by competent authority there shall be no right of
conversion unless the insurance is continued in force under 9.7(b) for
120 days following a period of such duty, as the result of a disability
incurred or aggravated during such a period of duty, in which event the
insurance may be converted effective the day after the end of such
120-day period.
(3) No medical examination may be required of a member insured under
full-time coverage, 9.5(a), who applies for conversion within 120 days
of termination of duty. Medical examinations and evidence of qualifying
health conditions may be required in any case where a former member
alleges that coverage is continued under 9.7 (a) or (b).
(b) At the termination of Veterans' Group Life Insurance, an insured
has the right to convert the group coverage to an individual policy of
life insurance without disability or other supplementary benefits with
one of the eligible participating life insurance companies as follows:
(1) The individual policy to which an insured converts must be on a
plan currently written by the company selected by the insured, except
term insurance, in an amount which does not exceed the amount of the
insured's group coverage at time application for conversion is made, and
which does not provide for the payment of any sum less than the face
value of the individual policy or for the payment of an additional
amount of premiums if the insured engages in the military service of the
United States. The premium for such individual policy shall be the
premium, as determined by the company issuing the policy, applicable to
the class of risk (other than health conditions and military service) to
which the insured belongs and to the form and amount of the individual
policy at the insured's attained age at date of issue.
(Authority: 38 U.S.C. 1977)
(2) Term insurance as excluded by paragraph (b)(1) of this section is
any policy which does not provide for cash values. Otherwise,
reinsurers or converters who are group insurers may follow their usual
group conversion practices in processing conversions. Other reinsurers
or converters should refer questions as to the acceptability of any plan
to the insurer for resolution on a consistent basis.
(3) Term riders providing level or decreasing insurance for which an
additional premium is charged may be attached to an eligible basic
conversion policy, but the rider will be excluded from the conversion
pool agreement under the policy. Such a rider may in no way affect
basic conversion privileges.
(c) The insurer will establish a conversion pool in cooperation with
the reinsurers and converters in accordance with the terms of the
policy. Its purpose will be to provide for the determination and
maintenance of appropriate charges arising from excess mortality under
individual conversion policies issued in accordance with this section
and provide for the appropriate distribution of the risk of loss due to
such excess mortality among the reinsurers and converters.
(d) A member of the Ready Reserve, 9.1(a)(2), who is insured at the
time of his or her separation or release from such status and is
eligible to continue his or her Servicemen's Group Life Insurance (
9.1(a)(3), may in lieu of continuing such group coverage, convert it to
an individual policy in accordance with paragraph (b) of this section.
Such conversion must be made within 120 days after such separation or
release or within 1 year if the requirements of 9.7(a) are met.
(40 FR 4135, Jan. 28, 1975, as amended at 53 FR 17699, May 18, 1988)
38 CFR 9.27 Health standards.
(a) For the purpose of determining if a member who incurred a
disability or aggravated a preexisting disability during a period of
active duty or active duty for training under a call to duty specifying
a period of less than 31 days or during a period of inactive duty was
rendered uninsurable at standard premium rates, the underwriting
criteria used by the insurer in determining good health for persons
applying to it for life insurance in amounts not exceeding the maximum
amount of coverage then available under 38 U.S.C. 1967 will be used.
(Authority: 38 U.S.C. 1967)
(b) For all other purposes of determining if a member meets the
necessary health requirements except paragraph (a) of this section, the
underwriting criteria used by the insurer in determining good health for
group life insurance purposes will be used.
(40 FR 4135, Jan. 28, 1975, as amended at 53 FR 17699, May 18, 1988)
38 CFR 9.28 Criteria for reinsurers and converters.
The following criteria will control eligibility for reinsuring and
converting companies:
(a) The company must be a legal reserve life insurance company as
classified by the insurance supervisory authorities of the State of
domicile. Qualified fraternal organizations are included.
(b) The company must have been in the life insurance business for a
continuous period of 5 years prior to October 1, 1965, or the December
31 preceding any redeterminations of the allocations. In the event of a
merger, the 5-year requirement may be satisfied by either the surviving
company or by one of the absorbed companies. Upon joint application by
a subsidiary of a participating company, together with the parent
company, the 5-year requirement may be waived provided such parent
company owns more than 50 percent of the outstanding stock of the
subsidiary and has been a legal reserve life insurance company for a
period of 10 years or more.
(c) The company must be licensed to engage in life insurance in at
least one State of the United States or the District of Columbia.
(d) The company will not be one: (1) Certified by the Department of
Defense as being under suspension for cause for purpose of allotment or
on-base solicitation privileges.
(2) That solicits life insurance applications as conversion or other
replacement of Servicemen's Group Life Insurance or Veterans' Group Life
Insurance coverage in jurisdictions in which it is not licensed.
(3) That fails to take effective action to correct an improper
practice followed by it or its agents within 30 days after written
receipt of notice issued by the insurer or the Assistant Director for
Insurance. Improper practice includes:
(i) The use for solicitation purposes of lists of names and addresses
of former members without obtaining reasonable assurance that such lists
have not been obtained contrary to regulations of the Department of
Defense or other uniformed service;
(ii) Failure to reveal sources and copies of mailing lists upon
proper request or to otherwise cooperate in an authorized investigation
of a reported improper practice;
(iii) The use of written or oral representations which may mislead
the person addressed as to the true role of the company or its
representatives as one of the participating companies;
(iv) The use of written or oral representations which may mislead the
person addressed as to rights, privileges, coverage, premiums, or
similar matters under Servicemen's Group Life Insurance, Veterans' Group
Life Insurance, or any policy issued or proposed to be issued as a
conversion or other replacement coverage;
(v) Violation of regulations of a uniformed service concerning
solicitation of life insurance; and
(vi) The use of written or oral references to Servicemen's Group Life
Insurance, Veterans' Group Life Insurance or conversions of Servicemen's
Group Life Insurance or Veterans' Group Life Insurance in connection
with the attempted sale of an insurance policy which would not be, in
fact, a conversion policy or a policy issued in lieu of a conversion, if
those references might lead a person addressed to believe there is a
connection between the policy being sold and coverage under Servicemen's
Group Life Insurance, Veterans' Group Life Insurance or a conversion of
it.
(e) Each reinsuring and converting company must agree to issue
conversion policies to any qualified applicant regardless of race,
color, religion, sex, or national origin, under terms and conditions
established by the primary insurer.
38 CFR 9.30 Reinsurance formula.
The allocation of insurance to the insurer and each reinsuring
company will be based upon the sum of paragraphs (a) and (b) of this
section following:
(a) One-half of the exact, or a reasonable estimate of the volume of
the company's life insurance in force, at some time between June 30,
1965, and November 15, 1965, on active-duty personnel of the U.S. Armed
Forces, paid for by service allotments. The volume of insurance on
active-duty personnel written through the medium of Service Membership
Associations on an allotment basis is to be included.
(b) An amount of the remaining balance of the total life insurance in
force under the policy in proportion to the company's total life
insurance in force in the United States on December 31, 1964, where:
The first $100 million in force is counted in full,
The second $100 million in force is counted at 75 percent,
The third $100 million in force is counted at 50 percent,
The fourth $100 million in force is counted at 25 percent,
And any amount above $400 million in force is counted at 5 percent.
(c) The allocation will be redetermined at the beginning of each
policy year for the primary insurer and the companies then reinsuring,
with the portion as set forth in paragraph (b) of this section based
upon the corresponding in force (excluding the Servicemen's Group Life
Insurance in force) as of the preceding December 31.
(d) Any life insurance company, which is not initially participating
in reinsurance or conversions, but satisfies the criteria set forth in
9.28, may subsequently apply to the primary insurer to reinsure and
convert, or to convert only. The participation of such company will be
effective as of the beginning of the policy year following the date on
which application is approved by the insurer.
38 CFR 9.32 Actions on the policy.
Servicemen's Group Life Insurance and Veterans' Group Life Insurance
will be payable in accordance with the group policy purchased by the
Department of Veterans Affairs. The Assistant Director for Insurance
will furnish the name and address of the insuring company upon written
request of a member of the uniformed services or his or her beneficiary.
Actions at law or in equity to recover on the policy, in which there is
not alleged any breach of any obligation undertaken by the United
States, should be brought against the insurer.
38 CFR 9.34 Forfeiture.
(a) Any person guilty of mutiny, treason, spying, or desertion, or
who, because of conscientious objections, refuses to perform service in
the Armed Forces of the United States or refuses to wear the uniform of
such force, shall forfeit all rights to Servicemen's Group Life
Insurance.
(b) No insurance shall be payable for death inflicted as a lawful
punishment for crime or for military or naval offense, except inflicted
by an enemy of the United States.
38 CFR 9.36 Veterans' Group Life Insurance.
Veterans' Group Life Insurance shall be issued under the following
rules:
(a) The insurance shall be issued in an amount not to exceed the
statutory maximum, as provided for under 38 U.S.C. 1967(a) and 1977,
that is evenly divisible by $10,000. No person may carry a combined
amount of Servicemen's Group Life Insurance and Veterans' Group Life
Insurance in excess of the statutory maximim at any one time. Should
any person remit premiums in excess of the premiums payable for the
maximum allowable amount of coverage, the insurer shall be responsible
only for the refund of such excess premiums paid.
(b) The insurance shall:
(1) Provide protection against death;
(2) Be issued on a nonrenewable 5-year term basis; except that,
insurance issued to members of the Individual Ready Reserve or Inactive
National Guard may be renewed provided the individual remains a member
of the Individual Ready Reserve or Inactive National Guard throughout
the period of insurance;
(3) Have a no cash, loan, paid-up or extended values;
(4) Except as otherwise provided, lapse for nonpayment of premiums.
(c) Any person insured under Veterans' Group Life Insurance who
becomes insured under Servicemen's Group Life Insurance may within 60
days after becoming so insured convert any or all of his or her
Veterans' Group Life Insurance to an individual policy of insurance in
accordance with 9.26 of this part.
(Authority: 38 U.S.C. 1977)
(53 FR 17699, May 18, 1988)
38 CFR 9.36 PART 10 -- ADJUSTED COMPENSATION
Sec.
10.0 Adjusted service pay entitlements.
10.1 Issuance of duplicate adjusted service certificate without bond.
10.2 Evidence required of loss, destruction or mutilation of adjusted
service certificate.
10.3 Issuance of duplicate adjusted service certificate with bond.
10.4 Loss, destruction, or mutilation of adjusted service certificate
while in possession of Department of Veterans Affairs.
10.15 Designation of more than one beneficiary under an adjusted
service certificate.
10.16 Conditions requisite for change in designation of beneficiary.
10.17 Designation of beneficiary subsequent to cancellation of
previous designation.
10.18 Approval of application for change of beneficiary heretofore
made.
10.20 ''Demand for payment'' certification.
10.22 Payment to estate of decedent.
10.24 Payment of death claim on lost, destroyed or mutilated adjusted
service certificate with bond.
10.25 Payment of death claim on adjusted service certificate without
bond.
10.27 Definitions.
10.28 Proof of death evidence.
10.29 Claims for benefits because of elimination of preferred
dependent.
10.30 Proof of remarriage.
10.31 Dependency of mother or father.
10.32 Evidence of dependency.
10.33 Determination of dependency.
10.34 Proof of age of dependent mother or father.
10.35 Claim of mother entitled by reason of unmarried status.
10.36 Proof of marital cohabitation under section 602 or section 312
of the act.
10.37 Claim of widow not living with veteran at time of veteran's
death.
10.38 Proof of age of veteran's child.
10.39 Mental or physical defect of child.
10.40 Payment on account of minor child.
10.41 Definition of ''child''.
10.42 Claim of child other than legitimate child.
10.43 Claim by guardian of child of veteran.
10.44 Evidence required to support claim of mother or father.
10.45 Definition of ''widow''.
10.46 Authentication of statements supporting claims.
10.47 Use of prescribed forms.
10.50 Section 601 and section 603 payments made on first day of
calendar quarter.
10.51 Payments to minor child.
10.52 Duplication of payments prohibited.
10.53 Payment on duplicate certificate.
Authority: 72 Stat. 1114; 38 U.S.C. 501. Rights and benefits are
continued in effect by sec. 12(b), 72 Stat. 1264, 38 U.S.C. note prec.
Part 1.
Source: 13 FR 7122, Nov. 27, 1948, unless otherwise noted.
38 CFR 9.36 Adjusted Compensation; General
38 CFR 10.0 Adjusted service pay entitlements.
A veteran entitled to adjusted service pay is one whose adjusted
service credit does not amount to more than $50 as distinguished from a
veteran whose adjusted service credit exceeds $50 and who therefore is
entitled to an adjusted service certificate.
38 CFR 10.1 Issuance of duplicate adjusted service certificate without
bond.
If the veteran named in an adjusted service certificate issued
pursuant to the provisions of section 501 of the World War Adjusted
Compensation Act, without bad faith, has not received such certificate,
or if prior to receipt by the veteran such certificate was destroyed
wholly or in part or was so defaced as to impair its value, or, if after
delivery it was partially destroyed or defaced so as to impair its value
but can be identified to the satisfaction of the Secretary, a duplicate
adjusted service certificate will be issued upon application and a bond
of indemnity will not be required: Provided, That if the adjusted
service certificate was destroyed in part or so defaced as to impair its
value, the veteran or person entitled to payment thereon will be
required to surrender to the Department of Veterans Affairs the original
certificate or so much thereof as may remain.
38 CFR 10.2 Evidence required of loss, destruction or mutilation of
adjusted service certificate.
The veteran named in an adjusted service certificate issued pursuant
to the provisions of section 501 of the World War Adjusted Compensation
Act, or the person entitled to payment thereon will be required to
furnish evidence of the nonreceipt of the adjusted service certificate,
or of its receipt in a mutilated or defaced condition, or of the loss or
destruction in whole or in part of defacement of the certificate after
its receipt, as the case may be. The evidence must be sufficient to
establish to the satisfaction of the Secretary that neither the veteran
nor the person entitled to payment thereon, or any person for or on
their behalf, received the adjusted service certificate, or that at the
time of its receipt it was mutilated or defaced to such an extent as to
impair its value, or that after receipt of the certificate it was lost
or destroyed in whole or in part or defaced, but without bad faith on
the part of the veteran, and that every effort has been made to recover
the lost certificate. Unless determination is otherwise made by the
Secretary the evidence must be in the form of a written statement sworn
to by the veteran or person entitled to payment thereon and witnessed by
at least two persons who shall state, under oath that they personally
know the affiant, that they have read his or her statement and that it
is true to the best of their knowledge and belief. These statements
should be supplemented by affidavits of any persons having personal
knowledge of additional facts and circumstances concerning the matter,
and the Secretary may require any additional evidence deemed necessary.
38 CFR 10.3 Issuance of duplicate adjusted service certificate with
bond.
An indemnity bond will be required as a prerequisite to the issuance
of a duplicate adjusted service certificate in all cases where the
certificate was lost after receipt by the veteran, or after receipt by
the veteran was defaced or mutilated and cannot be identified to the
satisfaction of the Secretary, provided the loss, defacement, or
mutilation was without bad faith on the part of the veteran or the
person entitled to payment thereon. The bond must be in the manner and
form prescribed by the Department of Veterans Affairs and for an amount
equal to the face value of the certificate, with surety or sureties
residents of the United States and satisfactory to the Secretary, with
condition to indemnify and save harmless the United States from any
claim on account of such certificate. If the certificate was defaced or
mutilated the veteran or person entitled to payment thereon will be
required to surrender to the Department of Veterans Affairs the
certificate or so much thereof as may remain.
38 CFR 10.4 Loss, destruction, or mutilation of adjusted service
certificate while in possession of Department of Veterans Affairs.
A new adjusted service certificate will be issued without bond in
lieu of the certificate which has been lost or destroyed, or has been
mutilated, defaced or damaged so as to impair its value, while in
possession of the Department of Veterans Affairs.
38 CFR 10.15 Designation of more than one beneficiary under an adjusted
service certificate.
A veteran to whom an adjusted service certificate has been issued
pursuant to the provisions of section 501 of the World War Adjusted
Compensation Act may name more than one beneficiary to receive the
proceeds of his adjusted service certificate, and may from time to time
with the approval of the Secretary change such beneficiaries. The
designated beneficiaries shall share equally unless otherwise specified
by the veteran. Wherever the word beneficiary appears in the law and
Department of Veterans Affairs regulations it shall be interpreted to
include beneficiaries.
38 CFR 10.16 Conditions requisite for change in designation of
beneficiary.
A change of beneficiary of an adjusted service certificate to be
valid must be made:
(a) By notice signed by the veteran or his duly authorized agent, and
delivered or properly mailed to the Department of Veterans Affairs
during the lifetime of the veteran. Such change shall not take effect
until approved by the Secretary and after such approval the change shall
be deemed to have been made as of the date the veteran signed said
written notice and change, whether the veteran be living at the time of
said approval or not.
(b) Or by last will and testament of the veteran, duly probated.
Such change shall not be effective until received by the Department of
Veterans Affairs and approved by the Secretary and after such approval
the change shall be deemed to have been made as of the date of death of
the veteran: Provided, That a change of beneficiary signed subsequent
to the date upon which the will was executed and delivered in accordance
with paragraph (a) of this section shall if approved in accordance with
regulations take precedence over the designation by will.
Provided, however, That any payment made to a beneficiary of record,
before notice of change of beneficiary has been received in the
Department of Veterans Affairs and approved by the Secretary, shall not
be made again to the changed beneficiary.
38 CFR 10.17 Designation of beneficiary subsequent to cancellation of
previous designation.
The designation of a beneficiary made subsequent to the cancellation
of a previous designation of beneficiary, shall be considered as a
change in beneficiary, and shall be subject to the approval of the
Secretary and subject to the conditions and requirements respecting
change in beneficiary as outlined in 10.16.
38 CFR 10.18 Approval of application for change of beneficiary
heretofore made.
Any application for a change of beneficiary heretofore made may be
approved if it meets the requirements set out in 10.16 and 10.17.
38 CFR 10.20 ''Demand for payment'' certification.
Certification to the execution of demand for payment forms appearing
on the reverse side of adjusted service certificates issued pursuant to
the World War Adjusted Compensation Act, as amended, is required in
accordance with instructions printed on said forms. Such certification
if made in the United States or possessions will be accepted if made by
and bearing the official seal of a United States postmaster, an
executive officer of an incorporated bank or trust company, notary
public, or any person who is legally authorized to administer oaths in a
State, Territory, District of Columbia or in a Federal judicial district
of the United States. If the demand for payment be executed in a
foreign country, the same shall be certified by an American consul, a
recognized representative of an American embassy or legation or by a
person authorized to administer oaths under the laws of the place where
execution of demand is made, provided there be attached to the
certificate of such latter officer a proper certification by an
accredited official of the State Department of the United States that
the officer certifying to the execution of the demand for payment was
authorized to administer oaths in the place where certification was
made.
38 CFR 10.22 Payment to estate of decedent.
Wherever the face value of an adjusted service certificate, issued
pursuant to the World War Adjusted Compensation Act, as amended, becomes
payable to the estate of any decedent and the amount thereof is not over
$500 and an administrator has not been or is not to be appointed, such
amount will be paid to such person or persons as would, under the laws
of the State of residence of the decedent, be entitled to his personal
property in case of intestacy.
38 CFR 10.24 Payment of death claim on lost, destroyed or mutilated
adjusted service certificate with bond.
If the veteran named in an adjusted service certificate, issued
pursuant to the provisions of section 501 of the World War Adjusted
Compensation Act, is deceased, and if, after receipt by the veteran, the
adjusted service certificate was lost, destroyed, or so defaced as to
impair its value and cannot be identified to the satisfaction of the
Secretary of Veterans Affairs, the person entitled to payment thereon
will be required to furnish an indemnity bond in the manner and form
prescribed by the Department of Veterans Affairs and for an amount equal
to the face value of the certificate, with surety or sureties residents
of the United States and satisfactory to the Secretary of Veterans
Affairs with condition to indemnify and save harmless the United States
from any claim on account of such certificate, before payment will be
made of the proceeds of the certificate and a duplicate adjusted service
certificate will not be issued.
38 CFR 10.25 Payment of death claim on adjusted service certificate
without bond.
If the veteran named in the adjusted service certificate, issued
pursuant to the provisions of section 501 of the World War Adjusted
Compensation Act, is deceased, and if the certificate was lost or
destroyed wholly or in part or was so defaced as to impair its value
prior to receipt by the veteran, or was partially destroyed or defaced
after receipt by the veteran, but can be identified to the satisfaction
of the Secretary of Veterans Affairs, payment will be made of the
proceeds of the certificate, a bond of indemnity will not be required,
and a duplicate adjusted service certificate will not be issued:
Provided, The person entitled to payment thereon surrenders the defaced
or mutilated certificate or so much thereof as may remain.
38 CFR 10.27 Definitions.
For the purpose of 10.28 to 10.47, the word Act as used herein
refers to the World War Adjusted Compensation Act, as amended; the word
Veteran refers to that term as defined in section 2 of title I of said
Act; the word Director refers to the Secretary of Veterans Affairs.
38 CFR 10.28 Proof of death evidence.
Evidence required in establishing proof of death under the act, as
amended, shall conform with the requirements set forth in the
regulations of the Department of Veterans Affairs.
38 CFR 10.29 Claims for benefits because of elimination of preferred
dependent.
A dependent, in subsequent position in the order of preference as
defined in section 601 of title VI of the Act, as amended, who makes
claim for the benefits of the Act in consequence of the death of a
dependent who made application and who stood in preferential position as
defined in section 601 of the act, as amended, shall be required to
furnish, in support of such claim, proof of death of said dependent.
Proof of death of said dependent shall be in accordance with the
requirements for proof of death as outlined in the regulations of
Department of Veterans Affairs. A dependent who makes claim for the
benefits of the act because of remarriage of a widow who did not make
and file application before remarriage shall be required to furnish in
support of such claim proof of remarriage of said widow. Proof of
remarriage of said widow shall be in accordance with the requirements
for proof of marriage as outlined in regulations of the Department of
Veterans Affairs.
38 CFR 10.30 Proof of remarriage.
A dependent who is receiving payments under section 601 of title VI
of the Act, as amended, and who remarries after making and filing
application, shall be required to furnish proof of remarriage in
accordance with the requirements for proof of remarriage as outlined in
regulations of the Department of Veterans Affairs.
38 CFR 10.31 Dependency of mother or father.
Claims of a mother or father for the benefits to which either may be
entitled under the World War Adjusted Compensation Act, as amended,
shall be supported by a statement of fact of dependency made under oath
by the claimant and witnessed by two persons.
38 CFR 10.32 Evidence of dependency.
Evidence of a whole or entire dependency shall not be required. The
mother or father shall be considered dependent for the purposes of the
act when it is established as a fact that the mother or father of a
deceased veteran did not have sufficient means from all sources for a
reasonable livelihood at the time of the death of the veteran or at any
time thereafter and on or before January 2, 1935. In those cases where
because of continued and unexplained absence for seven years the veteran
is declared deceased under section 312(a) of the Act as amended May 29,
1928, the mother or father shall be considered dependent when it is
established that the mother or father did not have sufficient means from
all sources for a reasonable livelihood at the beginning of such 7-year
period or at any time thereafter and before the expiration of such
period.
38 CFR 10.33 Determination of dependency.
A determination of the existence of the alleged dependency will be
made upon consideration of all facts relating to dependency, and upon
such investigation of such facts as may be warranted. The following
facts as existing at the time of the death of the veteran, or at any
time thereafter and on or before January 2, 1935, or where it is
established that the veteran is deceased as provided in section 312(a),
at the beginning of such 7-year period or at any time thereafter and
before the expiration of such period, shall be taken into consideration
in determining dependency in a given case:
(a) Claimant's age.
(b) Amount contributed to claimant by deceased veteran.
(c) Value of all real and personal property owned by claimant.
(d) Total monthly expenses of the claimant and total monthly income.
(e) The fact that claimant did or did not receive an allotment of pay
or allowance during the veteran's military or naval service.
(f) Incapability of self-support by reason of mental or physical
defect.
(g) Any other fact or facts pertinent to the determination of
dependency.
38 CFR 10.34 Proof of age of dependent mother or father.
The mother or father of a veteran to be entitled to the presumption
of dependency within the meaning of section 602(c) or section 312(c) of
the Act, as amended, shall be required to submit proof of age in
accordance with the requirements as set forth in regulations of the
Department of Veterans Affairs.
38 CFR 10.35 Claim of mother entitled by reason of unmarried status.
Claim of a mother for the benefits to which she may be entitled by
reason of her unmarried status as outlined in section 202(c) or section
312(c)3 of the Act, as amended, shall be supported by a statement of
fact, under oath, of such status, together with one of the following:
(a) Certified copy of public record of death of the husband.
(b) Certified copy of court record of divorce decree.
38 CFR 10.36 Proof of marital cohabitation under section 602 or section
312 of the Act.
In order to prove marital cohabitation within the meaning of that
term as used in section 602(a) or section 312(c)1 of the Act, as
amended, claimant shall be required to establish:
(a) A valid marriage, such marriage to be shown by the best evidence
obtainable in accordance with the provisions of regulations of the
Department of Veterans Affairs.
(b) The fact of living together as man and wife, with such fact to be
established by:
(1) Statement of the widow or widower showing that he or she and the
veteran lived together as man and wife and also showing the place or
places of residence during such marital cohabitation and the approximate
time of such residence; or
(2) Statement of two competent persons showing that they personally
knew the claimant and veteran and that they had personal knowledge that
said claimant and veteran lived together as man and wife and were
recognized as such.
(c) The fact that the marital status existed at the time of the death
of the veteran or where it is established that the veteran is deceased,
as provided in section 312(a)1 of the Act, as amended, at the beginning
of such 7-year period, such fact to be established by:
(1) Statement by claimant that he or she and the veteran had not been
divorced and that there had been no annulment of the marriage.
(2) Statement of claimant that he or she was not remarried at the
time of making application.
(3) Statement of two competent persons showing that they personally
knew the claimant and the veteran; that they personally knew of the
marriage relationship between claimant and veteran; that to the best of
their knowledge and belief there had been no divorce and no annulment of
the marriage and that claimant was not remarried at the time of making
and filing application.
38 CFR 10.37 Claim of widow not living with veteran at time of
veteran's death.
If a veteran and widow were not living together at the time of the
death of the veteran the widow will be required to establish:
(a) That the living apart was not due to her willful act, and
(b) Actual dependency upon the veteran at the time of his death or at
any time thereafter and before January 2, 1935.
(1) A determination of what shall constitute a willful act, as used
in section 602(a) of the Act, as amended, will be made upon
consideration of all facts relating to such act and upon such
investigation of such facts as may be deemed warranted. For the purpose
of this section, the fact that a veteran lived apart from the widow
because of any act by the widow involving desertion or moral turpitude
will be construed as the willful act of the widow. Cause of separation
and time and duration of separation at the time of the death of the
veteran shall be taken into consideration in determining a willful act.
(2) A determination of the existence of actual dependency will be
made under the criteria set forth in 10.32 and 10.33 with respect to
dependency of a mother or father.
38 CFR 10.38 Proof of age of veteran's child.
A child of a veteran shall be required to submit proof of age in
accordance with the requirements set forth in the regulations of the
Department of Veterans Affairs.
38 CFR 10.39 Mental or physical defect of child.
If claim is made under section 602(b), (2), of title IV of the Act as
amended, alleging that a child over 18 years of age was incapable of
self-support at the death of the veteran or that he became incapable of
self-support subsequent to the death of the veteran but on or before
January 2, 1935, or that he was incapable of self-support at the
disappearance of the veteran or became incapable of self-support after
the disappearance of the veteran and before the expiration of the period
of seven years mentioned in section 312(c), (2), of the Act, it will be
necessary to furnish evidence as to the mental or physical condition of
the child at the time it is alleged he became incapable of self-support.
(a) Where incapability of self-support by reason of the mental defect
of the child is alleged, the following evidence will be required:
(1) Certified copy of court order or decree declaring the child to be
mentally incompetent; or
(2) A report of a licensed physician setting forth all of the facts
as to the child's mental condition; or
(3) The affidavit of the person having custody and control of the
child, setting forth all of the available information as to the child's
mental condition. The affidavit must be substantiated by two competent
disinterested persons who shall state that they personally know the
child, that they have read the affidavit made by the person having
custody and control of the child, and that the information therein set
forth is true to the best of their knowledge and belief.
(b) Where incapability of self-support by reason of physical defect
of the child is alleged, the following evidence will be required:
(1) Report of a licensed physician setting forth all of the facts as
to the child's physical condition; and
(2) Affidavit of the child regarding his physical condition and the
affidavits of two competent disinterested persons, who shall state that
they personally know the claimant, that they have read his affidavit and
that the same is true to the best of their knowledge and belief.
38 CFR 10.40 Payment on account of minor child.
Payments to a minor child shall be made to the legally constituted
guardian, curator or conservator, or to the person found by the director
to be otherwise legally vested with the care of the child.
38 CFR 10.41 Definition of ''child''.
The term child as used in the regulations in this part includes:
(a) A legitimate child;
(b) A child legally adopted;
(c) A stepchild if a member of the veteran's household at the time of
the death of the veteran, or
(d) An illegitimate child but as to the father only if acknowledged
in writing signed by him, or if he has been judicially ordered or
decreed to contribute to such child's support or has been judicially
decreed to be the putative father of such child.
38 CFR 10.42 Claim of child other than legitimate child.
A claim of a child legally adopted by the veteran upon whose service
the claim is based shall be supported by a certified copy of the court
record of such adoption. A claim of a stepchild of a veteran shall be
supported by an affidavit of his or her legal guardian, stating that at
the time of the death of the veteran said stepchild was a member of the
veteran's household. The fact, as stated in such affidavit, and the
signature of the guardian thereto, shall be attested by the court having
jurisdiction over the guardian, or by two competent persons to whom the
child was personally known at the time of the death of the veteran. A
claim of an illegitimate child of a veteran upon whose service claim is
based, shall be supported by:
(a) A statement by the veteran in writing acknowledging his parentage
of such child; or
(b) Certified copy of order or decree of a court ordering the veteran
to contribute to such child's support; or
(c) Certified copy of a decree of a court holding the veteran to be
the putative father of such child.
38 CFR 10.43 Claim by guardian of child of veteran.
A claim made by a legal guardian on behalf of his or her ward, a
child of a veteran, shall be supported by an affidavit of said guardian,
in the capacity of guardian, setting forth the names, ages, and
addresses of all living children of the deceased veteran, or, if there
be no living child other than the claimant child, statement of that fact
shall be made. The signature of the guardian to such required affidavit
shall be attested by the court having jurisdiction of the guardian and
ward, or by two competent persons to whom the child is personally known.
38 CFR 10.44 Evidence required to support claim of mother or father.
The term mother and father as referred to in the order of preference
as outlined in section 601 of the Act, as amended, includes stepmothers,
stepfathers, mothers and fathers through adoption, and persons who, for
a period of not less than one year, have stood in the place of a mother
or father to the veteran at any time prior to the beginning of his
service. In addition to the evidence of dependency required from a
natural mother or father, a claim of a stepmother or stepfather shall be
supported by evidence of marriage to the natural parent of the veteran.
This evidence shall be in accordance with the requirements of proof of
marriage as set forth in regulations of the Department of Veterans
Affairs. A claim of a mother or father through adoption shall be
supported by a certified copy of the court record of such adoption. A
claim by a person who claims to have stood in the place of a mother or
father shall be supported by evidence of such relationship satisfactory
to the Department of Veterans Affairs. Such evidence shall comprise:
(a) An affidavit of the claimant containing a complete detailed
statement of the alleged relationship and
(b) Affidavits of two competent witnesses to whom claimant was
personally known at the time of the death of the veteran, said witnesses
certifying to the truth of the statement as made by the claimant.
38 CFR 10.45 Definition of ''widow''.
The term widow as used in the regulations in this part includes
widower.
38 CFR 10.46 Authentication of statements supporting claims.
All statements, except those of licensed examining physicians under
10.39 (a)(2) and (b)(1), required by 10.28 to 10.44 shall be
subscribed and sworn to before an officer vested with authority to
administer oaths, in the place where such statements are made.
Signatures executed in foreign countries or places shall be certified by
an American consul, a recognized representative of an American consul, a
recognized representative of an American embassy or legation or by a
person authorized to administer oaths under the laws of the place where
such statements are made, provided there be attached to the certificate
of such latter officer a proper certification by an accredited official
of the State Department of the United States that the officer certifying
to the execution of the signature was authorized to administer oaths in
the place where certification was made.
38 CFR 10.47 Use of prescribed forms.
Statements required by the regulations in this part should be
submitted on forms provided by the Department of Veterans Affairs, when
conveniently available.
38 CFR 10.47 Payments
38 CFR 10.50 Section 601 and section 603 payments made on first day of
calendar quarter.
Cash payments and the first installment of installment payments
authorized in sections 601 and 603, respectively of title VI of the
World War Adjusted Compensation Act, as amended, will be made as of the
first day of the calendar quarter following the finding by the director
that the applicant is a dependent entitled to the benefits of the act,
but in no case shall any such payments be made before March 1, 1925:
Provided, however, That payments authorized by section 608 of title VI
of the Act, as amended, shall be paid in a lump sum to the preferred
dependent without reference to payments under section 603 of title VI of
the Act, as amended.
38 CFR 10.51 Payments to minor child.
Payments to minor child through legal guardian, natural guardian, or
self. (See 10.40.)
38 CFR 10.52 Duplication of payments prohibited.
Duplication of payments shall not be made in case of change of
beneficiary. (See 10.16.)
38 CFR 10.53 Payment on duplicate certificate.
Issuance of duplicate adjusted service certificates and payment of
claims based upon lost, destroyed, or mutilated, adjusted service
certificates. (See 10.1 to 10.4, 10.24 and 10.25, respectively.)
38 CFR 10.53 PART 11 -- LOANS BY BANKS ON AND PAYMENT OF ADJUSTED
SERVICE CERTIFICATES
Sec.
11.75 Certificates.
11.76 To whom loan may be made.
11.77 By whom loans may be made.
11.80 Sale or discount of note by holding bank.
11.81 Rediscounts with Federal Reserve Banks.
11.83 Additional loans by reason of 50 percent loan value.
11.84 Redemption because of veteran's death.
11.85 Condition requisite for redemption.
11.88 Cancellation of note.
11.89 Notification of veteran.
11.91 Repayment of loans.
11.93 Failure to redeem.
11.96 By whom loans may be made.
11.99 Identification.
11.100 Form of note.
11.102 Term of note.
11.104 Disposition of notes and certificates.
11.109 Settlement of unmatured adjusted service certificates.
11.110 Who may make application for final settlement.
11.111 Form of application.
11.114 Identification.
11.115 Where to file application.
11.116 Death of veteran before final settlement.
11.117 Missing applications.
11.125 Settlement of matured adjusted service certificates.
11.126 Form of application.
11.127 Identification.
11.128 Veteran dies without having filed application for final
settlement.
11.129 Form of application for payment of deceased veteran's
certificate.
11.130 Where to file applications.
Authority: 72 Stat. 1114; 38 U.S.C. 501. Rights and benefits are
continued in effect by sec. 12(b), 72 Stat. 1264, 38 U.S.C. note prec.
Part 1, unless otherwise noted.
38 CFR 10.53 Loans by Banks on Adjusted Service Certificates Under
Section 502 of the World War Adjusted Compensation Act
Source: Sections 11.75 to 11.85 appear at 13 FR 7125, Nov. 27,
1948, unless otherwise noted.
38 CFR 11.75 Certificates.
Adjusted service certificates are dated as of the 1st day of the
month in which the applications were filed, but no certificates are
dated prior to January 1, 1925. Loans on the security of such
certificates may be made at any time after the date of the certificate.
The fact that a certificate is stamped or marked ''duplicate'' does not
destroy its value as security for a loan.
38 CFR 11.76 To whom loan may be made.
Only the veteran named in the certificate can lawfully obtain a loan
on his adjusted service certificate and neither the beneficiary nor any
other person than the veteran has any rights in this respect. The
person to whom the loan is made must be known to the lending bank to be
the veteran named in the certificate securing such note. The consent of
the beneficiary is not required, the act providing that a loan on the
security of the certificate may be made ''with or without the consent of
the beneficiary thereof.'' Loans may be made to veterans adjudged
incompetent only through the guardians of such veterans and pursuant to
specific order of the court having jurisdiction. Certified copy of
court order must be submitted if note be presented for redemption by the
Department of Veterans Affairs.
38 CFR 11.77 By whom loans may be made.
Any national bank or any bank or trust company incorporated under the
laws of any State, Territory, possession, or the District of Columbia,
hereinafter referred to as any bank, is authorized to loan to any
veteran upon his promissory note secured by his Adjusted Service
Certificate any amount not in excess of the loan value of the
certificate at the date the loan is made. Each certificate contains on
its face a table for determining the loan value of the certificate, but
it is provided by amendment to the World War Adjusted Compensation Act
dated February 27, 1931, that the loan value of any certificate shall at
no time be less than 50 percent of the face value. Upon the making of
such loan, the lending bank shall promptly notify the Department of
Veterans Affairs of the name of the veteran, the A-number shown
immediately after the name, the number of the certificate, the amount,
the rate of interest, and date of loan: However, this requirement may
be waived by the Secretary of Veterans Affairs.
38 CFR 11.80 Sale or discount of note by holding bank.
Any bank holding a note secured by an Adjusted Service Certificate
may sell the note to any bank authorized to make a loan to a veteran and
deliver the certificate to such bank. In case a note secured by an
Adjusted Service Certificate is sold or transferred, the bank selling,
discounting or rediscounting the note is required by law to notify the
veteran promptly by mail at his last known post office address. No
Adjusted Service Certificate is negotiable or assignable, or may serve
as security for a loan, except as provided in section 502 of the World
War Adjusted Compensation Act, as amended. Any negotiation, assignment
or loan made in violation of section 502 of the World War Adjusted
Compensation Act is void. In case of sale, discount or rediscount by
the bank which made the loan, the note or notes should be accompanied by
the affidavit required by 11.85.
38 CFR 11.81 Rediscounts with Federal Reserve Banks.
Upon the endorsement of any bank, which shall be deemed a waiver of
demand, notice and protest by such bank as to its own endorsement
exclusively, and subject to regulations to be prescribed by the Federal
Reserve Board, any such note secured by an Adjusted Service Certificate
and held by a bank is made eligible for discount or rediscount by the
Federal reserve bank of the Federal reserve district in which such bank
is located, whether or not the bank offering the note for discount or
rediscount is a member of the Federal Reserve System and whether or not
it acquired the note in the first instance from the veteran or acquired
it by transfer upon the endorsement of any other bank: Provided, That
at the time of discount or rediscount such note has a maturity not in
excess of 9 months, exclusive of days of grace, and complies in all
other respects with the provisions of the law, the regulations of the
Federal Reserve Board and the regulations in this part.
38 CFR 11.83 Additional loans by reason of 50 percent loan value.
(a) It will be the policy of the Department of Veterans Affairs to
redeem all loans made in accordance with the law and regulations made
pursuant thereto, when such loans are made in good faith to the veteran
to whom the certificate was issued. If, while his certificate is held
by a bank as security for a loan, the veteran applies for the increased
loan value authorized by the amendment to the World War Adjusted
Compensation Act dated February 27, 1931, whether or not the loan has
matured, the veteran and the bank will be informed fully of the
provisions of this section and that the bank may make the loan for the
additional amount or, upon request of the veteran, may send the note and
certificate to the Secretary of Veterans' Affairs. The Secretary shall,
if the loan was legally made, accept such certificate and note, and pay
to the bank in full satisfaction of its claim the amount of the unpaid
principal due it and the unpaid interest at the rate authorized by the
World War Adjusted Compensation Act, as amended, up to the date of the
check issued to the bank. If the veteran has not filed application for
final settlement of his adjusted service certificate under the
provisions of the Adjusted Compensation Payment Act, 1936, and demand is
made upon the bank to present the note and certificate for redemption
prior to the maturity date of the loan and during the lifetime of the
veteran, interest will be payable up to the date the check is issued to
the bank, or, if demanded by the bank, up to the maturity date of the
loan.
(b) If, however, an application for final settlement is filed and the
bank is notified to present the note and certificate to the Secretary
and does so within 15 days after the mailing of such notice interest
will be payable to the date the check is issued to the bank. If the
bank fails to forward the note and certificate within 15 days after the
mailing of the notice, interest shall be paid only up to the fifteenth
day after the mailing of such notice.
38 CFR 11.84 Redemption because of veteran's death.
If the veteran dies before the maturity of the loan, the amount of
the unpaid principal and the unpaid interest shall be immediately due
and payable. In such case, or if the veteran dies on the day the loan
matures or within six months thereafter, the bank holding the note and
certificate shall, upon notice of the death, present them to the
Secretary, who shall pay to the bank, in full satisfaction of its claim
the amount of the unpaid principal and unpaid interest, at the rate
authorized by the World War Adjusted Compensation Act, as amended,
accrued up to the date of the check issued to the bank; except that if,
prior to the payment, the bank is notified of the death by the Secretary
and fails to present the certificate and note to the Secretary within 15
days after the notice such interest shall be paid only up to the
fifteenth day after such notice.
38 CFR 11.85 Condition requisite for redemption.
In order to be eligible for redemption by the Department of Veterans
Affairs, the note and certificate must be accompanied by an affidavit of
a duly authorized officer (the capacity in which the officer serves must
be shown) of the lending bank showing that the said bank has not charged
or collected, or attempted to charge or collect, directly or indirectly,
any fee or other compensation in respect of the loan, or any other loan
made by the bank under the provisions of section 502 of the World War
Adjusted Compensation Act, except the rate of interest specified in the
section of the Act cited; that the person who obtained the loan is
known to the lending bank to be the person named in the Adjusted Service
Certificate; and that notice required by 11.77 was promptly given. In
case the note was sold or discounted by the lending bank, there should
be incorporated in the affidavit a statement that the veteran was
notified promptly of the transfer by mail to his last known address. In
case the note was resold or rediscounted by any other bank, affidavit
shall be made by a duly authorized officer of such bank that proper
notice of such resale or rediscount was promptly mailed to the veteran
at his last known address. The proper execution of the appropriate
affidavit on Form 6615 or 6615a will be considered as a compliance with
the requirements of this section. A single affidavit setting forth the
full particulars may be accepted to cover any number of veterans' notes
submitted for redemption at one time. The affidavit must be executed
before a judge of the United States court, a United States commissioner,
a United States district attorney, a United States marshal, a collector
of internal revenue, a collector of customs, a United States postmaster,
a clerk of court of record under the seal of the court, an executive
officer of an incorporated bank or trust company, under his official
designation and the seal of the bank or trust company, or a notary
public under his seal, or a diplomatic or consular officer of the United
States, under his official seal.
38 CFR 11.85 Disposition of Notes Secured by Adjusted Certificates
Redeemed from Banks by the Department of Veterans Affairs Under Section
502 of the World War Adjusted Compensation Act, as Amended (Pub. L. 120,
68th Cong.)
Source: Sections 11.88 to 11.93 appear at 13 FR 7126, Nov. 27,
1948, unless otherwise noted.
38 CFR 11.88 Cancellation of note.
When a veteran's note is redeemed by the Department of Veterans
Affairs, the note will be canceled and both the note and certificate
will be retained in the files of the Department of Veterans Affairs
until such time as settlement is made.
38 CFR 11.89 Notification of veteran.
When a note is redeemed notification will be sent to the veteran at
his last known address, advising him that the Department of Veterans
Affairs holds his note, and outlining the conditions governing
repayment.
38 CFR 11.91 Repayment of loans.
Should the veteran so desire, he may repay the amount due on his note
in full or in installments.
38 CFR 11.93 Failure to redeem.
(a) If the veteran fails to redeem his certificate before its
maturity there will be deducted from the face value of the certificate
the amount of the unpaid principal of the note of the veteran and the
unpaid interest thereon through September 30, 1931.
(b) If the veteran failed to redeem his certificate and died prior to
January 27, 1936, there will be deducted from the face value of the
certificate the amount of the unpaid principal of the veteran's note and
the unpaid interest thereon to the date of his death. If the veteran
died on or after January 27, 1936, the amount to be deducted when making
settlement will be the unpaid principal of the veteran's note and the
unpaid interest thereon through September 30, 1931.
38 CFR 11.93 Department of Veterans Affairs Loans on Adjusted Service
Certificates Under Section 502 of the World War Adjusted Compensation
Act, as Amended
Source: Sections 11.96 to 11.104 appear at 13 FR 7126, Nov. 27,
1948, unless otherwise noted.
38 CFR 11.96 By whom loans may be made.
Loans will be made by the Department of Veterans Affairs, Washington,
DC, to any veteran, upon his promissory note secured by his adjusted
service certificate, in any amount in even dollars not less than $10 and
not in excess of the loan value of the certificate at the date the loan
is made. Each certificate contains on its face a table for determining
the loan value of the certificate but at no time is the loan value less
than fifty per centum of the face value.
38 CFR 11.99 Identification.
Before a loan is made on an adjusted service certificate, the person
applying therefor will be identified as the person entitled to the
certificate offered as security. Such identification will be made in
accordance with 11.114.
(19 FR 5086, Aug. 12, 1954)
38 CFR 11.100 Form of note.
The form of note used in making loans secured by adjusted service
certificates shall follow Form 1185.
38 CFR 11.102 Term of note.
All loans will be for a period of one year and if not paid will be
automatically extended from year to year for periods of one year in the
amount of the principal plus interest accrued to the end of the
immediately preceding expired loan year, which total amount shall
automatically become a new principal each year provided a loan may be
paid off at any time by the payment of principal and accrued interest,
but in no event will interest accruing after September 30, 1931, be
deducted in final settlement of a certificate except as provided in
11.93(b).
38 CFR 11.104 Disposition of notes and certificates.
All notes and certificates shall be held in the custody of the
Department of Veterans Affairs, Washington, DC 20420.
(13 FR 7126, Nov. 27, 1948, as amended at 54 FR 34982, Aug. 23, 1989)
38 CFR 11.104 Application for Payment of Adjusted Service Certificate Under the Adjusted Compensation Payment Act, 1936 (Pub. L. 425, 74th Cong.)
38 CFR 11.109 Settlement of unmatured adjusted service certificates.
Where an application for final settlement of an adjusted service
certificate is received in the Department of Veterans Affairs prior to
the maturity date of the certificate, payment will be made under the
terms of the Adjusted Compensation Payment Act, 1936. This act provides
for payment of the amount due on the certificate, after deducting any
unpaid loans with interest through September 30, 1931, in adjusted
service bonds. These bonds will be issued by the Treasury Department in
denominations of $50, in the name of the veteran only, and will bear
interest at the rate of 3 percent per annum from June 15, 1936, to June
15, 1945. Any excess amount not sufficient to purchase a $50 bond will
be paid by check.
(19 FR 5087, Aug. 12, 1954)
38 CFR 11.110 Who may make application for final settlement.
A mentally competent veteran to whom an adjusted service certificate
has been issued.
(a) A legally appointed guardian of an incompetent veteran. An
application submitted by a legally appointed guardian must be
accompanied by letters of guardianship showing the fiduciary
relationship, provided such papers are not already on file in the
Department of Veterans Affairs.
(b) A representative of a physically incapacitated veteran. Where
application is made by a representative of a physically incapacitated
veteran, the representative must attach a statement describing the
veteran's incapacity. The correctness of such statement must be
certified by an officer as designated in 11.114.
(c) A superintendent or other bonded officer designated by the
Secretary of the Interior to receive funds under the provision of Pub.
L. No. 373, 72d Congress, may make application for an incompetent adult
or minor Indian who is a recognized ward of the Government. The
application must be accompanied by a certification from the
superintendent or other bonded officer showing: (1) That the said
beneficiary is a ward of the Government; (2) that no guardian or other
fiduciary has been appointed; (3) that the officer making application
has been designated by the Secretary of the Interior in accordance with
Pub. L. No. 373, 72d Congress; (4) that he is properly bonded; and
(5) that he will receive, handle, and account for such benefits in
accordance with existing law and regulations of the Department of
Interior.
(d) A manager of a Department of Veterans Affairs hospital, or a
manager or superintendent of a contract hospital or State institution
where the veteran is a patient may make application as custodian for the
veteran. Such application must be made with the approval of the
regional chief attorney.
(19 FR 5087, Aug. 12, 1954)
38 CFR 11.111 Form of application.
Application must be made on Department of Veterans Affairs Adjusted
Compensation Form 1701.
(13 FR 7127, Nov. 27, 1948)
38 CFR 11.114 Identification.
Before settlement is made on an adjusted service certificate, the
person applying therefor will be identified as the person entitled to
the settlement for which an application is made. If made in the United
States or possessions, certification will be accepted if made by a
United States postmaster or assistant postmaster over an impression of
the post office cancellation stamp; a commissioned officer of the
regular establishment of the Army, Navy, or Marine Corps; a member of
the United States Senate or the House of Representatives; an officer,
over his official title, of a post, chapter, or other comparable unit of
an organization recognized under Veterans Regulation No. 10 (38 U.S.C.
ch. 12A), or an officer over his official title, of the State or
national body of such organization, or any person who is legally
authorized to administer oaths in a State, Territory, possession,
District of Columbia, or in a Federal judicial district, of the United
States. If identification is made in a foreign country, it will be
certified by an American consul, a recognized representative of an
American Embassy or Legation, or by a person authorized to administer
oaths under the laws of the place where identification is made;
provided, there be attached to the certificate of such latter officer a
proper certification by an accredited official of the State Department
of the United States that such officer was authorized to administer
oaths in the place where certification was made. A manager of a
Department of Veterans Affairs hospital is authorized to identify
patients, members, or employees of the hospital over which he has
charge. An employee of the Department of Veterans Affairs who has been
specifically designated in writing to do so may identify applicants
during official hours and on the premises of the Department of Veterans
Affairs using for this purpose, if necessary, the official records of
the Department of Veterans Affairs. Field station finance employees may
not be designated for this purpose.
(a) Fingerprint impressions shall be required on the application and
shall be imprinted thereon in the presence of the persons identifying
the veteran. In the case of veterans who are mentally incapacitated and
application is being executed by a representative of the veteran, the
veterans' fingerprints will be obtained if possible. If this cannot be
done, as also in the case of an individual whose fingers are all
missing, a statement of explanation will be required.
(13 FR 7127, Nov. 27, 1948, as amended at 19 FR 5087, Aug. 12, 1954)
38 CFR 11.115 Where to file application.
The application for final settlement, accompanied by the veteran's
adjusted service certificate, unless the certificate is being held in
the Department of Veterans Affairs as collateral for a loan, must be
forwarded to the Manager, Veterans Benefits Office, Washington, DC
20421.
(19 FR 5087, Aug. 12, 1954)
38 CFR 11.116 Death of veteran before final settlement.
If the veteran dies after making application under the Adjusted
Compensation Payment Act, 1936, but before it is filed, it may be filed
by any person and will be considered valid if found to bear the
bona-fide signature of the applicant, discloses an intention to claim
benefits under the Act, and is filed before the maturity of the
certificate and before payment is made to the beneficiary. An
application made by the veteran or his legal representative shall
evidence his intention to claim the benefits of this Act; no other
evidence shall be acceptable.
(a) If the veteran's death occurs after the application is filed but
before payment is received under this Act, or if the application is
filed after death occurs but before the maturity of the certificate and
before payment is made to the beneficiary under section 501 of the World
War Adjusted Compensation Act, as amended, payment under this act shall
be made to the estate of the veteran irrespective of any beneficiary
designation.
(b) If the veteran dies without filing a valid application under this
Act, no payment under this Act shall be made. In such case, payment of
the certificate will be made under the World War Adjusted Compensation
Act, as amended, in accordance with 11.128; however, in making any
settlement there shall be deducted from the face value of the
certificate the amount of any outstanding loans and so much of the
unpaid interest as accrued prior to October 1, 1931.
(19 FR 5087, Aug. 12, 1954)
38 CFR 11.117 Missing applications.
Where the records of the Department of Veterans Affairs show that an
application, disclosing an intention to claim the benefits of this Act,
has been filed and the application cannot be found, such application
shall be presumed, in the absence of affirmative evidence to the
contrary, to have been valid when originally filed. The determination
of the correctness of this assumption shall be made by the Manager,
Veterans Benefits Office, Washington, DC, or his designee.
(19 FR 5087, Aug. 12, 1954)
38 CFR 11.117 Application for Payment of Adjusted Service Certificate
Under the World War Adjusted Compensation Act, as Amended (Pub. L. 120,
68th Cong.)
Source: Sections 11.125 to 11.130 appear at 19 FR 5087, Aug. 12,
1954, unless otherwise noted.
38 CFR 11.125 Settlement of matured adjusted service certificates.
Where an application for final settlement of an adjusted service
certificate is received in the Department of Veterans Affairs subsequent
to the date of maturity of the certificate, payment will be made under
the terms of the World War Adjusted Compensation Act, as amended. This
Act provides for payment of the face value of the certificate less any
outstanding indebtedness for loans obtained on the certificate;
however, interest accrued on the loans subsequent to September 30, 1931,
and unpaid will be canceled insofar as the veteran is concerned.
38 CFR 11.126 Form of application.
Either demand for payment (Form 1748) of application (Form 1701) may
be used by the veteran or his legal representative in applying for final
settlement of a matured certificate.
38 CFR 11.127 Identification.
Before payment may be made on the adjusted service certificate, the
person applying therefor will be identified as the person entitled to
payment for which application is made. Such identification will be
accepted if made by an authorized person as stated in 11.114; also,
fingerprint impressions shall be placed in the space provided on the
application in accordance with 11.114(a).
38 CFR 11.128 Veteran dies without having filed application for final
settlement.
If the veteran dies without having filed application for final
settlement under the Adjusted Compensation Payment Act, 1936, and the
certificate has not matured, payment will be made to the last designated
beneficiary or, if no beneficiary, to his estate. If the certificate
has matured, payment will be made to the veteran's estate regardless of
any beneficiary designation. Payment of the amount due on a deceased
veteran's certificate will be made only on an approved award based upon
receipt in the Department of Veterans Affairs of an application properly
executed by the person or persons entitled.
38 CFR 11.129 Form of application for payment of deceased veteran's
certificate.
Demand for payment (VA Form 8-582) is the proper form for use in
applying for payment of the amount due on a deceased veteran's
certificate.
38 CFR 11.130 Where to file applications.
Application for payment of a matured certificate or a deceased
veteran's certificate, accompanied by the adjusted service certificate,
unless it is held in the Department of Veterans Affairs as collateral
for a loan, must be forwarded to the Manager, Veterans Benefits Office,
Washington, DC, 20421.
38 CFR 11.130 PART 12 -- DISPOSITION OF VETERAN'S PERSONAL FUNDS AND
EFFECTS
Sec.
12.0 Definitions.
12.1 Designee cases; competent veterans.
12.2 Designee cases; incompetent veterans.
12.3 Deceased veteran's cases.
12.4 Disposition of effects and funds to designee; exceptions.
12.5 Nondesignee cases.
12.6 Cases of living veterans.
12.7 Cases not applicable to provisions of 12.0 to 12.6.
12.8 Unclaimed effects of veterans.
12.9 Rights of designate; sales instruction; transportation
charges.
12.10 Proceeds of sale.
12.12 Miscellaneous provisions.
12.13 Posting of notice of the provisions of Pub. L. No. 734, 75th
Congress (38 U.S.C. 16-16j).
12.15 Inventory of property.
12.16 Action on inventory and funds.
12.17 Unclaimed effects to be sold.
12.18 Disposition of funds and effects left by officers and enlisted
men on the active list of the Army, Navy or Marine Corps of the United
States.
Amending the Act of June 25, 1910 (24 U.S.C. 136)
12.19 Provisions of Pub. L. 382 (38 U.S.C. 17-17j).
12.20 Posting of notice provisions of Pub. L. 382.
12.21 Action upon death of veteran.
12.22 Disposition of personal property.
12.23 Recognition of valid claim against the General Post Fund.
12.24 Operation of lost and found service.
Authority: 72 Stat. 1114, 1259, as amended; 38 U.S.C. 501, 8510.
38 CFR 11.130 Disposition of Veteran's Personal Funds and Effects on Facility Upon Death, or Discharge, or Unauthorized Absence, and of Funds and Effects Found on Facility
38 CFR 12.0 Definitions.
(a) As used in respect to the disposition of property of veterans
dying at Department of Veterans Affairs medical centers or other field
facilities, or who are discharged or who elope, or are absent without
leave therefrom, and in respect to property found thereat, the term
funds means all types of United States currency and coin, checks payable
to the decedent except checks drawn on the Treasurer of the United
States which have never been negotiated, and includes deposits to the
credit of the veteran in the account ''Personal Funds of Patients,'' and
each competent veteran will be so advised. The term effects means and
embraces all other property of every description, including insurance
policies, certificates of stock, bonds and notes the obligation of the
United States or of others, and all other papers of every character
except checks drawn on the Treasurer of the United States, as well as
clothing, jewelry and other forms of property, or evidences of interest
therein. Checks drawn on the Treasurer of the United States which have
never been negotiated will be returned to the issuing office for
disposition.
(b) Field facilities as used in 12.1 to 12.13 includes hospitals,
centers, domiciliary activities, supply depots, and other offices over
which the Department of Veterans Affairs has direct and exclusive
administrative jurisdiction, and excludes State, county, city, private,
and contract hospitals and hospitals or other institutions operated by
the United States through agencies other than the Department of Veterans
Affairs. At institutions other than field facilities as herein defined
funds or effects as defined in paragraph (a) of this section, except for
funds derived from gratuitous benefits under laws administered by the
Department of Veterans Affairs and deposited by the Department of
Veterans Affairs in the account Personal Funds of Patients for
incompetent veterans, will be disposed of under the laws governing such
institutions. In any case where the veteran died intestate without
heirs or next of kin his or her personal property vests in the United
States. Disposition of the property will be made in accordance with the
provisions of 12.19 to 12.23.
(13 FR 7127, Nov. 27, 1948, as amended at 25 FR 1612, Feb. 25, 1960)
38 CFR 12.1 Designee cases; competent veterans.
(a) Each competent veteran now being cared for or who is hereafter
admitted to receive care as such at a Department of Veterans Affairs
field facility, unless it be detrimental to his or her health, will be
requested and encouraged to designate on the prescribed VA Form 10-P-10,
Application for Hospital Treatment or Domiciliary Care, the person to
whom he or she desires the Department of Veterans Affairs to deliver his
or her funds and effects in event of death. He or she may also
designate an alternate to whom delivery will be made if the first
designee fails or refuses to accept delivery. It should be clearly
understood that the delivery of such funds or effects will constitute
only a delivery of possession thereof, and such delivery is not intended
to affect in any manner the title to such funds or effects or determine
the person ultimately entitled to receive same from the person to whom
delivery is made (hereinafter in the regulations in this part termed the
designee). The person designated may not be an employee of the
Department of Veterans Affairs unless such employee be the wife (or
husband), child, grandchild, mother, father, grandmother, grandfather,
brother, or sister of the veteran. The veteran may in writing change or
revoke such designation at any time. If a veteran becomes incompetent,
any designation previously made will become inoperative with respect to
those funds deposited by the Department of Veterans Affairs in Personal
Funds of Patients which were derived from gratuitous benefits under laws
administered by the Department of Veterans Affairs. The guardian may
change or revoke the existing designation with respect to personal
effects and funds derived from other sources.
(b) Veterans will be encouraged to place in the custody of their
relatives articles of little or no utility value to them during their
period of care at a Department of Veterans Affairs field facility, and
to retain in their possession only such funds and effects as are
actually required and necessary for their immediate convenience.
(13 FR 7128, Nov. 27, 1948, as amended at 25 FR 1612, Feb. 25, 1960)
38 CFR 12.2 Designee cases; incompetent veterans.
(a) An incompetent veteran will not be informed concerning the
designation of a person to receive funds or effects; but if he or she
has a guardian the guardian will be requested to make such designation
of himself or herself or another person to receive possession of the
funds and effects (other than funds deposited by the Department of
Veterans Affairs in Personal Funds of Patients which were derived from
gratuitous benefits under laws administered by the Department of
Veterans Affairs) upon the incompetent's death. The guardian will sign
the letter designating himself or herself or another person with the
veteran's name ''By ---------- , guardian of his or her estate''.
(b) No effort will be made to obtain a designation by or on behalf of
an incompetent veteran who has no guardian.
(13 FR 7128, Nov. 27, 1948, as amended at 25 FR 1613, Feb. 25, 1960)
38 CFR 12.3 Deceased veteran's cases.
(a) Immediately upon the death or the absence without leave of any
beneficiary at a field facility, as defined in 12.0(b), a survey and
inventory of the funds and effects of such beneficiary will be taken in
the following manner:
(1) If the death or absence without leave occurred during
hospitalization, a complete inventory (VA Form 10-2687, Inventory of
Funds and Effects) will be made of all personal effects (including those
in the custody of the hospital, jewelry being worn by the deceased
person, or jewelry and other effects in pockets of clothing he or she
may have been wearing) and all funds found and moneys on deposit in
Personal Funds of Patients. In the case of death of incompetent
veterans after November 30, 1959, the inventory will be completed to
show separately those funds deposited by the Department of Veterans
Affairs in Personal Funds of Patients which were derived from gratuitous
benefits under laws administered by the Department of Veterans Affairs.
For purpose of determining the source of funds, expenditures from the
account will be considered as having been made from gratuitous benefits,
not to exceed the extent of deposits of such benefits. In the event
death occurred during other than official working hours, the officer of
the day and/or a representative of Nursing Service will collect and
inventory all funds and personal effects on the person of the deceased
beneficiary and on the ward, will carefully safeguard such property and,
upon completion of the tour of duty, will turn the funds and effects
over to the properly designated employees.
(2) If the death or absence without leave occurred while the
beneficiary was assigned to a domiciliary section, or while receiving
hospitalization and at time of death or absence without leave any
effects are in the section, a like inventory will be made by
representatives of the Chief, Domiciliary Operations and/or Medical
Administration Division.
(3) The inventory report will be executed in triplicate, original and
two copies. All will be signed by the employee making the inventory,
and disposed of as provided for in pertinent procedural instructions.
(4) Personally owned clothing or other effects (such as tooth
brushes, false teeth not containing gold, etc.), which are unserviceable
by reason of wear or tear or insanitary condition, and clothing that had
been supplied by the Government, will not be included in this inventory;
instead, the unserviceable personally owned articles will be listed on
a separate list, with their condition briefly described, and their
disposition recommended in a separate report to the facility head. The
facility head, if approving this recommendation, will order destruction
or utilization in occupational therapy, or as wipe rags, etc., of such
unserviceable articles and, when they are so destroyed or utilized, will
have entered on the papers the date and nature of the disposition. The
completed papers will then be placed in the correspondence file of the
beneficiary. Clothing that had been supplied by the Government will be
reconditioned if possible and returned to stock for issue to other
eligible beneficiaries. When Government-owned clothing cannot be
reconditioned it will be disposed of.
(5) When the nearest relative requests that the deceased beneficiary
be clad for burial in clothing he or she personally owned, instead of
burial clothing to be supplied under the contract for mortuary services,
such request will be honored. A receipt in such cases will be obtained
from the undertaker, specifying the articles of clothing so used.
Adjustment of the undertaker's bill in the case will correspondingly be
made.
(6) In accomplishing such inventories, detailed description will be
given of items of material value or importance, for example:
Watch -- Yellow metal (make, movement, and case number, if available
without damage to watch).
Ring -- Yellow metal (probably gold-plated or stamped 14-K., setting
if any).
Discharge certificate.
Adjusted service certificate (number).
Bonds or stocks (name of company, registered or nonregistered,
identifying number, recited par value, if any).
Bank books or other asset evidence (name of bank or other obligor,
apparent value, identifying numbers, etc.).
Clothing (brief description and statement of condition). Etc.
(b) Upon completion of the survey and inventory, the effects will be
turned over to the designated employee for safekeeping. Any funds found
in excess of $100 which apparently were the property of the deceased
will be turned over to the details clerk and delivered immediately to
the agent cashier, who shall deposit same in the account ''Personal
Funds of Patients''. Unendorsed checks other than Treasury checks and
funds not in excess of $100 will be considered personal effects and not
funds and will be handled accordingly.
(13 FR 7128, Nov. 27, 1948, as amended at 25 FR 1613, Feb. 25, 1960;
29 FR 17904, Dec. 17, 1964; 36 FR 5911, Mar. 31, 1971)
38 CFR 12.4 Disposition of effects and funds to designee; exceptions.
(a) Upon authorization by the facility head or his or her designated
representative, all funds, as defined in 12.0 (except funds on deposit
in Personal Funds of Patients derived from gratuitous benefits under
laws administered by the Department of Veterans Affairs and deposited by
the Department of Veterans Affairs where the veteran was incompetent at
time of death), and effects will be delivered or sent to the designee of
the deceased veteran if request therefor be made after death and within
90 days following the mailing of notice to such designee (see 12.9(a)),
unless:
(1) The executor or administrator of the estate of the deceased
veteran shall have notified the facility head or his or her designated
representative of his or her desire and readiness to receive such funds
or effects, in which event the facility head or his or her designated
representative will authorize delivery of all funds and effects to such
executor or administrator upon receipt of appropriate documentary
evidence of his or her qualifications and in exchange for appropriate
receipts, or
(2) An heir capable of inheriting the personal property of the
veteran makes claim for the funds and effects prior to delivery to the
designee.
(3) Subsequent to the naming of a designee the veteran became
incompetent and his or her guardian revoked such designation, in which
event the facility head or his or her designated representative will
deliver all funds and effects to his guardian in exchange for
appropriate receipts subject to the limitation contained in paragraph
(d) of this section, or
(4) Designee was the wife (or husband) of the veteran at the time of
designation, and information at the disposal of the field facility
indicates that she (or he) was thereafter divorced and the veteran was
incompetent at or subsequent to the time of divorce, or
(5) Notwithstanding there is a designee, it is probable that title
would pass to the United States under the provisions of 12.19 to 12.23
issued pursuant to 38 U.S.C. 5502(e) and 38 U.S.C. 8520(a), or
(6) The facility head or his or her designated representative
determines that there is reasonable ground to believe that the transfer
of such possession to the designee probably would be contrary to the
interests of the person legally entitled to the personal property, or
there are any other special circumstances raising a serious doubt as to
the propriety of such delivery to the designee.
In any case in which the facility head does not deliver the funds and
effects, because of the provisions of paragraphs (a)(3), (4), and (5) of
this section, he or she will develop all facts and refer the matter to
the Chief Attorney of the regional office having jurisdiction over the
area where the hospital is located, for advice as to the disposition
which legally should be made of such funds and effects.
(b) When authorized by the facility head or his or her designated
representative, the effects will be delivered or shipped to the
designee. If shipped at Government expense, the shipment shall be made
in the most economical manner but in no case at a cost in excess of $25.
If such expenses will exceed $25, the excess amount shall be paid by
the consignee to the facility head in advance. There will be no
obligation on the Government, initially or otherwise, to pay such
expenses in excess of $25.
(c) When possession of funds or effects is transferred to a designee,
the attention of the designee will again be directed to the fact that
possession only has been transferred to him or her and that such
transfer does not of itself affect title thereto and that such designee
will be accountable to the owner of said funds and effects under
applicable laws.
(d) Upon receipt from the proper Chief Attorney of an appropriate
certification that the guardianship was in full force and effect at the
time of the veteran's death and that the guardian's bond is adequate,
funds (other than funds deposited by the Department of Veterans Affairs
in Personal Funds of Patients derived from gratuitous benefits under
laws administered by the Department of Veterans Affairs) and effects of
an incompetent veteran may be immediately delivered or sent to such
guardian, inasmuch as the guardian had a right to possession, and he or
she will be accountable therefor to the party entitled to receive the
decedent's estate. If, however, it appears probable that decedent died
without a valid will and left no person surviving entitled to inherit,
the funds will not be paid to the former guardian but will be disposed
of as provided in 12.19(a). The effects will be sold, used, or
destroyed, at the discretion of the facility head or his designated
representative.
(25 FR 1613, Feb. 25, 1960, as amended at 29 FR 17904, Dec. 17, 1964)
38 CFR 12.5 Nondesignee cases.
(a) If there exists no designee at the time of death at a hospital,
domiciliary, or regional office of a veteran admitted as competent, or
the designee fails or refuses to claim the funds and effects as defined
in 12.0(a) within 90 days following the mailing of notice to such
designee, the facility head will take appropriate action to dispose of
the effects to the person or persons legally entitled thereto, i.e., the
executor or administrator of the decedent, or, if no notice of such an
appointment has been received, to the decedent's widow, child,
grandchild, mother, father, grandmother, grandfather, brother, or
sister, in the order named. Subject to the applicable provisions of
12.3 and 12.4, such delivery may be made at any time before the sale
contemplated by 12.9 to the designee or other person entitled under the
facts of the case. Delivery will be made to the person entitled to
priority as prescribed in this paragraph, unless such person waives
right to possession, in which event delivery will be to the person, if
any, in whose favor such prior entitled person waives right to
possession. If the waiver is not in favor of a particular person or
class, delivery will be to the person or persons next in order of
priority under this paragraph. If in any case there be more than one
person in the class entitled to priority, initially or by reason of
waiver, delivery will be made only to their joint designated agent (who
may, but need not, be one of the class), or to one of such class in his
or her own behalf upon written waiver of all others of the class
entitled thereto. The guardian of a minor or incompetent may waive his
or her ward's prior right to possession.
(b) Except where delivery is made to a designee, executor, or
administrator, funds of veterans who were competent at time of death
will be released to the person or persons who would ultimately be
entitled to distribution under the laws of the State of the decedent's
domicile. The person or persons entitled may waive in writing his or
her right to the funds in favor of another heir or next of kin.
(c) Funds of veterans who were incompetent at time of death occurring
after November 30, 1959, if derived from sources other than gratuitous
benefits deposited by the Department of Veterans Affairs in Personal
Funds of Patients under laws administered by the Department of Veterans
Affairs, will be disposed of in the same manner as for competent
veterans.
(d) Funds deposited by the Department of Veterans Affairs in Personal
Funds of Patients, at any office, for veterans who were incompetent at
time of death occurring after November 30, 1959 and which were derived
from gratuitous benefits under laws administered by the Department of
Veterans Affairs, will be paid upon receipt of proper application to the
following persons living at the time of settlement, and in the order
named: the surviving spouse, the children (without regard to age or
marital status) in equal parts, and the dependent parents of such
veteran, in equal parts. Any funds derived from gratuitous benefits not
disposed of in accordance with this paragraph shall be deposited to the
credit of the applicable current appropriation; except that there may
be paid only so much of such funds as may be necessary to reimburse a
person (other than a political subdivision of the United States) who
bore the expenses of last sickness or burial of the veteran for such
expenses.
(e) No payment shall be made under paragraph (d) of this section
unless claim therefor is filed with the Department of Veterans Affairs
within 5 years after the death of the veteran, except that, if any
person so entitled under such regulation is under legal disability at
the time of death of the veteran, such 5-year period of limitation shall
run from the termination or removal of the legal disability.
(18 FR 1854, Apr. 3, 1953 and 25 FR 1614, Feb. 25, 1960, as amended
at 29 FR 17904, Dec. 17, 1964)
38 CFR 12.6 Cases of living veterans.
(a) Except as provided in 12.8, effects of veterans absent without
leave or who have been discharged or have eloped (and who are not to be
returned to the field facility) will be disposed of as follows:
(1) To the owner if competent, or if deceased to his or her
administrator or executor or as directed in writing by such owner, or
his or her executor or administrator.
(2) To the guardian of the owner if the latter be incompetent, or if
deceased to his or her administrator or executor, or as directed in
writing by such guardian, executor or administrator.
(3) To the incompetent owner if he or she has no guardian; delivery,
however, to the incompetent owner may be withheld and may be made to the
person who is caring for such incompetent if, in the judgment of the
facility head or his or her designated representative, such delivery is
to the incompetent's best interest.
Note: The Government will not pay expense of transportation of
effects of competent or incompetent veterans discharged, on trail visit,
absent without leave, or who have eloped, except that personal effects
of a beneficiary discharged or on trail visit, or of a beneficiary being
transferred to another facility at Government expense, which are not
available at time of discharge, beginning of trail visit, or transfer of
the beneficiary, due to the articles being in custody of the Government,
may be shipped at Government expense.
(b) Funds of veterans absent without leave or who have been
discharged or have eloped (and who are not to be returned to the
station) will be disposed of in accordance with the provisions of
current Department of Veterans Affairs procedures.
(13 FR 7129, Nov. 27, 1948, as amended at 17 FR 1687, Feb. 26, 1952;
19 FR 9330, Dec. 30, 1954; 29 FR 17904, Dec. 17, 1964)
38 CFR 12.7 Cases not applicable to provisions of 12.0 to 12.6.
The provisions of 12.0 to 12.6 shall be inapplicable to property
known to be that of any person dying in or discharged or absent without
leave from a Department of Veterans Affairs field facility other than a
veteran admitted as such to such field facility.
(13 FR 7129, Nov. 27, 1948)
38 CFR 12.8 Unclaimed effects of veterans.
(a) In the case of any property of a veteran who was in receipt of
hospital or domiciliary care, heretofore or hereafter left at a
Department of Veterans Affairs field facility, the owner of which is
discharged or absent without leave or who has eloped and is not to be
returned to a Department of Veterans Affairs field facility, or has died
after departure therefrom, or in case the whereabouts or identity of any
owner of any property thereat be unknown, such property, unless it shall
be disposed of under the provisions of 12.4 and 12.6 shall be sold,
used, destroyed or otherwise disposed of as the manager or his or her
designated representative shall determine the circumstances in the case
may warrant. Any sale of such property shall be conditioned upon the
90-day notice provided in section 6 of the Act of June 25, 1938 (38
U.S.C. 5-16e).
(b) If the circumstances are such that retention of any property as
is mentioned in paragraph (a) of this section, or of any property of
unknown ownership found on the premises would endanger the health or
life of patients or others on the premises (by reason of contagion,
infection, or otherwise) such property shall be forthwith destroyed on
order of the manager or his or her designated representative, and proper
record of the action taken will be made.
(c) If there be no known claimant of any such property and if it may
be used at the field facility for the benefit of the members or patients
for such purposes as the General Post Fund is intended to serve, and if
the value is inconsequential, the manager or his or her designated
representative may authorize the retention and use of such property at
the field facility.
(d) Any such property which is not destroyed or used as provided in
paragraphs (b) and (c) of this section shall be sold in the manner
provided in 12.9 and 12.10, after notice as therein provided unless,
prior to sale, claim be made for any such property by someone legally
entitled thereto.
(13 FR 7129, Nov. 27, 1948)
38 CFR 12.9 Rights of designate; sales instruction; transportation
charges.
(a) Upon death of a veteran admitted as such to a field facility, the
Manager or his or her designated representative will cause notice (parts
I and V of VA Form 10-1171) to be sent to the designate: Provided,
however, That if the Manager or his or her designated representative has
information of the death of the primary designate, notice shall be sent
to the alternate designate and all of the provisions of the regulations
in this part respecting the designate will be deemed to apply to the
alternate. If the designate is a minor or a person known to be
incompetent, delivery of the funds or effects will be made only to the
designate's guardian or custodian upon qualification. The right of the
designate to receive possession ceases when he or she refuses to accept
delivery or if he or she fails to respond within 90 days after VA Form
10-1171 was mailed. When the right of a designate ceases, VA Form
10-1171 will be forwarded immediately to the alternate designate, whose
rights then become identical with those forfeited by the first
designate, and the rights of the alternate designate shall terminate at
the expiration of 90 days after VA Form 10-1171 was mailed to him or
her. Delivery will not be made to a designate until he or she submits a
signed statement to the effect that he or she understands that the
delivery of such funds and effects constitutes a delivery of possession
only and that such delivery is not intended to affect in any manner the
title thereto. Such notice shall fully identify the decedent and state
the fact that he or she designated the addressee to receive possession
of such property; that the right to receive possession thereof does not
affect the ownership but that the designate will be responsible for the
ultimate disposition thereof to those who, under applicable law, are
entitled to the decedent's property; and will request prompt advice as
to whether the designate will accept such property and that, if he or
she will, he or she furnish shipping instructions, upon receipt of which
the property will be shipped at the expense of the Government. However,
prior to dispatching such notice, it will be definitely determined that
the shipping expense will not exceed $25. If such expense will exceed
$25, the excess cost will be ascertained, and the notice will include a
statement of the amount of such excess shipping cost with request that
the amount thereof be remitted at the time shipping instructions are
furnished. In estimating the shipping expense, it will be assumed that
shipment to the designate will be to the same address as that to which
the notice is sent. Each notice, however, shall contain a statement
that in no event will the Government pay shipping expense in excess of
$25. The notice will include a copy of the inventory of the property
which it is proposed to deliver to the designate.
(b) Upon receipt of appropriate shipping instructions the property
will be shipped, transportation charges prepaid, by mail, express, or
freight as may be appropriate under the circumstances and most
economical to the Government. The expense of such shipment, chargeable
to the Government, in no case to exceed $25.00, is payable the same as
other administrative expenses of the Department of Veterans Affairs.
(c) The living owner of any property left or found at a field
facility will be promptly notified thereof. Except as provided in
12.6(a), transportation charges on property shipped to a living veteran
will not be paid by the Government. In such cases, shipment shall be
made as requested by the owner of the property (or his or her guardian)
upon receipt of necessary transportation charges, which will be prepaid,
unless the owner requests shipment with charges collect and the carrier
will accept such shipment without liability for such charges, contingent
or otherwise, upon the Government.
(d) If the designate refuses or, upon the lapse of 90 days, has
failed to take possession or request shipment of decedent's property
(paragraph (a) of this section), or if 90 days have elapsed after the
finding of any property and the owner (known or unknown) has failed to
request same, the manager or his or her designated representative will
authorize destruction, use or sale.
(e) If sale of the property is authorized the manager will take
necessary action to ascertain the names and addresses, of the owners;
or, in the event of the owner's decease, of his or her executor or
administrator, widow, child, grandchild, mother, father, grandmother,
grandfather, brother, or sister.
(f) When in possession of the necessary information the manager will
cause proper notice of sale (Form 4-1171) to be mailed. Such notice in
all cases shall disclose the identity, if known, of the decedent whose
property is to be sold and contain a copy of the inventory of such
property. A copy of such notice (Form 4-1171), after parts I, IV, and V
thereof are completed, shall be mailed to the owner, if known, or if
deceased to the decedent's executor or administrator, if known, and also
to the widow (or widower), child, grandchild, mother, father,
grandmother, grandfather, brother and sister, if known. If more than
one relative of the degree named is known, copy will be mailed to each.
If the owner is living, parts IV and V only of Form 4-1171 will be
completed.
(g) Copy of such notice (Form 4-1171, parts IV and V) will also be
posted by a responsible employee more than 21 years of age at:
(1) The field facility where the death occurred or property shall
have been found,
(2) The place where property is situated at the time such notice is
posted, and
(3) The place where probate notices are posted in the county wherein
the sale is to be had.
(h) In addition to showing the name of the owner, if known (alive or
deceased), and the inventory of the property to be sold, such notice
shall state the hour and day when and the precise place where the sale
will occur and that the same will be at public auction for cash upon
delivery without warranty, express or implied, and that such sale is
pursuant to the act of June 25, 1938 (38 U.S.C. 16-16j); and shall also
state that any person legally entitled to said property may claim the
same at any time prior to sale thereof and in the event of such claim by
a proper person the property will not be sold but will be delivered to
the person lawfully entitled thereto. Said notice shall also contain a
statement substantially to the effect that if sold the net proceeds of
sale may be claimed by the person who is legally entitled at any time
within 5 years after the date of notice; or in case of property the
ownership of which was not originally known, within 5 years after its
finding; otherwise such proceeds will be retained in the General Post
Fund, subject to disbursement for the purposes of such fund.
(i) The person (or persons) posting said notice of sale (Form 4-1171)
shall make appropriate affidavit on a copy thereof as to his or her
action in that respect and the manager or his or her designated
representative will also certify on the same copy as to the persons to
whom copies of such notice were mailed and the mailing dates. The copy
on which appear the affidavit and certificate as to service of the
notice will be retained in the facility file pertaining to the
disposition of such property.
(13 FR 7129, Nov. 27, 1948, as amended at 15 FR 663, Feb. 7, 1950;
23 FR 5, Jan. 1, 1958)
38 CFR 12.10 Proceeds of sale.
After proper notice as prescribed, sale of any such property which it
is proper to sell, will be made by public auction by the manager (or any
employee designated by him or her) at the time and place stated in the
notice of sale. The property will be sold to the highest bidder (no
employee except member employees of the Department of Veterans Affairs
shall purchase any of this property) and forthwith delivered and the
amount of the bid collected and deposited to the credit of ''General
Post Fund, Department of Veterans Affairs.'' Care will be taken to
segregate the property of each owner and separate account will be
maintained as to the proceeds of sale thereof. Property not disposed of
by public auction will be included in the next sale or will be used or
destroyed as the value thereof warrants at the discretion of the
manager.
(13 FR 7130, Nov. 27, 1948)
38 CFR 12.12 Miscellaneous provisions.
If it is shown that some person other than the veteran has title to
property in a veteran's possession at the time of death, nothing
contained in 12.0 to 12.12 shall be construed as prohibiting delivery
of such property to the owner. A life insurance policy may be delivered
to the beneficiary therein named if the insured is deceased,
notwithstanding the veteran has designated a person to whom possession
of his or her property at the field facility is to be transferred. In
no case will funds or effects be delivered to a minor, or to an
incompetent person other than as provided in 12.9 (a) and (c), but
where any such person is entitled to title or possession delivery may be
made to his or her guardian.
(13 FR 7130, Nov. 27, 1948)
38 CFR 12.13 Posting of notice of the provisions of Pub. L. No. 734,
75th Congress (38 U.S.C. 16-16j).
In order that all persons who bring property on premises of the
Department of Veterans Affairs may be advised of the existence of the
act of June 25, 1938 (38 U.S.C. 16-16j), and that it affects such
property, notice thereof (Form 4-1182), shall be permanently posted in
at least one prominent place on the premises of each field facility
where persons are likely to see such notice.
(13 FR 7130, Nov. 27, 1948)
38 CFR 12.13 Disposition of Personal Funds and Effects Left Upon Premises of the Department of Veterans Affairs By Non-Veteran Patients, Employees and Other Persons, Known or Unknown
38 CFR 12.15 Inventory of property.
Immediately upon the death at a Department of Veterans Affairs field
facility of a person who was not admitted as a veteran, or immediately
after it is ascertained that any such person has absented himself or
herself from such field facility, a survey and inventory of the personal
funds and effects of such deceased or absent person will be made in the
manner prescribed in 12.3(a).
(13 FR 7130, Nov. 27, 1948)
38 CFR 12.16 Action on inventory and funds.
(a) The manager will dispose of the personal funds and effects as
promptly as possible. No expense will be incurred by the Government for
shipment of the effects.
(b) In making disposition of funds and effects the manager will
release the funds to the owner if living and will release the effects to
him or her or as directed by him or her, provided that if he or she is
incompetent and has a guardian the funds and effects will be released to
such guardian. If the owner is deceased, and left a last will and
testament probated under the laws of the place of his or her last legal
domicile or under the laws of the State, territory, insular possession,
or dependency, within which the field facility may be, the personal
property of such decedent situated upon such premises will be released
to the executor. If such person left on said premises funds or effects
not disposed of by a will probated in accordance with the provisions of
this paragraph, such property shall be released to the administrator, if
one has been appointed.
(c) In those cases where there is neither an administrator nor an
executor the funds and effects will be released to the person entitled
to inherit the personal property of the decedent under the intestacy
laws of the State where the decedent was last domiciled.
(d) Where disposition of the funds and effects cannot be accomplished
under the provisions of paragraphs (b) and (c) of this section, the
funds, at the expiration of 90 days will be deposited to the General
Post Fund and the effects will be disposed of in accordance with the
provisions of 12.8, 12.9, and 12.10.
(13 FR 7131, Nov. 27, 1948, as amended at 14 FR 4726, July 28, 1949)
38 CFR 12.17 Unclaimed effects to be sold.
(a) Personal effects of persons referred to in 12.15 which remain
unclaimed for 90 days after the death or departure of the owner shall be
sold in the manner provided by 12.8. The owner, his or her personal
representative, or next of kin may reclaim any such property upon
request therefor at any time prior to the sale.
(b) Any unclaimed funds and the proceeds of any effects sold as
unclaimed will be deposited to the General Post Fund subject to be
reclaimed within five years after notice of sale, by or on behalf of any
person or persons who, if known, would have been entitled to the
property prior to the sale.
(13 FR 7131, Nov. 27, 1948, as amended at 14 FR 4726, July 28, 1949)
38 CFR 12.18 Disposition of funds and effects left by officers and
enlisted men on the active list of the Army, Navy or Marine Corps of the
United States.
(a) The manager will notify the commanding officer of the death or
absence of such patient and will deliver to the commanding officer,
without expense to the Department of Veterans Affairs, the funds and
effects of the deceased or absent officer, or enlisted man procuring a
receipt therefor.
(b) If the funds and effects are not delivered to the commanding
officer within seven days after the death or absence without leave of an
officer, or enlisted man, the funds will be deposited in the Personal
Funds of Patients. If not disposed of at the expiration of 90 days
after the date of death or absence, the funds will be transferred to the
General Post Fund and the effects will be handled in accordance with
regulations governing the disposition of unclaimed effects left by
veterans. The funds and the proceeds derived from the sale of the
personal effects will be paid to the person lawfully entitled thereto,
providing claim is made within five years from the date of notice of
sale, or in the case of legal disability within five years after
termination of legal disability.
(13 FR 7131, Nov. 27, 1948, as amended at 14 FR 4726, July 28, 1949)
38 CFR 12.18 Under Pub. L. 382, 77th Congress, December 26, 1941, Amending the Act of June 25, 1910 (24 U.S.C. 136)
38 CFR 12.19 Provisions of Pub. L. 382 (38 U.S.C. 17-17j).
(a) Whenever any veteran (admitted as a veteran) shall die in any
Department of Veterans Affairs hospital, center, or domiciliary activity
or in any Federal, State, or private hospital or other institution,
while being furnished care or treatment therein by the Department of
Veterans Affairs, without leaving a will and without leaving any spouse,
heirs, or next of kin entitled to his or her personal property, all such
property, except funds on deposit in Personal Funds of Patients to the
credit of an incompetent beneficiary, derived from payments of
compensation, automatic or term insurance, emergency officers'
retirement pay or pension, shall immediately vest in and become the
property of the United States as trustee for the sole use and benefit of
the General Post Fund, subject to claim as elsewhere provided. Funds to
the credit of an incompetent beneficiary derived from payments of
compensation, automatic or term insurance, emergency officers'
retirement pay or pension will be deposited to the credit of the current
appropriations provided for the payment of compensation, insurance or
pension.
(b) Personal property as used in this section shall include cash,
funds on deposit in Personal Funds of Patients, bank accounts,
certificates of stock, bonds, and notes, the obligation of the United
States or of others, money orders, checks, insurance policies the
proceeds of which are payable to the veteran or his or her estate,
postal savings certificates, money and choses in action, and all other
papers of every character; also clothing, jewelry, and all other forms
of personalty, or evidences of interest therein.
(19 FR 9330, Dec. 30, 1954)
38 CFR 12.20 Posting of notice provisions of Pub. L. 382.
(a) VA Form 10-P-10, Application for Hospital Treatment or
Domiciliary Care, includes notice to the applicant that the acceptance
of care or treatment by any veteran shall constitute acceptance of the
provisions of the act. Similar notice shall be given to each veteran
receiving care as of March 26, 1942, by posting notice in a prominent
place in each building wherein patients or members are housed. Such
notices shall be posted immediately and kept posted.
(b) Since the provisions of the law are applicable to all veterans
receiving care at the expense of the Department of Veterans Affairs
(whether in contract, Federal, State or private hospital) it shall be
the responsibility of the Department of Veterans Affairs officer
authorizing admission of a veteran to other than a Department of
Veterans Affairs hospital, center or home, to cause the chief officer of
such institution to post in a conspicuous place, in all buildings where
veterans are housed, the provisions of 12.19(a), or if he or she
declines to post such provisions, notify the patients individually and
supply a statement from each acknowledging notice. Such provisions
supersede in part the provisions of Form 10-P-10, executed prior to
March 26, 1942.
(13 FR 7131, Nov. 27, 1948, as amended at 14 FR 243, Jan. 18, 1949)
38 CFR 12.21 Action upon death of veteran.
Upon the death of a veteran at a Department of Veterans Affairs
hospital, center or domiciliary activity while receiving care or
treatment therein, and who it is believed leaves no will or heirs or
next of kin entitled to his or her personal property, regardless of
whether VA Form 10-P-10, executed by the veteran, names a designee, an
inventory of the funds and effects, VA Form 10-2687, will be promptly
prepared and supplemented by all information or evidence available as to
personal property owned by the veteran in addition to that left at the
place of death; similar action will be taken when the death of such a
veteran hospitalized by the Department of Veterans Affairs occurs at a
contract hospital, Army, Navy, Marine or other hospital. Such
inventories and information together with any bank books, stocks, bonds,
or other valuable paper as enumerated in 12.19(b), left in the effects
of the veteran, will be delivered to the manager of the Department of
Veterans Affairs hospital, center, or domiciliary activity having
jurisdiction, for disposition in accordance with existing regulations.
(14 FR 243, Jan. 18, 1949)
38 CFR 12.22 Disposition of personal property.
Any assets heretofore or hereafter accruing to the benefit of the
General Post Fund, including stocks, bonds, checks, bank deposits,
savings certificates, money orders, and similar assets, will be sold or
otherwise converted into cash, except that articles of personal
adornment which are obviously of sentimental value shall, if unclaimed,
be retained for 5 years from the date of death of the veteran, unless
for sanitary or other reasons their retention is deemed unsafe.
Possession of effects other than those located on the premises of the
Department of Veterans Affairs will be obtained, except that if
transportation, storage, etc., is involved, determination will be made
as to whether expenditure therefor is warranted. Proceeds from the
conversion or sale will be deposited to the credit of the General Post
Fund. Funds on deposit in Personal Funds of Patients will be
transferred to the General Post Fund. Any claims against the estate of
the deceased veteran will be adjudicated and paid, if valid.
(33 FR 1073, Jan. 27, 1968)
38 CFR 12.23 Recognition of valid claim against the General Post Fund.
Effective December 26, 1941, the assets of the estate of a veteran
theretofore or thereafter deposited to the General Post Fund are subject
to the valid claims of creditors presented to the Department of Veterans
Affairs within 1 year from the date of death or otherwise as provided by
any applicable law. Any heir, next of kin, legatee, or other person
found to be legally entitled to the personal property of the veteran may
claim same within 5 years from the date of the veteran's death. If
claimant is under any legal disability (as a minor, incompetent, etc.)
at the date of the veteran's death, the 5-year period begins upon the
termination of removal of legal disability. Such claims are for
settlement by the field facility which had originally made the deposit.
In the event of doubt as to entitlement or the necessity of legal
proceedings to obtain assets for the benefit of the General Post Fund,
the case will be referred to the Chief Attorney of jurisdiction for
advice and/or appropriate action. Any necessary court costs or expenses
will be paid from the appropriation, General Operating Expenses,
Department of Veterans Affairs.
(33 FR 1073, Jan. 27, 1968)
38 CFR 12.23 Operation of Lost and Found Service
38 CFR 12.24 Operation of lost and found service.
Unless maintained by the Public Buildings Service, the lost and found
service will be maintained by an employee designated by the Manager to
be known as the lost and found custodian. VA Form 3771, Record of Lost
or Found Article, will be used for recording articles of any personal
property lost or found. Every effort will be made to determine rightful
ownership of found articles and to recover items which have been
reported lost. Currency, including readily negotiable instruments,
found and delivered to the lost and found custodian will not be retained
beyond the official closing hour. The currency or negotiable
instruments will be delivered to the agent cashier before the close of
business. Individuals claiming found articles will furnish complete
identification and satisfy the facility authority of rightful ownership.
Where more than one individual claims ownership the matter will be
referred to the Manager for decision. All articles of personal property
remaining unclaimed for 90 days or more will be disposed of in
accordance with 12.8.
(21 FR 3875, June 6, 1956)
38 CFR 12.24 PART 13 -- VETERANS BENEFITS ADMINISTRATION, FIDUCIARY
ACTIVITIES
Sec.
13.1 Authority.
13.2 Field examinations.
13.3 State legislation.
13.55 Veterans Services Officer to select and appoint or recommend
for appointment the person or legal entity to receive Department of
Veterans Affairs benefits in a fiduciary capacity.
13.56 Direct payment.
13.57 Payment to the wife or husband of incompetent veteran.
13.58 Legal custodian.
13.59 Court-appointed fiduciary.
13.61 Payment to the chief officer of institution.
13.62 Payment to bonded officer of Indian reservation.
13.63 Payment to custodian-in-fact.
13.64 Fiduciary commissions.
13.69 Limitation of beneficiaries to individual fiduciary.
13.70 Apportionment of benefits to dependents.
13.71 Payment of cost of veteran's maintenance in institution.
13.72 Release of funds from Personal Funds of Patients.
13.73 Transfer of funds from funds due incompetent beneficiaries.
13.74 Recommendation for payment.
13.75 Beneficiaries in penal institutions.
13.76 Appeals from Veterans Services Officer's determination under 38
U.S.C. 5503(b)(2).
13.77 Administrative review of the Veterans Services Officer's
determination made under 38 U.S.C. 5503(b)(2).
13.100 Supervision of fiduciaries.
13.101 Management and use of estates of minors.
13.102 Accountability of legal custodians.
13.103 Investments by Federal fiduciaries.
13.104 Accounts of court-appointed fiduciaries.
13.105 Surety bonds.
13.106 Investments by court-appointed fiduciaries.
13.107 Accounts of chief officers of public or private institutions.
13.108 Estate $1,500; 38 U.S.C. 5503(b)(1).
13.109 Determination of value of estate; 38 U.S.C. 5503(b)(1)(A) and
38 U.S.C. 5505.
13.110 Escheat; post fund.
13.111 Claims of creditors.
Authority: 72 Stat. 1114, 1232, as amended, 1237; 38 U.S.C. 501,
5502, 5503, 5711, unless otherwise noted.
38 CFR 13.1 Authority.
The regulations in this part are issued pursuant to 38 U.S.C. 501 to
reflect action under 38 U.S.C. 512 and to implement 38 U.S.C. 5301,
5502, 5503, 5711 and 8520. The duties, the delegations of authority,
and all actions required of the Veterans Services Officer set forth in
13.1 through 13.111 inclusive, are to be performed under the direction
of, and authority vested in, the Director of the field facility.
(40 FR 54247, Nov. 21, 1975)
38 CFR 13.2 Field examinations.
(a) Authority to conduct; generally. Field personnel in the Office
of the Veterans Services Division and other employees who are qualified
and designated by the field facility Director are authorized, when
assigned, to conduct investigations (field examinations) and examine
witnesses upon any matter within the jurisdiction of the Department of
Veterans Affairs, to take affidavits, to administer oaths and
affirmations, to certify copies of public or private documents and to
aid claimants in the preparation of claims.
(b) Scope of field examinations; fiduciary activities. Field
examinations include but are not limited to the following:
(1) Matters involving the administration of estates and the welfare
of beneficiaries of the Department of Veterans Affairs who are under
legal disability or in need of supervision by the Veterans Services
Officer.
(2) Matters involving the welfare and needs of dependents of
incompetent beneficiaries.
(3) Recovery of amounts due the Government or General Post Fund under
laws administered by the Department of Veterans Affairs.
(40 FR 54247, Nov. 21, 1975)
38 CFR 13.3 State legislation.
Field facility Directors are authorized to cooperate with the
affiliated organizations, legislative committees, and through the
General Counsel with local and State bar associations, to the end that
deficiencies of the State laws relating to Department of Veterans
Affairs operations may be removed. No action to commit the Department
of Veterans Affairs regarding any proposed legislation relating to
fiduciary matters will be taken without the approval of the Chief
Benefits Director or designee.
(40 FR 54247, Nov. 21, 1975)
38 CFR 13.55 Veterans Services Officer to select and appoint or
recommend for appointment the person or legal entity to receive
Department of Veterans Affairs benefits in a fiduciary capacity.
(a) Authority. The Veterans Services Officer is authorized to select
and appoint (or in the case of a court-appointed fiduciary, to recommend
for appointment) the person or legal entity best suited to receive
Department of Veterans Affairs benefits in a fiduciary capacity for a
beneficiary who is mentally ill (incompetent) or under legal disability
by reason of minority or court action, and beneficiary's dependents.
(b) Payees. Authorized payees include:
(1) The beneficiary ( 13.56(c));
(2) The beneficiary under supervision (supervised direct payment) (
13.56 (a) and (b));
(3) The wife or husband of an incompetent veteran ( 13.57);
(4) The legal custodian of a beneficiary's Department of Veterans
Affairs benefits ( 13.58);
(5) A court-appointed fiduciary of a beneficiary ( 13.59);
(6) The chief officer of the institution in which the veteran is
receiving care and treatment ( 13.61);
(7) The bonded officer of an Indian reservation ( 13.62);
(8) A custodian-in-fact of the beneficiary ( 13.63);
(9) Dependents of the veteran by an apportioned award ( 13.70).
(c) Certification. The Veterans Services Officer's certification is
authority to make payments to the designated payee.
(40 FR 54247, Nov. 21, 1975)
38 CFR 13.56 Direct payment.
(a) Veterans. Department of Veterans Affairs benefits payable to a
veteran rated incompetent may be paid directly to the veteran in such
amount as the Veterans Services Officer determines the veteran is able
to manage with continuing supervision by the Veterans Services Officer,
provided a fiduciary is not otherwise required. If it is determined
that an amount less than the full entitlement is to be paid, such
payment shall be for a limited period of time, generally 6 months, but
in no event to exceed 1 year, after which full payment will be made and
any funds withheld as a result of this section will be released to the
veteran, if not otherwise payable to a fiduciary.
(b) Other adults. Department of Veterans Affairs benefits payable to
an adult beneficiary who has been rated or judicially declared
incompetent may be paid directly to the beneficiary in such amounts as
the Veterans Services Officer determines the beneficiary is able to
mange with continuing supervision by the Veterans Services Officer,
provided a fiduciary is not otherwise required. If it is determined
that an amount less than the full entitlement is to be paid, such
payment shall be for a limited period of time, generally 6 months, but
in no event to exceed 1 year, after which full payment will be made and
any funds withheld as a result of this section will be released to the
beneficiary, if not otherwise payable to a fiduciary.
(c) Minors. Department of Veterans Affairs benefits payable to a
minor:
(1) May be paid direct when:
(i) Arising in connection with a program of education or training
under 38 U.S.C. ch. 35.
(ii) The Veterans Services Officer determines it would be in the
minor's best interests.
(2) Will be paid direct when:
(i) The beneficiary's only legal disability is minority and he or she
is in active military, naval, or air service, or the widow or widower of
a veteran.
(ii) The minor is deemed otherwise emancipated under State law.
(40 FR 54247, Nov. 21, 1975, as amended at 42 FR 34282, July 5, 1977)
38 CFR 13.57 Payment to the wife or husband of incompetent veteran.
Compensation, pension or emergency officers' retirement pay of a
veteran rated or judicially declared incompetent, may be paid to the
veteran's spouse, provided the spouse is qualified to administer the
funds payable and agrees to use the amounts paid for the veteran and the
veteran's dependents, if any.
(40 FR 54247, Nov. 21, 1975)
38 CFR 13.58 Legal custodian.
(a) Authority. The Veterans Services Officer is authorized to make
determinations as to the person or legal entity to be appointed legal
custodian to receive Department of Veterans Affairs payments on behalf
of a beneficiary who is incompetent or under legal disability by reason
of minority or court action. In the absence of special circumstances,
the person or legal entity to be appointed legal custodian will be the
person or legal entity caring for and/or having custody of the
beneficiary or the beneficiary's estate.
(b) Payment to. Department of Veterans Affairs benefits may be paid
to a legal custodian subject to the following conditions:
(1) The Veterans Services Officer has determined that it would be in
the best interests of the beneficiary to appoint a legal custodian.
(2) The proposed legal custodian is qualified to administer the
benefits payable and will agree to:
(i) Apply the benefits paid for the best interests of the
beneficiary,
(ii) Invest surplus funds as provided by Department of Veterans
Affairs regulations,
(iii) Furnish, upon request, evidence of compliance with agreement as
to usage and investment of Department of Veterans Affairs benefits, and
(iv) Inform the Veterans Services Officer of any change in the
beneficiary's estate or any other circumstances that might affect
entitlement or the manner in which payments are to be made.
(40 FR 54247, Nov. 21, 1975)
38 CFR 13.59 Court-appointed fiduciary.
(a) Payment to. Any Department of Veterans Affairs benefit may be
paid to the fiduciary appointed by a State court for a beneficiary who
is a minor, or incompetent or under other legal disability adjudged by a
court of competent jurisdiction. Formal or informal accountings may be
required from such fiduciaries, with or without judicial proceedings.
(b) Veterans Services Officer's responsibility. The Veterans
Services Officer shall: (1) Determine and recommend to the District
Counsel the person or legal entity best fitted for appointment as State
court fiduciary for the particular beneficiary. Necessary legal action
will be taken by the District Counsel.
(2) Upon advice from the District Counsel that the fiduciary has been
appointed, issue appropriate certification thereof so that payment of
benefits can be made to such fiduciary.
(40 FR 54247, Nov. 21, 1975)
38 CFR 13.61 Payment to the chief officer of institution.
The Veterans Services Officer may authorize the payment of all or
part of the pension, compensation or emergency officers' retirement pay
payable in behalf of a veteran rated incompetent by the Department of
Veterans Affairs to the chief officer of the institution wherein the
veteran is being furnished hospital treatment or institutional, nursing
or domiciliary care, for the veteran's use and benefit, when the
Veterans Services Officer has determined such payment (called an
institutional award) will adequately provide for the needs of the
veteran and obviate need for appointment of another type of fiduciary.
(40 FR 54248, Nov. 21, 1975)
38 CFR 13.62 Payment to bonded officer of Indian reservation.
Any benefits due an incompetent adult or minor Indian, who is a
recognized ward of the Government, may be awarded to the superintendent
or other bonded officer designated by the Secretary of the Interior to
receive funds under 25 U.S.C. 14.
(40 FR 54248, Nov. 21, 1975)
38 CFR 13.63 Payment to custodian-in-fact.
All or any part of a benefit due a minor or incompetent adult,
payment of which is suspended or withheld because payment may not be
properly made to an existing fiduciary, may be paid temporarily to the
person having custody and control of the beneficiary.
(36 FR 19023, Sept. 25, 1971)
38 CFR 13.64 Fiduciary commissions.
Generally, a VA appointed fiduciary is to be encouraged to serve
without fee.
(a) Authority. The Veterans Services Officer is authorized to
determine when a commission is necessary in order to obtain the services
of a fiduciary, except that the Veterans Services Officer may not
authorize a commission to a fiduciary who receives any other form of
remuneration or payment in connection with rendering fiduciary services
on behalf of the beneficiary. Necessity is established only if the
beneficiary's best interest would be served by the appointment of a
qualified professional, or, if a qualified professional is not
available, the proposed fiduciary is the only qualified person available
and is not willing to serve without a fee.
(b) Amount; notice to beneficiary. The Veterans Services Officer
shall authorize a fiduciary to whom a commission is payable under
paragraph (a) of this section to deduct from the beneficiary's estate a
reasonable commission for fiduciary services rendered. The commission
for any year may not exceed 4 percent of the monetary benefits paid by
VA on behalf of the beneficiary to the fiduciary during that year; a
year being the normal 12 month period following the anniversary date of
appointment. The Veterans Services Officer shall furnish appropriate
notice to the beneficiary, either directly or through the fiduciary,
that a commission is payable.
(c) Persons who may be excluded. Commissions may not be authorized
to dependents of the beneficiary or other close relatives acting in a
fiduciary capacity on behalf of the beneficiary, except under
extraordinary circumstances.
(Authority: 38 U.S.C. 5502; Pub. L. 98-223)
(51 FR 26157, July 21, 1986)
38 CFR 13.69 Limitation of beneficiaries to individual fiduciary.
For purposes of payment of Department of Veterans Affairs benefits,
the number of beneficiaries for whom an individual fiduciary may act
will be limited to the number the fiduciary may be reasonably expected
to properly serve. When, in the judgment of the Veterans Services
Officer, a fiduciary has been appointed or is seeking appointment in a
case in excess of that number, the Veterans Services Officer will
initiate action to obtain a suitable substitute fiduciary.
(40 FR 54248, Nov. 21, 1975)
38 CFR 13.70 Apportionment of benefits to dependents.
(a) Incompetent veterans being furnished hospital treatment,
institutional or domiciliary care by United States or political
subdivision thereof. (1) When compensation, pension or emergency
officers' retirement pay is payable in behalf of a veteran who is
incompetent or under other legal disability by court action, the
Veterans Services Officer may recommend such apportionment to or in
behalf of the veteran's spouse, child or dependent parent as may be
necessary to provide for their needs.
(2) When payment of compensation, pension or emergency officers'
retirement pay, in behalf of a veteran rated incompetent by the
Department of Veterans Affairs by reason of mental illness has no spouse
or child and is being furnished hospital treatment, institutional or
domiciliary care by the United States or a political subdivision
thereof, has been stopped because his or her estate equals or exceeds
$1,500, the Veterans Services Officer may recommend the payment of so
much of the benefit otherwise payable as is necessary to provide for the
needs of dependent parent or parents. (See 13.74(b) and 13.108(b).)
(b) Dependent parents. When the compensation of a veteran paid to
his or her fiduciary includes an additional amount for a dependent
parent or parents and the fiduciary neglects or refuses to make an
equivalent contribution for their support, the Veterans Services Officer
may recommend the apportionment to the parent or parents of the
additional amount.
(c) Payments withheld because of fiduciary's failure to properly
administer veteran's estate. When payments of compensation, pension or
emergency officers' retirement pay in behalf of a veteran have been
stopped because of the fiduciary's failure or inability to properly
account or otherwise administer the estate, the Veterans Services
Officer may recommend the apportionment to the veteran's spouse, child
or dependent parent of any benefit not paid under an institutional award
or to a custodian-in-fact.
(40 FR 54248, Nov. 21, 1975, as amended at 51 FR 26158, July 21,
1986)
38 CFR 13.71 Payment of cost of veteran's maintenance in institution.
(a) By institutional award. (1) The payment of part of compensation,
pension or emergency officers' retirement pay for the cost of a
veteran's hospital treatment, institutional or domiciliary care in an
institution operated by a political subdivision of the United States may
be authorized as provided in paragraph (a)(2) of this section when:
(i) The veteran is rated incompetent by the Department of Veterans
Affairs.
(ii) It has been determined the veteran is legally liable for the
cost of his or her maintenance, and
(iii) The institution's representative has asserted or probably will
assert a claim for full maintenance costs.
(2) Subject to these conditions and the further condition that the
responsible official of the institution or political subdivision will
agree not to assert against Department of Veterans Affairs benefits any
further claim for maintenance during the veteran's lifetime, the
Veterans Services Officer may agree with such official to the payment of
the veteran's benefits through an institutional award to be applied to:
(i) A monthly amount determined by the Veterans Services Officer to
be needed for the veteran's personal use,
(ii) An amount to be agreed upon to be accumulated to provide for the
veteran's rehabilitation upon release from the institution, and
(iii) So much of the amount of the benefit as remains not exceeding
the amount the Veterans Services Officer shall determine to be the
proper charge as fixed by statute or administrative regulation, to the
cost of the veteran's maintenance.
(3) Upon execution of an agreement as provided in paragraph (a)(2) of
this section, the Veterans Services Officer may certify to the
Adjudication Division the total amount to be released to the chief
officer of the institution.
(b) By care and maintenance award. When payment of compensation,
pension or emergency officers' retirement pay in behalf of a veteran
rated incompetent by VA, who has no spouse or child and is being
furnished hospital treatment, institutional or domiciliary care by a
political subdivision of the United States, has been stopped because his
or her estate has reached $1,500, the Veterans Services Officer may
certify to the Adjudication Division the amount to be released to the
responsible official to pay for the cost of the veteran's current care
and maintenance. The amounts paid in such cases shall not exceed the
amount of the benefit otherwise payable less any amounts apportioned to
dependent parents and in no event exceed the amount which the Veterans
Services Officer shall determine to be the proper charge as fixed by
statute or administrative regulation. (See 13.74(b) and 13.108(b).)
(Authority: 38 U.S.C. 501)
(40 FR 54248, Nov. 21, 1975, as amended at 51 FR 26158, July 21,
1986)
38 CFR 13.72 Release of funds from Personal Funds of Patients.
Veterans Services Officers may authorize release of funds from
Personal Funds of Patients for the needs of veterans and their
dependents, including amounts fixed by statute or administrative
regulations as the cost of current maintenance of veterans in
institutions of the United States or a political subdivision thereof
other than Department of Veterans Affairs institutions.
(40 FR 54248, Nov. 21, 1975)
38 CFR 13.73 Transfer of funds from funds due incompetent
beneficiaries.
Veterans Services Officers may, when required for the benefit of the
veteran and/or the veteran's dependents, authorize the transfer of
amounts credited to veterans in Funds Due Incompetent Beneficiaries to
Department of Veterans Affairs Personal Funds of Patients accounts or to
chief officers of non-Department of Veterans Affairs institutions for
the accounts of institutionalized veterans.
(40 FR 54248, Nov. 21, 1975)
38 CFR 13.74 Recommendation for payment.
(a) General. When veterans' benefits are discontinued under 38
U.S.C. 5503(b)(1), Veterans Services Officers are delegated authority to
recommend apportionments or awards in accordance with paragraphs (b) and
(c) of this section.
(b) Needy dependent parent. If the veteran's estate is $4,000 or
more, the Veterans Services Officer may authorize payment from Personal
Funds of Patients or recommend payment from the veteran's estate for the
needs of the dependent parent and for the care and maintenance of the
veteran if hospitalized by the United States or a political subdivision
thereof other than a Department of Veterans Affairs institution. If the
estate is $2,500 or more but less than $4,000, the Veterans Services
Officer may recommend an apportionment from appropriated funds to the
dependent parent or parents, predicated upon need, not to exceed the
veteran's discontinued award, and authorize an award to the hospital
from Personal Funds of Patients if available, otherwise, the hospital
must look to the veteran's estate for payment. If the veteran's estate
is less than $2,500, the Veterans Services Officer may recommend an
apportionment to the dependent parents, predicated upon need, and an
award of so much of the balance, if any, of the veteran's discontinued
award as is necessary for the current care and maintenance of the
veteran, to the hospital.
(c) No dependents. If the veteran is hospitalized by the United
States or a political subdivision thereof other than a Department of
Veterans Affairs institution and has no dependent parent, and the estate
is less than $2,500, the Veterans Services Officer may recommend an
award from appropriated funds, not to exceed the amount of the veteran's
discontinued award, to the hospital for current care and maintenance.
When the veteran's estate is $2,500 or more, no award from appropriated
funds should be made but the Veterans Services Officer may authorize an
award from Personal Funds of Patients if available; otherwise, the
hospital must look to the veteran's estate for payment.
(d) Hardship cases. Veterans Services Officers are authorized, in
exceptional cases, to deviate from the criteria stated to avoid
hardship.
(40 FR 54249, Nov. 21, 1975)
38 CFR 13.75 Beneficiaries in penal institutions.
(a) All beneficiaries; 38 U.S.C. 1505(a). No Department of Veterans
Affairs pension may be paid to or for any individual imprisoned in a
penal institution as a result of conviction of a felony or misdemeanor
for the period beginning 61 days after imprisonment and ending when
imprisonment ends.
(b) Incompetent veterans; 38 U.S.C. 5503 (b)(1). In addition to
paragraph (a) of this section as to payment in pension cases, the
provisions of 38 U.S.C. 5503(b)(1) governing payment of compensation,
pension or emergency officers' retirement pay to an incompetent veteran
are applicable during his or her confinement in a penal institution
whether awaiting trial, sentence or after conviction.
(36 FR 19024, Sept. 25, 1971, as amended at 40 FR 54249, Nov. 21,
1975)
38 CFR 13.76 Appeals from Veterans Services Officer's determination
under 38 U.S.C. 5503(b)(2).
(a) Notification. The Veterans Services Officer will be responsible
for notification of action taken and the right to initiate an appeal by
filing a Notice of Disagreement and of the time limits within which such
notice may be filed ( 19.109 of this chapter) when he or she determines
that:
(1) The dependent is not in need.
(2) The needs of the dependent parent are to be met from the
veteran's estate or from Personal Funds of Patients and no payments or
partial payments will be made for the dependent parents' support from
appropriated funds.
(3) No award from appropriated funds for care and maintenance for the
veteran in a non-Department of Veterans Affairs hospital will be made,
and that the veteran's estate will have to defray the cost.
(b) Appeals. Part 19 of this chapter will be followed in connection
with appeals to the Board of Veterans Appeals from determinations of the
Veterans Services Officer. Appeals may be initiated by a dependent
parent on questions of need and payments for his or her support from
appropriated funds, and by a fiduciary for the disallowance of the use
of appropriated funds for the veteran's institutional care and
maintenance.
(c) Statement of the case. When a Notice of Disagreement is filed,
the Veterans Services Officer will be responsible for furnishing the
claimant and the claimant's representative with a Statement of the Case
and such notification regarding the filing of an appeal as is provided
for in 19.114(b) and 19.115 of this chapter.
(40 FR 54249, Nov. 21, 1975)
38 CFR 13.77 Administrative review of the Veterans Services Officer's
determination made under 38 U.S.C. 5503(b)(2).
(a) Veterans Services Officer (revisions). (1) The Veterans Services
Officer may revise any previous determination upon review of the
evidence of record, provided a specific finding is made in writing that
it was clearly and unmistakably erroneous.
(2) The Veterans Services Officer may revise a previous determination
upon receipt of new evidence.
(b) Chief Benefits Director. Upon request for further review by the
dependent parent, the Chief Benefits Director or designee will review
and may revise the determination of the Veterans Services Officer as to
the amount to be paid from Personal Funds of Patients for the support of
the dependent parent, predicated upon need.
(Authority: 38 U.S.C. 501)
(40 FR 54249, Nov. 21, 1975)
38 CFR 13.100 Supervision of fiduciaries.
(a) Federal fiduciaries. In Federal fiduciary cases, the Veterans
Services Officer may, when he or she deems it necessary for the
protection of the beneficiary's interests:
(1) Require an accounting, formal or informal, of Department of
Veterans Affairs benefits paid.
(2) Terminate the appointment of a Federal fiduciary and appoint a
successor Federal fiduciary.
(Authority: 38 U.S.C. 5502)
(b) Court-appointed fiduciaries. In court-appointed fiduciary cases,
the Veterans Services Officer will take such informal action as may be
necessary to assure that the needs of the beneficiary are provided for
and Department of Veterans Affairs benefits are prudently administered
and adequately protected.
(Authority: 38 U.S.C. 501)
(c) Unsatisfactory conditions. In any case where a fiduciary fails
to render a satisfactory account or has collected or paid, or is
attempting to collect or pay, fees, commissions, or allowances that are
illegal or inequitable or in excess of those allowed by law, or has
failed to use Department of Veterans Affairs funds for the benefit of
the beneficiary or the beneficiary's dependents, or has otherwise failed
or neglected to properly execute the duties of his or her trust, and
informal efforts by the Veterans Services Officer to correct the
situation prove unsuccessful, the case will be referred to the District
Counsel. In such cases the Veterans Services Officer may have all
Department of Veterans Affairs benefits suspended.
(Authority: 38 U.S.C. 5502)
(d) Misappropriation, embezzlement or violation of Federal statutes.
When the evidence indicates a prima facie case of misappropriation,
embezzlement or violation of the Federal statutes, the matter will be
submitted to the District Counsel for review and, if appropriate, the
District Counsel's referral to the U.S. Attorney.
(Authority: 38 U.S.C. 6101)
(40 FR 54249, Nov. 21, 1975)
38 CFR 13.101 Management and use of estates of minors.
Department of Veterans Affairs benefits payable in behalf of minors
should be used for their benefit. Such funds should be expended only to
the extent the person or persons responsible for their needs are unable
to provide for them, except those derived from payments under 38 U.S.C.
ch. 35.
(Authority: 38 U.S.C. 501)
(28 FR 10751, Oct. 5, 1963)
38 CFR 13.102 Accountability of legal custodians.
(a) Institutionalized veterans without spouse or child. The legal
custodian of VA benefits of an incompetent veteran who has neither
spouse nor child and who is being furnished hospital treatment or
institutional or domiciliary care by the United States or a political
subdivision thereof, will account upon request to VA for funds received
from VA for the beneficiary and will submit a statement of all other
income received and the total assets from any source held for the
beneficiary.
(b) All other beneficiaries. Compliance with the agreement as to
benefit use and any authorized modifications due to changed need, proof
of existence of funds surplus to immediate needs and proper investment
thereof, if appropriate, will be established by personal contact.
(Authority: 38 U.S.C. 501)
(36 FR 19025, Sept. 25, 1971,as amended at 53 FR 20618, June 6, 1988)
38 CFR 13.103 Investments by Federal fiduciaries.
(a) Type authorized. VA benefits paid to a Federally appointed
fiduciary other than a spouse payee or an institutional award payee may
be invested only in United States savings bonds, or in interest or
dividend-paying accounts in State or Federally insured institutions,
whichever is to the beneficiary's advantage. Department of Veterans
Affairs benefits that are paid on behalf of an incompetent veteran to an
institution via an institutional award payment arrangement may not be
invested.
(b) Registration. (1) When funds are invested in bonds, the bonds
will be registered in this form: (Beneficiary's Name), (Social Security
No.), under custodianship by designation of the Department of Veterans
Affairs.
(2) When funds are invested in interest or dividend-paying accounts
in State or Federally insured institutions, the account will be
registered in this form: (Beneficiary's name), by (Fiduciary's Name),
Federal fiduciary.
(c) Pre-need burial arrangements. Federally appointed fiduciaries,
other than institutional award payees, may use a beneficiary's funds
derived from VA benefits to make deposits into, or purchase, a pre-need
burial plan or burial insurance on behalf of the beneficiary, if to do
so is in the beneficiary's interest.
(Authority: 38 U.S.C. 501)
(53 FR 20619, June 6, 1988)
38 CFR 13.104 Accounts of court-appointed fiduciaries.
(a) Requirement to account; notices of filings and hearings.
Accounts may be required from court-appointed fiduciaries as provided by
State law, but in no event less frequently than once every 3 years.
Arrangements will be made with the courts whereby notices of filing of
all petitions, accounts, etc., and of hearings on same, relative to
court-appointed fiduciary cases wherein the Department of Veterans
Affairs is an interested party, will be sent to the Veterans Services
Officer for review, distribution and such action as may be appropriate.
Matters which require legal action will be referred to the District
Counsel, and will include any matter in which the Department of Veterans
Affairs has any objections to offer.
(b) Fiduciary and beneficiary in jurisdiction other than a State of
the United States. Accounts will not be required, in the discretion of
the Veterans Services Officer, in cases where the fiduciary and
beneficiary permanently reside in a jurisdiction other than a State of
the United States, the District of Columbia, the Commonwealth of Puerto
Rico or the Republic of the Philippines, and the fiduciary appointment
was made in said jurisdiction.
(40 FR 54250, Nov. 21, 1975)
38 CFR 13.105 Surety bonds.
(a) Federal fiduciaries. (1) The Veterans Services Officer may
require a legal custodian, custodian-in-fact or chief officer of a
private institution recognized to administer Department of Veterans
Affairs benefits on behalf of a beneficiary, to furnish a corporate
surety bond in an amount determined to be sufficient to protect the
interest of the beneficiary. Such bond shall run to the Secretary of
Veterans Affairs for the use and benefit of the beneficiary.
(2) The Veterans Services Officer may require a legal custodian to
furnish an agreement in lieu of a surety bond or additional surety bond
when funds are deposited in an interest or dividend-paying account in a
State or federally insured institution. The agreement will provide that
the legal custodian and institution agree that all funds received from
the Department of Veterans Affairs on behalf of the beneficiary, which
have been or will be deposited by the legal custodian in the account,
will be withdrawn only with the written consent of the Veterans Services
Officer or designee.
(b) Substitution of surety; claims against defunct companies. If
any surety company is placed in receivership or ceases to do business in
the particular State, the Veterans Services Officer will take the
necessary action to have proper bonds substituted in Federal fiduciary
cases and refer the matter to the District Counsel for such other action
as may be appropriate.
(Authority: 38 U.S.C. 501)
(40 FR 54250, Nov. 21, 1975)
38 CFR 13.106 Investments by court-appointed fiduciaries.
The Veterans Services Officer will review and to the extent possible
determine the legality and prudence of investments involving Department
of Veterans Affairs income or estate. It is Department of Veterans
Affairs policy to invest income or estate derived from Department of
Veterans Affairs benefits only in legal investments which have safety,
assured income, stability of principal and ready convertibility for the
requirements of the beneficiary and his or her dependents. When notice
of a contemplated or actual illegal or imprudent investment comes to the
attention of the Veterans Services Officer, he or she will take remedial
action to protect the beneficiary's estate. Cases in which it becomes
necessary to institute court action will be referred to the District
Counsel.
(Authority: 38 U.S.C. 501)
(40 FR 54250, Nov. 21, 1975)
38 CFR 13.107 Accounts of chief officers of public or private
institutions.
(a) Department of Veterans Affairs benefits. The chief officer of an
institution, other than a Federal institution, shall, when requested,
render an account to the Department of Veterans Affairs for funds
received from the Department of Veterans Affairs on account of an
incompetent veteran.
(b) All income and assets. The chief officer of the aforementioned
institutions shall, when requested, furnish a statement of all income
received in behalf of a Department of Veterans Affairs beneficiary under
legal disability and the total assets held for the beneficiary.
(Authority: 38 U.S.C. 5503(b)(3))
(36 FR 19025, Sept. 25, 1971)
38 CFR 13.108 Estate $1,500; 38 U.S.C. 5503(b)(1).
(a) Discontinuance of payments. When a veteran, rated incompetent by
VA, without spouse or child, is receiving hospital treatment or
domiciliary or institutional care by the United States or any political
subdivision, with or without charge, and the veteran's estate equals or
exceeds $1,500, the Veterans Services Officer shall, with regard to
those estates monitored by the Veterans Services Officer, immediately
notify the Adjudication Division so that VA payments, other than
insurance, may be discontinued under the provision of 3.557 of this
title. In those cases in which the payments have been discontinued, the
Veterans Services Officer shall, when the estate has been reduced to
$500, immediately notify the Adjudication Division of that fact.
(b) Waiver of discontinuance. The Veterans Services Officer shall
assist in those cases under the Veterans Services Officer's supervision
in determining when discontinuance should be waived for one or more
periods not to exceed 60 days of the veteran's care during any calendar
year by making an appropriate recommendation.
(1) The Veterans Services Officer should not recommend waiver as an
administrative expediency but should recommend waiver when necessary to
avoid hardship.
(2) Hardship will not be considered present when assets are readily
available to meet current liabilities.
(Authority: 38 U.S.C. 5503(b)(1)(A))
(c) Apportionment to dependent parent; care and maintenance award.
In any case in which a veteran, without spouse or child, is
institutionalized by the United States or a political subdivision
thereof and his or her award of compensation, pension or emergency
officers' retirement pay has been discontinued because his or her estate
exceeds $1,500, an apportionment of the award otherwise payable may
nevertheless be made to a dependent parent, if any, based on actual need
as determined by the Veterans Services Officer. So much of any monthly
remainder of the discontinued payments as equals the amount charged to
the veterans for his or her current care and maintenance in the
institution in which treatment or care is furnished, but not more than
the amount determined by the Veterans Services Officer to be the proper
charge as fixed by statute or administrative regulation, may be paid to
the institution. The Veterans Services Officer shall recommend to the
Adjudication Division the amount of either award.
(Authority: 38 U.S.C. 5503(b)(2))
(d) Death of veteran; personal funds of patient. In the event of
the incompetent veteran's death in other than a VA institution, the
Veterans Services Officer should make certain that the provisions of the
pertinent laws are applied as to the gratuitous benefits in Personal
Funds of Patients.
(Authority: 38 U.S.C. 501)
(53 FR 20619, June 6, 1988)
38 CFR 13.109 Determination of value of estate; 38 U.S.C.
5503(b)(1)(A) and 38 U.S.C. 5505.
Except as stated in paragraph (d) of this section, all funds,
including accumulated social security and amounts on deposit in Funds
Due Incompetent Beneficiaries and to the veteran's credit in Personal
Funds of Patients at Department of Veterans Affairs regional offices,
hospitals, State institutions, hospitals or institutions of any nature
whatsoever, as well as other property, both personal and real (which is
capable of being liquidated), and interest therein owned by the veteran,
will be included in arriving at the value of the veteran's estate.
(a) The value of such property, including any interest therein, will
be established at the estimated net price the veteran's equity in the
property will bring at a forced sale after payment of all costs incident
to liquidation.
(b) U.S. savings bonds, war bonds, adjusted service bonds, and other
appreciation bonds, the current value, including accrued interest, will
be used.
(c) Bonds and stocks, the current price listed on recognized stock
exchange or by over-the-counter dealers will be the value to be used.
In the absence of either, other reliable evidence of value may be used.
(d) The following will not be included as assets:
(1) Adjusted service certificate.
(2) Insurance policy having cash surrender or loan value.
(3) Dividend credits on National Service Life Insurance and United
States Government Life Insurance policies.
(4) Personal property, such as furniture and household equipment,
working tools, livestock and jewelry, which are included under State
exemption statutes.
(5)(i) For purposes of determinations under 38 U.S.C. 5503(b)(1)(A).
The value of the veteran's home unless medical prognosis indicates that
there is no reasonable likelihood that the veteran will again reside in
the home. It may be presumed that there is no likelihood for return
when the veteran is absent from the home for a continuous period of 12
months because of the need for care, and the prognosis is void of any
expectation for a return to the home.
(ii) For purposes of determinations under 38 U.S.C. 5505. The value
of the veteran's home.
(6) Funds deposited into a pre-need burial arrangement such as a
burial trust, prepaid burial agreement, burial insurance, etc. The
value of the veteran's burial plot will be likewise excluded.
(7) Amounts withheld under 3.551(b) of this chapter.
(Authority: 38 U.S.C. 5505)
Note: Cash in the estate will be considered, notwithstanding it was
derived from any of the above excluded items.
(40 FR 54250, Nov. 21, 1975, as amended at 53 FR 20619, June 6, 1988;
56 FR 65853, Dec. 19, 1991)
38 CFR 13.110 Escheat; post fund.
(a) Escheat; 38 U.S.C. 5502(e). Upon death of a beneficiary for whom
payment of Department of Veterans Affairs benefits was made to a
court-appointed fiduciary, legal custodian, custodian-in-fact, or by
institutional award, the fiduciary (or the deceased beneficiary's
personal representative) shall, upon request, account for and return to
the Department of Veterans Affairs any remaining assets derived from
Department of Veterans Affairs benefits which would under State law
escheat to the State, less legal expenses of any administration
necessary to determine that an escheat is in order.
(b) General Post Fund; 38 U.S.C. 5220(a). Upon the death of a
veteran intestate while a member or patient in any facility while being
furnished care or treatment therein by the Department of Veterans
Affairs, who is not survived by a spouse, next of kin, or heirs entitled
under the laws of the veteran's domicile, the veteran's fiduciary, if
any, or the veteran's personal representative shall account for and turn
over to the Department of Veterans Affairs all personal property,
including money and chooses in action owned by the veteran at the time
of his or her death. (See also 14.514(c) of this chapter.)
(c) Refusal of fiduciary or personal representative to cooperate. If
the fiduciary or personal representative, if any, refuses to voluntarily
comply with the provisions of paragraph (a) or (b) of this section, the
Veterans Services Officer will submit a complete report to the District
Counsel.
(36 FR 19025, Sept. 25, 1971, as amended at 40 FR 54250, Nov. 21,
1975)
38 CFR 13.111 Claims of creditors.
Under 38 U.S.C. 5301(a), payments made to or on account of a
beneficiary under any of the laws relating to veterans are exempt,
either before or after receipt by the beneficiary, from the claims of
creditors and State and local taxation. The fiduciary should invoke
this defense where applicable. If the fiduciary does not do so, the
Veterans Services Officer should refer the matter to the District
Counsel for appropriate action.
(40 FR 54251, Nov. 21, 1975)
38 CFR 13.111 Pt. 14
38 CFR 13.111 PART 14 -- LEGAL SERVICES, GENERAL COUNSEL
Sec.
14.500 Functions and responsibilities of General Counsel.
14.501 Functions and responsibilities of District Counsels.
14.502 Requests for legal opinions from Central Office.
14.503 Requests for legal advice and assistance in other than
domestic relations matters.
14.504 Domestic relations questions, authority and exceptions.
14.505 Submissions.
14.507 Opinions.
14.514 Suits by or against United States or Department of Veterans
Affairs officials; indemnification of Department of Veterans Affairs
employees.
14.515 Suits involving loan guaranty matters.
14.516 Escheat and post fund cases.
14.517 Cases affecting the Department of Veterans Affairs generally.
14.518 Litigation involving beneficiaries in custody of Department of
Veterans Affairs employees acting in official capacity.
14.560 Procedure where violation of penal statutes is involved
including those offenses coming within the purview of the Assimilative
Crime Act (18 U.S.C. 13).
14.561 Administrative action prior to submission.
14.562 Collections or adjustments.
14.563 Crimes or offenses on Department of Veterans Affairs property.
14.600 Federal Tort Claims Act.
14.601 Dismissal action.
14.602 Scope and authority to consider claims.
14.603 Proper claimants.
14.604 Filing a claim.
14.605 Investigation and development.
14.606 Requests for medical information.
14.607 Evidence to be submitted.
14.608 Disposition of claims.
14.609 Tort suits following denial of an administrative tort claim.
14.610 Suits against Department of Veterans Affairs employees arising
out of the operation of motor vehicles or based upon medical care and
treatment furnished in or for the Veterans Health Services and Research
Administration.
14.615 General.
14.616 Form and place of filing claim.
14.617 Disposition of claims.
14.618 Collection action.
14.619 Collection action.
Accreditation of Representatives, Attorneys, Agents;
Rules of Practice and Information Concerning Fees, 38
U.S.C. 5901-5905
14.626 Purpose.
14.627 Definitions.
14.628 Recognition of organizations.
14.629 Requirements for accreditation of representatives, agents, and
attorneys.
14.630 Authorization for a particular claim.
14.631 Powers of attorney.
14.632 Letters of accreditation.
14.633 Termination of accreditation of agents, attorneys, and
representatives.
14.634 Banks or trust companies acting as guardians.
14.635 Office space and facilities.
14.664 Scope of authority and effective date.
14.665 Claims.
14.666 District Counsel responsibility.
14.667 Claims payable.
14.668 Disposition of claims.
14.669 Fees of agents or attorneys; penalty.
14.700 Court cost and expenses; commitment, restoration, fiduciary
appointments.
14.701 Commitment and restoration proceedings.
14.702 Medical testimony in commitment or restoration proceedings.
14.703 Costs in commitment or restoration proceedings.
14.704 Authorization of transportation necessary for commitment of a
veteran beneficiary.
14.705 Authority to file petitions for appointment of fiduciaries in
State courts.
14.706 Legal services in behalf of beneficiaries.
14.707 Authorization of transportation of a veteran beneficiary for
appointment of a fiduciary.
14.708 Costs and other expenses incident to appointment of fiduciary.
14.709 Surety bonds; court-appointed fiduciary.
Authority: 38 U.S.C. 501(a), 5502, 5902-5905, unless otherwise
noted.
Source: 19 FR 5552, Aug. 31, 1954, unless otherwise noted.
38 CFR 14.500 Functions and responsibilities of General Counsel.
The General Counsel is responsible to the Secretary for the
following:
(a) All litigation arising in, or out of, the activities of the
Department of Veterans Affairs or involving any employee thereof in his
or her official capacity.
(b) All interpretative legal advice involving construction or
application of laws, including statutes, regulations, and decisional as
well as common law.
(c) All legal services, advice and assistance required to implement
any law administered by the Department of Veterans Affairs.
(d) All delegations of authority and professional guidance required
to meet these responsibilities.
(e) Maintenance of a system of field offices capable of providing
legal advice and assistance to all Department of Veterans Affairs field
installations and acting for the General Counsel as provided by
Department of Veterans Affairs Regulations and instructions, or as
directed by the General Counsel in special cases. This includes
cooperation with U.S. Attorneys in all civil and criminal cases
pertaining to the Department of Veterans Affairs and reporting to the
U.S. Attorneys, as authorized, or to the General Counsel, or both,
criminal matters coming to the attention of the District Counsel.
(f) Other matters assigned.
(42 FR 41410, Aug. 17, 1977)
38 CFR 14.501 Functions and responsibilities of District Counsels.
(a) Functions and responsibilities of the District Counsels are those
set forth in this part and all other matters assigned by the General
Counsel.
(b) In any matter within the jurisdiction of the General Counsel,
delegated or otherwise assigned, the District Counsel and designated
staff attorneys are authorized to conduct investigations, examine
witnesses, take affadavits, administer oaths and affirmations and
certify copies of public or private documents.
(c) The District Counsel is authorized to, and shall, under the
guidance of the General Counsel, provide legal services, advice and
assistance to Department of Veterans Affairs installations within the
district assigned. In any area of regulatory, assigned or delegated
responsibility, the District Counsel may delegate to staff members or
other Department of Veterans Affairs attorneys authority to perform, to
the extent specified, any legal function under the professional
direction of the District Counsel. Conversely, the District Counsel may
modify, suspend, or rescind any authority delegated hereunder.
(d) The District Counsel is authorized to cooperate with affiliated
organizations, legislative committees, and with local and State bar
associations to the end that any State law deficiencies relating to
Department of Veterans Affairs operations may be removed. No commitment
as to proposed legislation will be made without the approval of the
General Counsel.
(e) In any case wherein the District Counsel is authorized to take
legal action and payment of costs and necessary expenses incident
thereto are involved, the administration requesting such action will pay
such cost and expenses. Where it is impractical for the District
Counsel to perform the legal service because of cost, distance, etc.,
the customary fee for the service rendered by a local attorney employed
by the District Counsel will be borne by the administration requesting
such action.
(42 FR 41411, Aug. 17, 1977)
38 CFR 14.502 Requests for legal opinions from Central Office.
Requests for formal legal advice, including interpretation of law or
regulations, shall be made only by the Secretary, the Deputy Secretary,
the Assistant Secretaries, the Deputy Assistant Secretaries, and the
administration head or top staff office official having jurisdiction
over the particular subject matter, or by a subordinate acting for any
such official.
(54 FR 34982, Aug. 23, 1989)
38 CFR 14.503 Requests for legal advice and assistance in other than
domestic relations matters.
(a) Requests from administrative officials in the field for legal
advice or assistance will be addressed to the appropriate District
Counsel and will be in writing if requested by the District Counsel.
Questions regarding insurance activities at St. Paul and Philadelphia
should be referred to the District Counsel at the respective station.
Except as to matters referred to in 14.504(b), the District Counsel's
authority to render legal advice and assistance shall extend to the
release (unless otherwise instructed by the General Counsel), without
prior approval of the General Counsel, of opinions on all legal
questions which are either:
(1) Wholly controlled by the interpretation or application of the
laws of the State or States in the district office area, or
(2) Covered by Department of Veterans Affairs precedents and opinions
of the General Counsel which the District Counsel knows to be currently
authoritative on the issues involved.
In cases covered by 14.504(b) and all others not included in
paragraph (a)(1) or (2) or paragraph (b) of this section, the District
Counsel will prepare a tentative opinion (including identification of
the benefit sought) and forward it to the General Counsel for review.
When it is returned, the District Counsel will conform the opinion (if
necessary) to the views of the General Counsel, and release it to the
requesting official. The District Counsel may release any modified
opinion as the opinion of the General Counsel.
(b) The District Counsel may submit to the General Counsel any legal
question, opinion, or question pertinent to legal functions, upon which
the views or advice of the General Counsel are desired. This request
should set forth the special circumstances, contain a statement of the
legal implications involved (including any Department of Veterans
Affairs benefits claimed), set forth the facts out of which they arise,
and cite any statutes or court decisions readily available, regulations,
related opinions of the General Counsel and other matters deemed
pertinent, with appropriate discussion. If any administration will be
affected, a copy of the reply will be forwarded to that administration
head.
(42 FR 41411, Aug. 17, 1977, as amended at 54 FR 34982, Aug. 23,
1989)
38 CFR 14.504 Domestic relations questions, authority and exceptions.
(a) District Counsels have the same authority with respect to
domestic relations questions as they do with respect to matters covered
by 14.503 except as specifically excluded by the provisions of
paragraph (a) of that section.
(b) In the following instances the District Counsel, regardless of
whether State law is wholly controlling or a Department of Veterans
Affairs precedent is available, will prepare a tentative opinion,
researched as completely as possible with reasonably available
facilities, and forward two copies thereof directly to the General
Counsel for review and disposition (as provided in 14.503 respecting
other than domestic relations matters):
(1) Where it is not clear under applicable State law: (i) Whether
the marriage of a veteran's child or the remarriage of a veteran's widow
was void without decree of annulment, or (ii) whether an annulment
decree was rendered by a court with basic authority to render annulment
decrees;
(2) When fraud or collusion by either party appears to have
influenced the granting of an annulment decree;
(3) Cases in which there are contesting claims;
(4) Unusual situations, such as those involving proxy marriages, the
law of two or more jurisdictions or of a foreign country;
(5) Cases involving difference of opinion between District Counsels
or between a District Counsel and the official who submitted the
question involved.
(42 FR 41411, Aug. 17, 1977)
38 CFR 14.505 Submissions.
All submissions will set forth the question of law on which the
opinion is desired, together with a complete and accurate summary of
relevant facts. Files, correspondence, and other original papers will
not be submitted unless pertinent portions thereof cannot practicably be
summarized or copies made and attached as exhibits.
(42 FR 41411, Aug. 17, 1977)
38 CFR 14.507 Opinions.
(a) A written legal opinion of the General Counsel involving
veterans' benefits under laws administered by the Department of Veterans
Affairs shall be conclusive as to all Department officials and employees
with respect to the matter at issue, unless there is a change in
controlling statute or regulation, a superseding written legal opinion
by the General Counsel, or the designation on its face as ''advisory
only'' by the General Counsel or the Deputy General Counsel acting as or
for the General Counsel. Written legal opinions having conclusive
effect under this section and not designated as precedent opinions
pursuant to paragraph (b) of this section shall be considered by the
Department of Veterans Affairs to be subject to the provisions of 5
U.S.C. 552(a)(2). Advice, recommendations, or conclusions on matters of
Government or Department policy, contained within a written legal
opinion, shall not be binding on Department officials and employees
merely because of their being contained within a written legal opinion.
Written legal opinions will be maintained in the Office of the General
Counsel. Written legal opinions involving veterans' benefits under laws
administered by the Department of Veterans Affairs, which pertain to a
particular benefit matter, in addition to being maintained in the Office
of the General Counsel, will be filed in the individual claim folder.
(b) A written legal opinion of the General Counsel involving
veterans' benefits under laws administered by the Department of Veterans
Affairs which, in the judgment of the General Counsel or the Deputy
General Counsel acting as or for the General Counsel, necessitates
regulatory change, interprets a statute or regulation as a matter of
first impression, clarifies or modifies a prior opinion, or is otherwise
of significance beyond the matter at issue, may be designated a
''precedent opinion'' for purposes of such benefits. Written legal
opinions designated as precedent opinions under this section shall be
considered by Department of Veterans Affairs to be subject to the
provisions of 5 U.S.C. 552(a)(1).
(c) For purposes of this section, the term written legal opinion of
the General Counsel means a typed or printed memorandum or letter signed
by the General Counsel or by the Deputy General Counsel acting as or for
the General Counsel, addressed to an official or officials of the
Department of Veterans Affairs stating a conclusion on a legal issue
pertaining to Department of Veterans Affairs activities.
(Authority: 38 U.S.C. 501)
(54 FR 5613, Feb. 6, 1989)
38 CFR 14.507 Litigation (Other Than Under the Federal Tort Claims Act); Indemnification
38 CFR 14.514 Suits by or against United States or Department of
Veterans Affairs officials; indemnification of Department of Veterans
Affairs employees.
(a) Suits against United States or Department of Veterans Affairs
officials. When a suit involving any activities of the Department of
Veterans Affairs is filed against the United States or the Secretary or
a suit is filed against any employee of the Department of Veterans
Affairs in which is involved any official action of the employee, not
covered by the provisions of 14.600 through 14.617, a copy of the
petition will be forwarded to the General Counsel who will take
necessary action to obtain the pertinent facts, cooperate with or
recieve the cooperation of the Department of Justice and, where
indicated, advise the District Counsel of any further action required.
(b) Counsel and representation of employees. The Department of
Justice may afford counsel and representation to Government employees
who are sued individually as a result of the performance of their
official duties. A civil action commenced in a State court against an
employee, as the result of an action under color of his or her office,
may be removed to the applicable Federal District Court. If a suit is
filed against an employee as the result of the performance of his or her
official duties, where the provisions of either 28 U.S.C. 2679 or 38
U.S.C. 7316 are not applicable (see 14.610), and the employee desires
to be represented by the U.S. Attorney, the District Counsel will obtain
a written request to this effect from the employee and will also obtain
an affidavit of the facility Director describing the incident in
sufficient detail to enable a determination to be made as to whether the
employee was in the scope of his or her employment at the time. These
statements, together with a copy of the petition and two copies of a
summary of pertinent facts, will be sent to the General Counsel, who
will transmit copies thereof to the Department of Justice for
appropriate action.
(c) Indemnification. (1) The Department of Veterans Affairs may
indemnify a Department of Veterans Affairs employee, who is personally
named as a defendant in any civil suit in state or Federal court or an
arbitration proceeding or other proceeding seeking damages against the
employee personally, where either 28 U.S.C. 2679 or 38 U.S.C. 7316 is
not applicable, for any verdict, judgment, or other monetary award which
is rendered against such employee; provided that: the alleged conduct
giving rise to the verdict, judgment, or award was taken within the
scope of his or her employment and that such indemnification is in the
interest of the Department of Veterans Affairs, as determined by the
Secretary or his designee.
(2) The Department of Veterans Affairs may settle or compromise a
personal damage claim against a Department of Veterans Affairs employee,
in cases where the provisions of either 28 U.S.C. 2679 or 38 U.S.C. 7316
are not applicable, by the payment of available funds, at any time;
provided that: the alleged conduct giving rise to the personal damage
claim was taken within the employee's scope of employment and that such
settlement or compromise is in the interest of the Department of
Veterans Affairs, as determined by the Secretary or his designee.
(3) Absent exceptional circumstances as determined by the Secretary
or his designee, the Agency will not entertain a request either to agree
to indemnify or to settle a personal damage claim before entry of an
adverse verdict, judgment, or award.
(4) A Department of Veterans Affairs employee may request
indemnification to satisfy a verdict, judgment, or award entered against
that employee. The employee shall submit a written request, with
appropriate documentation including copies of the verdict, judgment,
award, or settlement proposal, in a timely manner to the Department of
Veterans Affairs General Counsel, who shall make a recommended
disposition of the request. Where the Department of Veterans Affairs
determines it appropriate, the Agency shall seek the view of the
Department of Justice. The General Counsel shall forward the employee
request for indemnification, and the accompanying documentation, with
the General Counsel's recommendation to the Secretary for decision.
(5) Any payment under this section either to indemnify a Department
of Veterans Affairs employee or to settle or compromise a personal
damage claim shall be contingent upon the availability of appropriated
funds of the Department of Veterans Affairs.
(d) Attorney-client privilege. Attorneys employed by the Department
of Veterans Affairs who participate in any process utilized for the
purpose of determining whether the Agency should request the Department
of Justice to provide representation to a Department employee sued,
subpoenaed or charged in his individual capacity, or whether attorneys
employed by the Department of Veterans Affairs should provide assistance
in the representation of such a Department employee, undertake a full
and traditional attorney-client relationship with the employee with
respect to application of the attorney-client privilege. If
representation is authorized, Department of Veterans Affairs attorneys
who assist in the representation of an employee also undertake a full
and traditional attorney-client relationship with the employee with
respect to the attorney-client privilege. Any adverse information
communicated by the client-employee to an attorney during the course of
such attorney-client relationship shall not be disclosed to anyone,
either inside or outside the Department of Veterans Affairs, other than
attorneys responsible for representation of the employee, unless such
disclosure is authorized by the employee.
(e) Suits by the United States. In any instance wherein direct
submission to a U.S. Attorney for institution of civil action has been
authorized by the Department of Justice, the District Counsel will
furnish the U.S. Attorney a complete report of the facts and applicable
law, documentary evidence, names and addresses of witnesses and, in
cases wherein Department of Veterans Affairs action has been taken, a
copy of any pertinent decision rendered. The District Counsel will
forward two copies of such report and of any proposed pleading to the
General Counsel, and will render any practicable assistance requested by
the U.S. Attorney.
(42 FR 41411, Aug. 17, 1977, as amended at 54 FR 5614, Feb. 6, 1989)
38 CFR 14.515 Suits involving loan guaranty matters.
(a) In actions for debt, possession or actions similar in substance
(including title actions) in which 36.4282 or 36.4319 of this chapter
has been complied with, the District Counsel is authorized to enter the
appearance of and represent the Secretary of Veterans Affairs as the
attorney of record and to file claims for debt in probate proceedings
without prior reference to the General Counsel. Any such action will
normally be taken within the time prescribed by law as though there had
been valid service of process. In all other types of cases, the
District Counsel will not enter an appearance or file any pleading on
behalf of the Secretary except in imperative emergency until
authorization is received from the General Counsel after submission of
all relevant facts. In doubtful cases, the District Counsel will
request instructions from the General Counsel, submitting copy of so
much of the pleadings or other papers, together with a sufficient
recital of the facts as will make clear the background, the issues, and
the relief sought. The submission also will include names and addresses
of adverse parties and attorneys so that immediate action may be taken
if injunctive relief seems proper. Where necessary in any case to
preserve rights which might be lost by default if there had been proper
service of process, appropriate action will be taken by a special
appearance, or, in jurisdictions where a special appearance does not
serve the purpose or under State statute or decisions will constitute a
general appearance for a later date, by an appearance through amicus
curiae, to obtain an extension of time, preferably 30 days or more, in
which to appear and plead without prejudice. If not feasible to obtain
an extension, the District Counsel will explain to adverse counsel by
letter, and personally, if desirable, the necessity of deferring all
action and will see that the proper judge receives a signed copy of the
letter before default day. The letter will point out that there is no
valid service of process on the Secretary of Veterans Affairs but will
not base the delay on that alone.
(b) The General Counsel or each District Counsel representing the
General Counsel is the attorney of the Secretary of Veterans Affairs for
all purposes of 38 U.S.C. 3720 and, as such, is authorized to represent
the Secretary in any court action or other legal matter arising under
said statutory provisions. Said authorization is subject to any
applicable statutes and Executive orders concerning claims of the United
States. A District Counsel may enter appearance in such cases, subject
to the provisions of 36.4282 and 36.4319 of this chapter and paragraph
(a) of this section. Each District Counsel is authorized to contract
for the employment of attorneys on a fee basis for conducting any action
arising under guaranty or insurance of loans or direct loans by the
Department of Veterans Affairs; or for examination and other proper
services with respect to title to and liens on real and personal
property, material incident to such activities of the Department of
Veterans Affairs, when, such employment is deemed by the District
Counsel to be appropriate. the authority delegated to the District
Counsel may be redelegated with the approval of the General Counsel.
(c) The General Counsel and each District Counsel, in carrying out
their duties as authorized in paragraph (a) or (b) of this section, are
authorized: (1) To contract for and execute, for and on behalf of the
Secretary, any bond (and appropriate contract or application therefor)
which is required in or preliminary to or in connection with any
judicial proceeding in which the District Counsel is attorney for the
Secretary, and to incur obligations for premiums for such bonds and (2)
to do all other acts and incur all costs and expenses which are
necessary or appropriate to further or protect the interests of the
Secretary in or in connection with prosecuting or defending any cause in
any court or tribunal within the United States, which cause arises out
of or incident to the guaranty or insurance of loans, or the making or
direct loans by the Department of Veterans Affairs, pursuant to 38
U.S.C. ch. 37.
(d) Except in an emergency, no District Counsel will initiate action
for appellate review without prior approval by the General Counsel.
These limitations do not preclude the filing of a motion for a new
trial, appeal to intermediate court with hearing do novo, the giving of
notice of appeal, reserving of bills of exception, or any other
preliminary action in the trial court which may be necessary or
appropriate to protect or facilitate, the exercise of the right of
appellate review, nor do they preclude the taking of appropriate steps
on behalf of the Secretary as appellee (respondent) without prior
reference to the General Counsel. Upon the conclusion of the trial of a
case, the District Counsel will report the result thereof to the General
Counsel with recommendation as to seeking appellate review if the result
reported is adverse to the position of the Department of Veterans
Affairs in the litigation. The reporting District Counsel who
recommends appellate review will include as a part of the communication,
or in exhibits attached: (1) A summary of the evidence; (2) a summary
of the law points to be reviewed; (3) citations of statutes and cases;
(4) statements of special reasons for recommending appellate review;
(5) time limitations for the action recommended; (6) requirements, if
any, respecting printing of the record and briefs; (7) the estimated
total expenses to be incurred by reason of the appeal, reporting
separately the estimated costs for printing the brief and record so that
authority for printing may be granted in accordance with the prescribed
procedure, MP-1, part II, chapter 9; 1 and (8) the recommendation or a
statement as to nonrecommendation by the Loan Guaranty Officer.
(42 FR 41411, Aug. 17, 1977)
1Available in any Department of Veterans Affairs facility.
38 CFR 14.516 Escheat and post fund cases.
In any case in which the Department of Veterans Affairs is entitled
to possession of assets or property under the escheat provisions of 38
U.S.C. 5502(e), the gifts provisions of 38 U.S.C. ch. 83 or the General
Post Fund provisions of 38 U.S.C. ch. 85, the District Counsel will
endeavor to obtain possession of such assets or property in any manner
appropriate under local procedure and practice, other than litigation.
This procedure would include exploratory inquiry of the person having
custody or possession of the assets or property for the purpose of
determining whether the person would be willing to turn over the
property to the Department of Veterans Affairs without litigation. If
unsuccessful in this effort, a complete report will be submitted by the
District Counsel to the General Counsel so that appropriate action may
be taken to obtain the assistance of the Department of Justice in the
matter.
(42 FR 41411, Aug. 17, 1977)
38 CFR 14.517 Cases affecting the Department of Veterans Affairs
generally.
District Counsels will establish and maintain such close liaison with
the State and Federal courts as to insure that notice will be afforded
the Department of Veterans Affairs on all cases affecting the Department
of Veterans Affairs. Such information will be forwarded to the General
Counsel promptly in every case.
(42 FR 41411, Aug. 17, 1977)
38 CFR 14.518 Litigation involving beneficiaries in custody of
Department of Veterans Affairs employees acting in official capacity.
(a) Service of process generally. An employee, at a field facility,
served with a writ of habeas corpus involving a beneficiary of the
Department of Veterans Affairs in the employee's custody will
immediately notify the District Counsel of the district in addition to
taking such steps as in his or her judgment are necessary for self
protection.
(b) Habeas corpus writs. (1) If a Director of a Department of
Veterans Affairs hospital concerned advises that, according, to current
medical opinion, hospitalization is necessary for the veteran's safety
or the safety of others, the District Counsel will vigorously oppose the
writ at the trial court level. If the writ is granted, no further
action will be taken unless so instructed by the General Counsel.
(2) If the medical opinion is that hospitalization is not required
for the veteran's safety or the safety of others but continued treatment
is clearly indicated in the veteran's interest, the District Counsel
will assure that the court issuing the writ is so informed and will
abide by the court's decision.
(3) If the medical opinion is that there is no danger of self injury
to the veteran or others and the need for continued treatment is not
clearly demonstrated, the District Counsel will advise the Director of
the hospital concerned that the veteran should be released and will
notify the veteran's attorney of the planned discharge. These cases
will be handled informally to the extent practicable.
(4) Involuntary confinement of mentally ill patients in Department of
Veterans Affairs installations is predicated upon the law of the State
in which the installation is located. In the event the writ is filed in
Federal Court, the District Counsel will cooperate with the U.S.
Attorney to the end that the case is removed to the appropriate State
court.
(42 FR 41411, Aug. 17, 1977)
38 CFR 14.518 Prosecution
38 CFR 14.560 Procedure where violation of penal statutes is involved
including those offenses coming within the purview of the Assimilative
Crime Act (18 U.S.C. 13).
(a) Allegations of crimes against the person or property, or other
non-fraudulent criminal matters will be referred by the District
Counsel, within whose jurisdiction the alleged offense appears to have
been committed, to the appropriate U.S. Attorney, FBI, or local law
enforcement agency, according to local practice.
(b) Allegations of fraud, corruption or other criminal conduct
involving programs and operations of VA will be referred to the Office
of the Inspector General.
(c) The Department of Justice, or the U.S. Attorneys, are charged
with the duty and responsibility of interpreting and enforcing criminal
statutes, and the final determination as to whether the evidence in any
case is sufficient to warrent prosecution is a matter solely for their
determination. If the Department of Justice or U.S. Attorney decides
to initiate action, the District Counsel will cooperate as may be
requested. The District Counsel will promptly bring to the attention of
the General Counsel any case wherein he or she is of the opinion that
criminal or civil action should be initiated notwithstanding a decision
by the U.S. Attorney not to bring such action; any case where action
has been inordinately delayed; and any case which would cause
significant publicity or notoriety.
(Authority: 38 U.S.C. 501)
(50 FR 24767, June 13, 1985)
38 CFR 14.561 Administrative action prior to submission.
Before a submission is made to the U.S. Attorney in cases involving
personnel or claims, the General Counsel, if the file is in Central
Office, or the District Counsel at the regional office, hospital or
center, if the file is in the regional office or other field facility,
will first ascertain that necessary administrative or adjudicatory
(forfeiture (see Pub. L. 86-222; 73 Stat. 452), etc.), action has been
taken; except that in urgent cases such as breaches of the peace,
disorderly conduct, trespass, robbery, or where the evidence may be lost
by delay, or prosecution barred by the statute of limitations,
submission to the U.S. Attorney will be made immediately.
(42 FR 41413, Aug. 17, 1977)
38 CFR 14.562 Collections or adjustments.
When it is determined that a submission is to be made to the U.S.
Attorney, no demand for payment or adjustment will be made without the
advice of the U.S. Attorney. However, if, before or after submission,
the potential defendant or other person tenders payment of the liability
to the United States, payment will be accepted if the U.S. Attorney has
no objection. If the U.S. Attorney determines that prosecution is not
indicated, or when prosecution has ended, the file will be returned to
the appropriate office with a report as to the action taken.
(42 FR 41413, Aug. 17, 1977)
38 CFR 14.563 Crimes or offenses on Department of Veterans Affairs
property.
Upon receipt by the District Counsel of a report from the Director of
any Department of Veterans Affairs facility located in the district
regional office area, other than the District of Columbia, indicating a
violation of any penal statutes occurring on such Department of Veterans
Affairs property, the District Counsel will extend full cooperation and
advice to the Director. In so doing, the District Counsel will be
guided by the provisions of 18 U.S.C. 13 and 3041, and 38 U.S.C. 901.
Serious crimes (felonies or misdemeanors) committed on a hospital or
domiciliary reservation will be reported directly to the U.S. Attorney
or local agent of the Federal Bureau of Investigation by the Director of
the facility. The District Counsel will give every assistance to the
Director in such cases.
(42 FR 41413, Aug. 17, 1977)
38 CFR 14.563 Federal Tort Claims
38 CFR 14.600 Federal Tort Claims Act.
(a) The Federal Tort Claims Act (28 U.S.C. 1291, 1346, 1402, 1504,
2110, 2401, 2402, 2411, 2412, and 2671 through 2680) prescribes a
uniform procedure for handling of claims against the United States, for
money only, on account of damage to or loss of property, or on account
of personal injury or death, caused by the negligent or wrongful act or
omission of a Government employee while acting within the scope of his
or her office or employment, under circumstances where the United
States, if a private person, would be liable in accordance with the law
of the place where the act or omission occurred.
(b) The Act provides that: (1) No court action (except those
involving a third party complaint, cross-claim, or counterclaim) shall
be instituted unless the claimant shall have first presented his or her
claim to, and it has been finally denied by, the appropriate Federal
agency. The failure, however, of the agency to make final disposition
of the claim within 6 months after it is filed may, at the option of the
claimant, be deemed a final denial of the claim (28 U.S.C. 2675(a));
(2) Where a suit is filed after the denial of the administrative
claim, the amount sought is limited to the amount of the claim presented
to the Federal agency, except on proof of newly discovered evidence or
intervening facts relating to the amount of the claim (28 U.S.C.
2675(b));
(3) Suits are tried without a jury, and a district court judgment may
be appealed to the appropriate U.S. Circuit Court of Appeals, or upon
consent, to the Court of Claims of the United States;
(4) Administrative claims must be filed in writing with the
appropriate Federal agency within 2 years from the date the claim
accrues, and a suit must be filed within 6 months from the date of
mailing of the final denial by the agency of the administrative claim
(28 U.S.C. 2401(b));
(5) Section 2680 of title 28 U.S.C., enumerates certain types of
claims for which the United States is not liable under the Federal Tort
Claims Act.
(38 FR 5470, Mar. 1, 1973, as amended at 42 FR 41414, Aug. 17, 1977;
54 FR 34982, Aug. 23, 1989)
38 CFR 14.600 Premature Suits
38 CFR 14.601 Dismissal action.
Where a tort suit against the United States (other than by third
party complaint, cross-claim, or counterclaim) is filed without being
preceded by an administrative claim (see 14.600(b)(1)), the District
Counsel shall promptly, upon receipt of notice of the action thereon,
notify the U.S. Attorney and the General Counsel, who will, in turn,
notify the Department of Justice, that the provisions of 28 U.S.C.
2675(a) have not been complied with, and that the suit appears to be
subject to a motion to dismiss for lack of jurisdiction. The General
Counsel should be kept advised as to subsequent developments, and should
be furnished a copy of any order of dismissal which may be entered by
the court.
(42 FR 41414, Aug. 17, 1977)
38 CFR 14.601 Administrative Claims
38 CFR 14.602 Scope and authority to consider claims.
(a) The Secretary and those delegated such authority in 2.6(e) of
this chapter are authorized to consider, ascertain, adjust, determine,
compromise, and settle claims for money damages against the United
States in accordance with regulations prescribed by the Attorney General
(38 CFR 14.1 et seq.). Any award, compromise, or settlement exceeding
$100,000 shall be effected only with the prior written approval of the
Attorney General or designee. In addition, a claim may be compromised
or settled only after consultation with the Department of Justice when:
(Authority: 38 U.S.C. 515; 28 CFR Appendix to Part 14)
(1) A new precedent or point of law is involved;
(2) A question of policy is or may be involved;
(3) The United States is or may be entitled to indemnity or
contribution from a third party and the Department of Veterans Affairs
is unable to adjust the third party claim;
(4) For any reason, the compromise of a particular claim, as a
practical matter, will, or may, control the disposition of a related
claim in which the amount to be paid may exceed $100,000; or
(Authority: 38 U.S.C. 515; 28 CFR Appendix to Part 14)
(5) The United States, an employee, agent, or cost-plus contractor,
is involved in litigation based on a claim arising out of the same
incident or transaction.
(b)(1) All claims coming within paragraph (a) of this section will be
referred to the General Counsel for disposition.
(2) Where full development of a claim indicates that liability exists
and the potential settlement value exceeds $50,000, the District Counsel
who received the claim will submit the case to the General Counsel for
consideration.
(Authority: 38 U.S.C. 515; 28 CFR Appendix to Part 14)
(3) Where multiple claims (including claims for a subrogor and a
subrogee) arise from the same incident, and the total of such claims
exceeds the settlement amount delegated to the District Counsel, all
such claims will be forwarded to the General Counsel for consideration.
(c) Where it is determined that liability on the part of the
Government does not exist, the District Counsel who initially received
the claim will deny liability regardless of the amount claimed or the
potential value if liability existed. If liability is questionable, the
District Counsel will refer the claim for final determination to the
General Counsel.
(42 FR 41414, Aug. 17, 1977, as amended at 43 FR 2722, Jan. 19, 1978;
53 FR 49880, Dec. 12, 1988)
38 CFR 14.603 Proper claimants.
(a)(1) A claim for damage to or loss of property may be presented by
the owner of the property, his or her duly authorized agent or legal
representative.
(2) A claim for personal injury may be presented by the injured
person, his or her duly authorized agent, or legal representative.
(3) A claim based on death may be presented by the executor/executrix
or administrator/administratrix of the decedent's estate, or by any
other person legally entitled to assert such a claim in accordance with
applicable State law.
(4) A claim for loss wholly compensated by an insurer with the rights
of a subrogee may be presented by the insurer. A claim for loss
partially compensated by an insuree with the rights of a subrogee may be
presented by the parties individually as their respective interests
appear, or jointly. However when an insurer presents a claim asserting
the rights of a subrogee, he or she shall also present appropriate
evidence to support his or her right.
(5) A claim presented by an agent or legal representative shall be
presented in the name of the claimant, be signed by the agent or legal
representative, show the title or legal capacity of the person signing,
and be accompanied by evidence of his or her authority to present a
claim on behalf of the claimant as agent, executor/executrix,
administrator/administratrix, parent, guardian, or other representative.
(b) State court procedures relating to the presentation of claims on
behalf of mentally incompetent claimants will be complied with.
Applicable statutes of limitation are not, however, tolled by the
claimant's incompetency.
(c) State court procedures, other than statutes of limitation,
relating to the presentation of claims on behalf of minors will be
complied with where:
(1) The claimant is represented by an attorney who, at minimal
expense and inconvenience, can easily obtain State court approval;
(2) The claimant is not a parent or is otherwise unrelated to the
infant;
(3) The minor will reach majority before the expiration of the 2-year
period of limitation prescribed by 28 U.S.C. 2401(b); or
(4) The amount involved or the permanence and seriousness of personal
injuries are of such magnitude as to warrant judicial approval in order
to assure that the interests of the minor are fully protected.
(38 FR 5470, Mar. 1, 1973, as amended at 42 FR 41414, Aug. 17, 1977;
54 FR 34982, Aug. 23, 1989)
38 CFR 14.604 Filing a claim.
(a) Each person who inquires as to the procedure for filing a claim
against the United States, predicated on a negligent or wrongful act or
omission of an employee of the Department of Veterans Affairs acting
within the scope of his or her employment, will be furnished a copy of
SF 95, Claim for Damage, Injury, or Death. The claimant will be advised
to submit the executed claim directly to the District Counsel having
jurisdiction of the area wherein the occurrence complained of took
place. He or she will also be advised to submit the information
prescribed by 14.607 to the extent applicable. If a claim is presented
to the Department of Veterans Affairs which involves the actions of
employees or officers of other agencies, it will be forwarded to the
Department of Veterans Affairs General Counsel, who will transmit
forthwith to the appropriate agency.
(b) A claim shall be deemed to have been presented when the
Department of Veterans Affairs receives from a claimant, his or her duly
authorized agent or legal representative, an executed SF 95, or other
written notification of an incident, together with a claim for money
damages, in a sum certain, for damage to or loss of property or personal
injury or death: Provided, however, That before compromising or
settling any claim, an executed SF 95 shall be obtained from the
claimant.
(c) A claim presented in compliance with paragraphs (a) and (b) of
this section may be amended by the claimant at any time prior to final
Department of Veterans Affairs action or prior to the exercise of the
claimant's option under 28 U.S.C. 2675(a). Amendments shall be submitted
in writing and signed by the claimant or his or her duly authorized
agent or legal representative. Upon the timely filing of an amendment
to a pending claim, the Department of Veterans Affairs shall have 6
months in which to make a final disposition of the claim as amended and
the claimant's option under 28 U.S.C. 2675(a) shall not accrue until 6
months after the filing of the amendment (see 14.600(b)(1)).
(42 FR 41414, Aug. 17, 1977)
38 CFR 14.605 Investigation and development.
(a) Development of untoward incidents prior to receipt of a claim.
(1) A report of any collision involving a Government-owned vehicle which
results in property damage or personal injury or death will be made by
the operator of the Government vehicle immediately following the
accident, on SF 91, Operator's Report of Motor Vehicle Accident, and
shall be submitted to the Director of the facility involved. A copy of
said report, accompanied by an executed copy of VA Form 2162, Report of
Accident, Injury, Occupational Illness, or Fire, and of VA Form 2162b,
Report of Accident, Injury, Occupational Illness, or Fire (Continued),
will be promptly submitted by the Director to the appropriate District
Counsel, who will authorize such additional investigation as the
circumstances of the case may warrant. Forms required by other agencies
will continue to be used in addition to VA Form 2162.
(2)(i) Any incident resulting in damage to, or loss of, property,
other than personal effects of a patient in a Department of Veterans
Affairs facility, or in personal injury or death, due apparently or
allegedly to the negligent or wrongful act or omission of an employee of
the Department of Veterans Affairs acting within the scope of his or her
office or employment, or damage to or loss of Government-owned property
caused by other than a Department of Veterans Affairs employee acting
within the scope of his or her office or employment, will be immediately
reported on SF 92-A, Report of Accident Other Than Motor Vehicle. The
Director of the facility where such occurrence took place will promptly
transmit a copy of the report to the appropriate District Counsel who
will authorize such additional investigation as the circumstances of the
case may warrant.
(ii) Where the incident involves the loss of personal effects of a
patient in a Department of Veterans Affairs facility, the Director will
assist the patient in completing an SF 95, Claim for Damage, Injury, or
Death, and will advise the patient that it will be forwarded immediately
to the appropriate District Counsel for consideration. The Director
will forward along with the claim a brief summary of the facts, as well
as his or her recommendation, to the District Counsel. The District
Counsel will expedite the processing of claims of this nature.
(3) An employee will be designated at each facility to investigate
motor vehicle collisions and other incidents involving damage to, or
loss of privately owned property or personal injury or death, apparently
or allegedly resulting from the negligent or wrongful act or omission of
an employee of the Department of Veterans Affairs acting within the
scope of his or her employment, other than investigation of alleged
malpractice, or damage to or loss of Government-owned property caused by
other than Department of Veterans Affairs employees. In Central Office,
the designation will be made by the Manager, Administrative Services,
and at all other facilities, by the Director.
(4) The District Counsel for the area in which a field facility is
located will be responsible for processing claims involving motor
vehicle collisions and other occurrences resulting in property damage,
personal injury, or death, within such area. The District Counsel,
Department of Veterans Affairs Regional Office, Washington, DC will also
have jurisdiction, except as otherwise provided in paragraph (a)(3) of
this section over incidents occurring in Department of Veterans Affairs
Central Office.
(b) Postclaim requirements. (1) Where a claim is presented, the
District Counsel will immediately acknowledge receipt of the claim and
commence an investigation. In the course of the investigation,
statements will be obtained from the personnel involved as well as from
others who have personal knowledge covering the relevant facts. Copies
of all pertinent Department of Veterans Affairs medical and other
records will be obtained and the copies will be assembled so that they
are identical in arrangement to the originals. Pertinent medical,
employment, and other records maintained by private hospitals, private
industry, and other places will likewise be obtained as well as
photographs or other graphic materials.
(2) After completing the investigation of a claim, the District
Counsel having jurisdiction of the case will review all the evidence
available and prepare a concise, complete report, including a summary of
the evidence, findings of essential facts, citations of applicable local
law, regulations and decisions, and a conclusion as to the liability of
the United States. If liability is indicated, this report will also
include a determination as to the amount of the reasonable compromise or
settlement range of the case. Sufficient copies of the report and
supporting material will be prepared to enable the District Counsel to
submit two copies to the office authorized to dispose of the claim if it
is beyond the investigating office's jurisdiction, and two copies to the
General Counsel if the claim subsequently reaches the litigation stage.
An extra complete copy of the report and supportive material will be
retained by the District Counsel and will be forwarded to the U.S.
Attorney, together with the original report of investigation, if
litigation is initiated. The report itself, and the supporting
materials, will be indexed, tabbed and securely fastened so that it is
one unit, if feasible.
(3) In medical malpractice cases, the District Counsel may refer the
medical records and statements to the District Medical Director for
review and for professional opinion or guidance. In the consideration
of claims involving a medical question, the responsible District Counsel
involved will be guided by the views of the District Medical Director
and the General Counsel will be guided by the views of the Chief Medical
Director as to the standard of medical care and treatment, the nature
and extent of the injuries, the degree of temporary or permanent
disability, the prognosis, the necessity for future treatment or
physical rehabilitation, and any other pertinent medical aspects of a
claim.
(42 FR 41414, Aug. 17, 1977)
38 CFR 14.606 Requests for medical information.
(a) Where there is indication that a tort claim will be filed,
medical records or other information shall be not be released without
approval of the District Counsel.
(b) Request for medical records, documents, reports, or other
information shall be handled in accordance with the provisions of
1.511(a)(2) of this chapter.
(38 FR 5470, Mar. 1, 1973, as amended 42 FR 41415, Aug. 17, 1977)
38 CFR 14.607 Evidence to be submitted.
In conducting the investigation into the facts and circumstances
giving rise to the claim, the District Counsel will consider the
following guidelines to the extent applicable:
(a) Death. In support of a claim based on death, the claimant may be
required to submit the following evidence or information:
(1) An authenticated death certificate or other competent evidence
showing cause of death, date of death, and age of the decedent.
(2) Decedent's employment or occupation at time of death, including
his or her monthly or yearly salary or earnings (if any), and the
duration of his or her last employment or occupation.
(3) Full names, addresses, birth dates, kinship, and marital status
of the decedent's survivors, including identification of those survivors
who were dependent for support upon the decedent at the time of his or
her death.
(4) Degree of support afforded by the decedent to each survivor
dependent upon him or her for support at the time of death.
(5) Decedent's general physical and mental condition before death.
(6) Itemized bills for medical and burial expenses incurred by reason
of the incident causing death, or itemized receipts of payment for such
expenses.
(7) If damages for pain and suffering prior to death are claimed, a
physician's detailed statement specifying the injuries suffered,
duration of pain and suffering, any drugs administered for pain, and the
decedent's physical condition in the interval between injury and death.
(8) Claimant may be requested to furnish a copy of a medical opinion
supporting his or her contention of malpractice.
(9) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the death or the
damages claimed.
(b) Personal injury. In support of a claim for personal injury,
including pain and suffering, the claimant may be required to submit the
following evidence or information:
(1) A written report by the attending physician or dentist setting
forth the nature and extent of treatment, any degree of temporary or
permanent disability, the prognosis, period of hospitalization, and any
diminished earning capacity. In addition, the claimant may be required
to submit to a physical or mental examination by a physician employed by
the Department or another Federal agency. A copy of the report of the
examining physician shall be made available to the claimant upon the
claimant's written request provided that he or she furnished the report
referred to in the first sentence of this subparagraph and has made or
agrees to make available to the Department any other physician's reports
previously or thereafter made of the physical or mental condition which
is the subject matter of the claim.
(2) Itemized bills for medical, dental, and hospital expenses
incurred, or itemized receipts of payment for such expenses.
(3) If the prognosis reveals the necessity for future treatment, a
statement of expected expenses for such treatment.
(4) If a claim is made for loss of time from employment, a written
statement from his or her employer showing actual time lost from
employment, whether he or she is a full- or part-time employee, and
wages or salary actually lost.
(5) If a claim is made for loss of income and the claimant is
self-employed, documentary evidence showing the amount of earnings
actually lost.
(6) Claimant may be requested to furnish a copy of a medical opinion
supporting his or her contention of malpractice.
(7) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the personal injury
or the damages claimed.
(c) Property damage. In support of a claim for injury to or loss of
property, real or personal, the claimant may be required to submit the
following evidence or information:
(1) Proof of ownership.
(2) A detailed statement of the amount claimed with respect to each
item of property.
(3) An itemized receipt of payment for necessary repairs or itemized
written estimates of the cost of such repairs.
(4) A statement listing date of purchase, purchase price and salvage
value, where repair is not economical.
(5) Any other evidence or information which may have a bearing on
either the responsibility of the United States for the damage to or loss
of property or the damages claimed.
(38 FR 5470, Mar. 1, 1973, as amended at 42 FR 41415, Aug. 17, 1977)
38 CFR 14.608 Disposition of claims.
(a) Disallowance and appeal. Where a determination is made that
there is no liability on the part of the United States, the District
Counsel or the General Counsel, as appropriate, will notify the claimant
(or claimant's attorney or legal representative) by certified or
registered mail. Notification of final denial may include a statement
of reasons for the denial. Denial of a tort claim by any District
Counsel will include appropriate notice of the appellate rights of the
claimant. The claimant shall be advised in the denial letter that he or
she may appeal the denial within the Department of Veterans Affairs, and
that such appeal, if made, should be addressed to and received by the
General Counsel within 6 months of the mailing date of the denial
letter. The denial letter shall also include a statement that, if the
claimant is dissatisfied with the Department action, and/or does not
wish to exercise the right to appeal the denial to the General Counsel,
suit in an appropriate United States District Court may be instituted
not later than 6 months after the date of mailing of the notice of final
denial.
(b) Statute of limitations. Prior to the commencement of suit and
prior to the expiration of the 6-month period provided in 28 U.S.C.
2401(b), a claimant, or claimant's duly authorized agent, or legal
representative, may file a written request with the Department for an
appeal from denial of a claim issued under paragraph (a) of this
section. Upon the timely filing of an appeal, the Department shall have
6 months from the date of filing in which to make a final disposition of
the claim, and the claimant's option under 28 U.S.C. 2675(a), shall not
accrue until 6 months after the filing of an appeal. Final Department
action on an appeal shall be effected by the General Counsel. If the
previous denial decision is upheld, the notice shall be by certified
mail and will include advice as to the right to bring suit within 6
months.
(c) Allowance or compromise. (1) In the case of a claim where a
determination is made by the District Counsel (if the claim is one for
which authority has been delegated under 2.6(e) of this chapter and
14.602(c), or by the General Counsel, that there is or could be
liability on the part of the Government, an attempt will be made to
obtain an agreement with the claimant, or claimant's attorney, as to a
fair and reasonable settlement or compromise.
(2) If the claim is one being handled by the District Counsel and a
settlement agreement is reached in a sum of $2,500 or less, the District
Counsel will approve the voucher (SF 1145, Voucher for Payment under
Federal Tort Claims Act) and send the signed original and three yellow
copies to the General Counsel for processing. If the settlement
agreement is above $2,500 but within the delegated authority of the
District Counsel, the District Counsel will approve the voucher (SF
1145) and send the signed original and three yellow copies to the
General Accounting Office for payment. Vouchers for settlement in
excess of $25,000 will not be signed by any District Counsel, but will
be forwarded to the General Counsel for signature and transmittal to the
General Accounting Office. Also, in any case which is settled by the
District Counsel at the specific request of the General Counsel, the
voucher will not be approved by the District Counsel but will be sent to
the General Counsel's Office for approval and processing. All original
vouchers will be signed by the claimant or claimant's legal
representative and his or her spouse, if appropriate. Where required by
State law, approval of a court of competent jurisdiction will be
obtained. Certified copies of appropriate court documents and duplicate
originals of ''hold harmless'' and ''covenant not to sue'' agreements
will accompany the transmittal of the voucher.
(3) If the claimant is a veteran, or the spouse or child of a veteran
in a wrongful death claim, a copy of the letter to the General
Accounting Office will be sent to the Adjudication Division of the
regional office having jurisdiction over the veteran's claims folder.
(4) When a District Counsel is unable to effect settlement of a tort
claim considered to be appropriate for compromise within authorized
limits, the District Counsel will confer with the next level of
supervising authority before issuing a letter of denial.
(d) Attorney fees. In any claim administratively settled or
compromised, no specific portion of the award shall be designated as an
attorney fee. However, 28 U.S.C. 2678 prohibits an attorney from
charging, demanding, receiving, or collecting for services rendered,
fees in excess of 20 per centum of any award, compromise, or settlement
made pursuant to 28 U.S.C. 2672. Violation of this prohibition will
subject the attorney to a fine of not more than $2,000 or imprisonment
for not more than 1 year, or both. When a claimant is represented by an
attorney, the voucher for payment shall designate as ''payee'' both the
claimant and claimant's attorney and the check shall be delivered to the
attorney whose address shall appear on the voucher.
(e) Setoff for cost of unauthorized medical treatment. In any tort
claim administratively settled or compromised where the claimant owes
the Department of Veterans Affairs for unauthorized medical treatment,
there will be included in the tort claim award the amount of the
claimant's indebtedness to the Government. The amount of the
indebtedness is for credit to the appropriation account from which the
services were provided. The voucher prepared for settlement of the
claim will specify the amount to be deposited to the credit of the
designated account and that the balance of the award be paid to the
claimant.
(42 FR 41416, Aug. 17, 1977, as amended at 43 FR 2722, Jan. 19, 1978)
38 CFR 14.608 Litigated Claims
38 CFR 14.609 Tort suits following denial of an administrative tort
claim.
Where civil action against the United States follows denial of an
administrative claim, the General Counsel, upon receipt of notice of the
action, will furnish to the Department of Justice a copy of the
investigation report and other related materials obtained in connection
with the consideration of the administrative claim previously submitted
to the Department. The General Counsel will instruct the District
Counsel to forward to the appropriate U.S. Attorney the investigation
report and other related materials, including medical records and any
other information, which may be appropriate to the litigation. The
District Counsel will keep the General Counsel advised of subsequent
developments, and will render assistance as requested by the U.S.
Attorney and the General Counsel with respect to the defense of the
suit.
(42 FR 41416, Aug. 17, 1977)
38 CFR 14.610 Suits against Department of Veterans Affairs employees
arising out of the operation of motor vehicles or based upon medical
care and treatment furnished in or for the Veterans Health Services and
Research Administration.
(a)(1) Section 7316 of title 28 U.S.C., provides that no suit will
lie against a Federal employee, or the employee's estate, for damage to
property, personal injury, or death resulting from his or her operation
of a motor vehicle while acting within the scope of his or her office or
employment with the Federal Government. An action against the United
States under 28 U.S.C. 2671-2680 is the exclusive remedy under these
circumstances.
(2) Section 7316 of title 38 U.S.C., provides that (i) where there is
remedy against the United States under 28 U.S.C. 2671-2680, or (ii)
where proceedings for compensation or other benefits from the United
States are provided by law, and the availability of such benefits
precludes a remedy under 28 U.S.C. 2671-2680 (as is the case, for
example, in the Federal Employees' Compensation Act, 5 U.S.C. 8101, et
seq.), such recourse is the exclusive remedy for property damage,
personal injury, or death allegedly occurring as a result of malpractice
or negligence committed by a physician, dentist, nurse, physician's
assistant, dentist's assistant, pharmacist or paramedical (for example,
medical and dental technicians, nursing assistants, and therapists), or
other supporting personnel, while furnishing medical care and treatment
in the exercise of duties in or for the Veterans Health Services and
Research Administration. Accordingly, a malpractice or negligence suit
for property damage, personal injury, or death will not lie against such
personnel under the circumstances set forth in this subparagraph.
(b) The Department of Justice will defend any civil action or
proceeding brought in any court against persons referred to in paragraph
(a) (1) or (2) of this section under the circumstances set forth
therein. Accordingly, when a suit is filed against any employee of the
Department of Veterans Affairs (1) as a result of the employee's
operation of a motor vehicle incident to employment with the Government,
or (2) as a result of furnishing medical or dental care and treatment in
or for the Veterans Health Services and Research Administration, the
employee shall immediately forward a copy of all papers served on him or
her to the District Counsel having jurisdiction over the area in which
the employee works. The employee will also promptly forward to the
appropriate District Counsel a signed statement indicating whether he or
she desires the Department of Justice to provide representation, and to
otherwise protect his or her interests as provided for by law. Even
though there may not have been service, if an employee learns that a
suit arising from either of the above-described circumstances has been
filed against him or her, the employee shall immediately so advise the
appropriate District Counsel, provide the District Counsel with a brief
description of the facts unsolved, and state whether he or she desires
Federal intervention.
(c) Upon receipt of notice that suit has been filed against an
employee of the Department of Veterans Affairs who is entitled to
protection under 28 U.S.C. 2679 or 38 U.S.C. 7316, the District Counsel
having jurisdiction over the place where the employee works will conduct
a preliminary investigation, which will include an affidavit by the
employee's supervisor as to whether the defendant-employee was acting in
the scope of his or her employment at the time of the incident, and a
request from the defendant-employee for representation. The affidavit
will contain a factual description of the employee's duties and
responsibilities at the time of the incident and should describe the
incident in question. Upon receipt of such information, the District
Counsel will make a preliminary determination as to whether such suit
comes within the provisions of either 28 U.S.C. 2679 or 38 U.S.C. 7316.
The District Counsel will refer the matter to the appropriate U.S.
Attorney with a recommendation as to whether the employee is eligible
for protection under 28 U.S.C. 2679 or 38 U.S.C. 7316. The U.S. Attorney
will decide whether the Department of Veterans Affairs employee is
eligible for the protection. The District Counsel will submit to the
General Counsel a preliminary report in duplicate containing the
information furnished the U.S. Attorney. In all such cases, the District
Counsel will conduct a complete investigation of the facts and law. Two
copies of the investigation report will be sent to the General Counsel
and one copy will be sent to the appropriate U.S. Attorney. The General
Counsel, through the District Counsel, will keep the employee advised of
the action being taken concerning the suit. In the event that the U.S.
Attorney or the Department of Justice determines that the employee is
not eligible for immunization pursuant to one of the aformentioned
provisions, the General Counsel's office, through the district Counsel,
will advise the employee and will call to his or her attention the
discretionary conditional indemnification provisions of section 7316(e)
of title 38 U.S.C.
(d) Where a civil action is commenced in a State court against a
Department of Veterans Affairs employee, and the matter is within the
purview of either 28 U.S.C. 2679, or 38 U.S.C. 7316, the Department of
Justice will be asked to remove such suit to the appropriate Federal
District Court before trial, where it will be deemed an action against
the United States. The defendant employee will be dismissed from the
suit. After such removal, the United States has available all defenses
to which it would have been entitled if the action had originally been
commenced against the United States in the proper Federal District
Court. Should a Federal District Court determine that the Department of
Veterans Affairs employee whose acts or omissions gave rise to the suit
was not acting within the scope of his or her office or employement, and
therefore not eligible for immunization as provided for in the
aforementioned section, the case will be remanded to the State court
from which it was removed, the employee will be reinstated as the
defendant, and the United States will be dismissed from the suit. Where
the employee has been reinstated as the defendant under such
circumstances, in order to protect any rights which he or she may have
under 38 U.S.C. 7316(e), he or she shall immediately notify the General
Counsel, through the local District Counsel. Through the District
Counsel, the General Counsel will call the employee's attention to the
discretionary conditional indemnification provisions of section 7316(e).
(e) Under the authority of 38 U.S.C. 7316(e), the Secretary of
Veterans Affairs may pay for monetary damages sustained by or assessed
against an individual (or his or her estate) described in paragraph (a)
(2) of this section, as the result of any suit instituted against such
individual which is not congnizable under the provisions of 28 U.S.C.
2671-2680 because the individual was assigned to a foreign country, the
said individual was detailed to a State or political division thereof,
or the cause of action was specifically excluded under the provisions of
28 U.S.C. 2680(h); Provided, That the amount of damages sustained is
reasonable when compared with similar cases, litigated or settled, and
the United States was given a reasonable opportunity to defend such
individual and to participate in settlement negotiations.
(42 FR 41417, Aug. 17, 1977)
38 CFR 14.610 Administrative Settlement of Tort Claims Arising in Foreign Countries
38 CFR 14.615 General.
(a) Authority. Section 515(b), title 38 U.S.C., provides that the
Secretary of Veterans' Affairs may pay tort claims, in the manner
authorized in the first paragraph of section 2672 of title 28 U.S.C.,
when such claims arise in foreign countries in connection with
Department of Veterans Affairs operations abroad.
(b) Action by claimant. Claims for property loss or damage may be
filed by the owner of the property or his or her duly authorized agent
or legal representative. If the property was insured and the insurer is
subrogated, in whole or in part, and if both the owner and the insurer
desire to file a claim for their respective losses they should join in
one claim. Claims for personal injury may be filed by the injured
person or his or her agent or legal representative. Claims for death
may be filed by the personal representative of the decedent or any other
legally qualified person. When filed by an agent or legal
representative, the claim must show the title or capacity of the person
representing the claimant and be accompanied by evidence of the
appointment of such person as agent, legal representative,
executor/executrix, administrator/administratrix, guardian, or other
fiduciary.
(c) Time for filing. A claim may not be allowed under 38 U.S.C.
515(b) unless it is presented to the Secretary or his or her designee
within 2 years after the claim accrues.
(38 FR 5473, Mar. 1, 1973, as amended at 42 FR 41417, Aug 17, 1977)
38 CFR 14.616 Form and place of filing claim.
(a) Form of claim. Claims arising under 38 U.S.C. 515(b) will be
prepared in the form of a sworn statement and submitted in duplicate.
The original copy of the claim will be sworn to or affirmed before an
official with authority to administer oaths or affirmations and will
contain the following information, at least:
(1) The name and address of claimant;
(2) The amount claimed for injury or death, and for property loss or
damage;
(3) If property was lost or damaged, the amount paid or payable by
the insurer together with the name of the insurer;
(4) A detailed statement of the facts and circumstances giving rise
to the claim, including the time, place, and date of the accident or
incident;
(5) If property was involved, a description of the property and the
nature and extent of the damage and the cost of repair or replacement
based upon at least two impartial estimates;
(6) If personal injury was involved, the nature of the injury, the
cost of medical and/or hospital services, and time and income lost due
to the injury;
(7) If death is involved, the names and ages of claimants and their
relationship to decedent;
(8) The name and official position of the employee of the United
States allegedly responsible for the accident or injury, or loss or
damage of property;
(9) The names and addresses of any witnesses to accident or incident;
and
(10) If desired, the law applicable to the claim.
(b) Place of filing claim. Claims arising in the Philippines under
38 U.S.C. 515(b) will be filed with the Director, Department of Veterans
Affairs Regional Office, Manila, Republic of the Philippines. Claims
arising in other foreign countries will be filed with the American
Embassy or Consulate nearest the place where the incident giving rise to
the claim took place.
(c) Evidence to be submitted by claimant -- (1) General. The amount
claimed on account of damage to or loss of property or on account of
personal injury or death shall, so far as possible, be substantiated by
competent evidence. Supporting statements, estimates and the like will,
if possible, be obtained from disinterested parties. All evidence will
be submitted in duplicate. Original evidence or certified copies shall
be attached to the original copy of the claim, and simple copies shall
be attached to the other copy of the claim. All documents in other than
the English language will be accompanied by English translations.
(2) Personal injury or death. In support of claims for personal
injury or death, the claimant will submit, as may be appropriate,
itemized bills for medical, hospital, or burial expenses actually
incurred; a statement from the claimant's or decedent's employer as to
time and income lost from work; and a written report by the attending
physician with respect to the nature and extent of the injury, the
nature and extent of treatment, the degree of disability, the period of
hospitalization or incapacitation, and the prognosis as to future
treatment, hospitalization and the like.
(3) Damage to personal property. In support of claims for damage to
personal property which has been repaired, the claimant will submit an
itemized receipt, or, if not repaired, itemized estimates of the cost of
repairs by two reliable parties who specialize in such work. If the
property is not economically repairable, the claimant will submit
corroborative statements of two reliable, qualified persons with respect
to cost, age of the property and salvage value.
(4) Damage to real property. In support of claims for damage to
land, trees, buildings, fences, or other improvements to real property,
the claimant will submit an itemized receipt if repairs have been made,
or, if repairs have not been made, itemized estimates of the cost of
repairs by two reliable persons who specialize in such work. If the
property is not economically repairable, the claimant will submit
corroborative statements of two reliable, qualified persons with respect
to the value of the improvements both before and after the accident or
incident and the cost of replacements.
(5) Damage to crops. In support of claims for damage to crops, the
claimant will submit an itemized signed statement showing the number of
acres, or other unit measure of crop damaged, the probable yield per
unit, the gross amount which would have been realized from such probable
yield and an estimate of the costs of cultivating, harvesting and
marketing the crop. If the crop is one which need not be planted each
year, the diminution in value of the land beyond the damage to the
current year's crop will also be stated.
(Approved by the Office of Management and Budget under control number
2900-0437)
(38 FR 5474, Mar. 1, 1973, as amended at 42 FR 41418, Aug. 17, 1977;
49 FR 32848, Aug. 17, 1984)
38 CFR 14.617 Disposition of claims.
(a) Disposition of claims arising in Philippines. All claims arising
under 38 U.S.C. 515(b) in the Philippines, including a complete
investigation report and a brief re1sume1 of applicable law, will be
forwarded directly by the Director to the General Counsel, together with
a recommendation as to disposition.
(b) Disposition of claims arising in foreign countries other than the
Philippines. When a claim is received in an American Embassy or
Consulate, the Embassy or Consulate receiving such claim shall make such
investigation as may be necessary or appropriate for a determination of
the validity of the claim and thereafter shall forward the claim,
together with all pertinent material, including a re1sume1 of applicable
law and a recommendation regarding allowance or disallowance of the
claim, through regular channels of the Department of State to the
General Counsel, Department of Veterans Affairs Central Office,
Washington, DC.
(c) Payment of claims. Upon determining that there is liability on
the part of the United States under 38 U.S.C. 515(b), the General
Counsel, or such other personnel as may be designated by the Secretary,
will take the necessary action to effect payment.
(38 FR 5474, Mar. 1, 1973, as amended at 42 FR 41418, Aug. 17, 1977)
38 CFR 14.617 Claims for Damage to or Loss of Government Property
38 CFR 14.618 Collection action.
(a) In a case where the District Counsel determines that damage to or
loss of Government property under the jurisdiction of the Department of
Veterans Affairs resulted from the negligence or other legal wrong of a
person other than an employee of the United States, while acting within
the scope of his or her employment, the District Counsel will request
payment in full of the amount of damage from the person liable therefor
or such person's insurer.
(b) The District Counsel may collect, compromise, suspend, or
terminate collection action on any such claim as is authorized under
2.6(e)(4)(ii) of this chapter, in conformity with the standards in
1.900 series of this chapter. Any such claim that has not been
collected in full and which has not been compromised, suspended or
terminated and does not exceed $20,000, will be referred by the District
Counsel to the appropriate U.S. attorney along with the information
required by 1.951 through 1.953 of this chapter. Any claim in excess
of $20,000 for which payment in full has not been made, will be
transmitted along with the report required by 14.605(a)(2)(i), a report
on credit data ( 1.952 of this chapter), and any other pertinent
information, to the General Counsel for appropriate action.
(c) The General Counsel or those designated in 2.6(e)(4) of this
chapter will take action to collect in full on such claims and to
compromise, suspend, or terminate any such claims not exceeding $20,000
in conformity with 1.900 series of this chapter. Any such claims not
compromised, or on which collection actions is not suspended or
terminated and does not exceed $20,000, will be referred to the
appropriate U.S. Attorney. Any such claims in excess of $20,000, which
have not been collected in full, will be referred by the General Counsel
to the Department of Justice for appropriate action.
(d) The provisions of paragraphs (a) through (c) of this section are
not applicable to the collection of claims involving damage to General
Services Administration Motor Pool System vehicles issued for Department
of Veterans Affairs use. Whenever there is any indication that a party
other than the operator of a motor pool system vehicle is at fault in an
accident, all documents and data pertaining to the accident and its
investigation will be submitted to the General Services Administration
Regional Counsel of the region that issued the vehicle who has
jurisdiction over such matters. Whenever a motor pool system vehicle is
involved in an accident, resulting in damage to the property of, or
injury to the person of a third party, and the third party asserts a
claim against the Department of Veterans Affairs based upon the alleged
negligence of the vehicle operator, the claim will be considered under
14.600 et seq.
(38 FR 5474, Mar. 1, 1973, as amended at 42 FR 41418, Aug. 17, 1977)
38 CFR 14.618 Claims for Cost of Medical Care and Services
38 CFR 14.619 Collection action.
(a) In a case where the District Counsel determines that medical care
and services were furnished as a result of the negligence of a third
party, other than an employee of the United States while acting in the
scope of his or her employment, the District Counsel will request
payment in full of the amount of damage from the person liable therefor
or such person's insurer.
(b) The District Counsel may collect, compromise, suspend, or
terminate collection activity on any such claim as is authorized under
2.6(e)(3) of this chapter. However, claims in excess of $40,000 may be
compromised, settled, or waived only with the prior approval of the
Department of Justice, which will be obtained through the General
Counsel. Any such claim that has not been collected in full and which
has not been compromised, suspended or terminated will be referred by
the District Counsel to the appropriate U.S. Attorney along with
appropriate information necessary to protect the interest of the
Government. A copy of the referral to the U.S. Attorney will be sent to
the General Counsel's office.
(c) In a case where the District Counsel determines that a claim is
appropriate under the provisions of 17.48(g) of this chapter or 38
U.S.C. 1729, for the cost of medical, hospital, or surgical care, the
District Counsel may assert the claim and collect payment in full. The
District Counsel may compromise, settle, waive, suspend or terminate
collection activity on any claim not exceeding $40,000. Claims in
excess of $40,000 may only be compromised, settled, or waived with the
approval of the General Counsel. Any such claim not compromised,
settled, or waived or where collection action is not suspended or
terminated will be referred to the appropriate United States Attorney
with sufficient data to enable that office to protect the interest of
the Government. A copy of all materials referred to the United States
Attorney will be furnished the General Counsel.
(Authority: 38 U.S.C. 1729(c)(1))
(42 FR 41418, Aug. 17, 1977, as amended at 43 FR 10560, Mar. 14,
1978; 51 FR 23227, June 26, 1986)
38 CFR 14.619 Representation of Department of Veterans Affairs Claimants; Recognition of Organizations; Accredited Representatives, Attorneys, Agents; Rules of Practice and Information Concerning Fees, 38 U.S.C. 5901-5905
38 CFR 14.626 Purpose.
The purpose of the regulation of representatives is to assure that
claimants for Department of Veterans Affairs benefits have qualified
representation in the preparation, presentation, and prosecution of
claims for veterans' benefits.
(43 FR 46535 -- 46537, Oct. 10, 1978)
38 CFR 14.627 Definitions.
As used in regulations on representation of Department of Veterans
Affairs claimants:
(a) Accreditation means recognition by the Department of Veterans
Affairs of representatives, attorneys, and agents to represent
claimants.
(b) Agent means a person who has met the standards and qualifications
outlined in 14.629(b).
(c) Attorney means a member in good standing of a State bar.
(d) Benefit means any payment, service, commodity, function, or
status, entitlement to which is determined under laws administered by
the Department of Veterans Affairs pertaining to veterans, dependents,
and survivors.
(e) Cancellation means termination of authority to represent
claimants.
(f) Claim means application made under title 38 U.S.C., and
implementing directives, for entitlement to Department of Veterans
Affairs benefits, reinstatement, continuation, or increase of benefits,
or the defense of a proposed agency adverse action concerning benefits.
(g) Claimant means a person who has filed a written application for
determination of entitlement to benefits provided under title 38 U.S.C.,
and implementing directives.
(h) Recognition means certification by the Department of Veterans
Affairs of organizations to represent claimants.
(i) Representative means a person who has been recommended by a
recognized organization and accredited by the Department of Veterans
Affairs.
(j) State includes any State, possession, territory, or Commonwealth
of the United States, and the District of Columbia.
(k) Suspension means temporary withholding of authority to represent
claimants.
(53 FR 52419, Dec. 28, 1988)
38 CFR 14.628 Recognition of organizations.
Authorized officers of an organization may request recognition by
letter to the Secretary of Veterans Affairs.
(a) National organization. An organization may be recognized as a
national organization if:
(1) It was recognized by the Department of Veterans Affairs prior to
October 10, 1978, and continues to satisfy the requirements of
14.628(d) of this section, or
(2) It satisfies the following requirements:
(i) Requirements set forth in paragraph (d) of this section,
including information required to be submitted under paragraph (e) of
this section;
(ii) In the case of a membership organization, membership of 2,000 or
more persons, as certified by the head of the organization;
(iii) Sizable number of claimants for which powers of attorney for
claim representation are held;
(iv) Present capability to represent claimants before the Board of
Veterans Appeals in Washington, DC; and
(v) Geographic diversification, i.e., sizable number of chapters or
offices in more than one State.
(b) State organization. An organization created by a State
government for the purpose of serving the needs of veterans of that
State may be recognized. Only one such organization may be recognized
in each State.
(c) Other organization. An organization other than a State or
national organization as set forth in paragraphs (a) and (b) of this
section may be recognized when the Department of Veterans Affairs has
determined that it is a veterans' service organization primarily
involved in delivering services connected with either title 38 U.S.C.,
benefits and programs or other Federal and State programs designed to
assist veterans. The term veteran as used in this paragraph shall
include veterans, former armed forces personnel, and the dependents or
survivors of either. Further, the organization shall provide
responsible, qualified representation in the preparation, presentation,
and prosecution of claims for title 38 U.S.C., benefits.
(d) Requirements for recognition. In order to be recognized under
paragraph (a) or (c) of this section the organizaiton shall:
(1) Have as a primary purpose services to veterans; and
(2) Demonstrate a substantial service commitment to veterans either
by showing a sizable organizational membership or by showing performance
of those veterans' services to a sizable number of veterans; and
(3) Commit a significant portion of its assets to veterans' services;
and
(4) Establish either that complete claims service will be provided to
each veteran requesting representation, or shall give written notice of
any limitation in its claims service with advice concerning alternate
service. Complete claims service includes the ability to assure
representation before the Board of Veterans Appeals. However,
representation before the Board of Veterans Appeals may be provided by
agreement with another organization recognized by the Department of
Veterans Affairs; and
(5) Take affirmative action, including training and monitoring of its
accredited representatives, to ensure proper handling of claims.
(e) Information to be submitted by organizations requesting
recognition. In order for an organization to be recognized under
paragraphs (a) or (c) of this section, the following information shall
be supplied:
(1) Purpose. A statement outlining the purpose of the organization,
the extent of services provided, and the manner in which veterans would
benefit by recognition.
(2) Service commitment. (i) The number of members and number of
posts, chapters, or offices and their addresses; and
(ii) A copy of the articles of incorporation, constitution, charter,
and bylaws of the organization, as appropriate; and
(iii) The type of title 38 U.S.C., services performed or to be
performed, with an approximation of the number of veterans and dependent
clients served by the organization in each type of service designated;
and/or
(iv) The type of services, if any, performed in connection with other
Federal and State programs which are designed to assist former armed
forces personnel and their dependents, and an approximation of the
number of veteran and dependent clients served by the organization under
each program designated.
(3) Assets. (i) A copy of the last financial statement of the
organization indicating the amount of funds allocated for conducting
veterans' services; and
(ii) A statement indicating that use of the organization's funding is
not subject to limitations imposed under any Federal grant or law which
would prevent it from representing claimants before the Department of
Veterans Affairs.
(4) Training. (i) A statement of the skills, training, and other
qualifications for handling veterans' claims of paid or volunteer staff
personnel; and
(ii) A plan for recruiting and training qualified claim
representatives, including the number of hours of formal classroom
instruction, the subjects to be taught, the period of on-the-job
training, a schedule or timetable for such training, the projected
number of trainees for the first year, and the name(s) and
qualifications of the individual(s) primarily responsible for the
training.
(5) Complete claims service. (i) The record of representation before
a discharge review board, or other proof of ability to represent
claimants before the Department of Veterans Affairs; and
(ii) Proof of capability of provide representation before the Board
of Veterans Appeals; or
(iii) Proof of association or agreement for the purpose of
representation before the Board of Veterans Appeals with a recognized
service organizations, or the proposed method of informing claimants of
the limitations in service that can be provided, with advice concerning
alternative service.
(6) Supervision. The organization shall execute an agreement which
states that it shall take affirmative action, including training and
monitoring of its accredited representatives, to ensure proper handling
of claims.
(7) Other. (i) A statement that neither the organization nor its
accredited representatives will charge or accept a fee or gratuity for
service to a claimant and that the organization will not represent to
the public that Department of Veterans Affairs recognition of the
organization is for any purpose other than claimant representation;
(ii) The names, titles, and addresses of officers and the officials
authorized to certify representatives; and
(iii) The names, titles, and addresses of full-time paid employees
who are qualified to act as accredited representatives.
(f) Recognition or denial. A notice of the Secretary's determination
on a request for recognition will be sent to an organization within 90
days of receipt of all information to be supplied. The notice will
state that recognition is solely for the purpose of claimant
representation before the Department of Veterans Affairs. If
recognition is denied an organization, the Department of Veterans
Affairs will set forth an explanation of the reasons for denial. A
denial of recognition may be appealed to the Secretary within 90 days of
the denial. The Department of Veterans Affairs will consider the appeal
within 30 days of receiving such request. The organization will have an
opportunity to fully document its position, and the appeal will cover
all aspects of the application for recognition and the denial.
(g) Requests for further information. The Secretary or the
Secretary's designee may request further information from any recognized
organization, including progress reports, updates, or verifications.
(Information collection requirements contained in paragraph (e) were
approved by the Office of Management and Budget under control number
2900-0439).
(Authority: 38 U.S.C. 501(a), 5902)
(53 FR 52419, Dec. 28, 1988, as amended at 57 FR 33878, July 31,
1992)
38 CFR 14.629 Requirements for accreditation of representatives,
agents, and attorneys.
The District Counsel will resolve any question of current
qualifications of a representative, agent, or attorney. The claimant;
the representatives, agent, or attorney, or an official of the
organization for which such person acts; or the appropriate Department
of Veterans Affairs officials may appeal such determination to the
General Counsel.
(a) Representatives. A recognized organization shall file with the
Office of the General Counsel Department of Veterans Affairs Form 2-21
(Application for Accreditation as Service Organization Representative)
for each person it desires accredited as a representative of that
organization. In recommending a person, the organization shall certify
that the designee:
(1) Is of good character and reputation; and
(i) Has successfully completed a Department of Veterans Affairs
approved course of instruction on veterans' benefits; or
(ii) Has passed an examination approved by the Department of Veterans
Affairs; or
(iii) Has otherwise demonstrated an ability to represent claimants
before the Department of Veterans Affairs;
(2) Is either a member in good standing or a paid employee of such
organization working for it not less than 1,000 hours annually; is
accredited and functioning as a representative of another recognized
organization; or, in the case of a county veteran's service officer
recommended by a recognized State organization, meets the following
criteria:
(i) Is a paid employee of the county working for it not less than
1,000 hours annually;
(ii) Has successfully completed a course of training and an
examination which have been approved by a VA District Counsel within the
State; and
(iii) Will receive either regular supervision and monitoring or
annual training to assure continued qualification as a representative in
the claim process; and
(3) Is not employed in any civil or military department or agency of
the United States.
(Authority: 38 U.S.C. 303, 501 and 5902)
(b) Agents. Individuals desiring accreditation as agents must file
an application with the Office of the General Counsel and establish that
they are of good character and reputation. In addition, applicants
shall pass a written examination concerning laws administered by the
Department of Veterans Affairs which shall be prepared and graded in the
Office of the General Counsel. The examination may be taken at any
convenient District Counsel office under the supervision of the District
Counsel. No applicant shall be allowed to sit for the examination more
than twice in any 6-month period.
(c) Attorneys. (1) An attorney engaged by a claimant shall state in
writing on his or her letterhead that the attorney is authorized to
represent the claimant in order to have access to information in the
claimant's file pertinent to the particular claim presented. For an
attorney to have complete access to all information in an individual's
records, the attorney must provide a signed consent from the claimant or
the claimant's guardian. The consent shall be equivalent to an executed
power of attorney.
(2) If the claimant so consents, an attorney associated or affiliated
with the claimant's attorney of record or employed by the same legal
services office as the attorney of record may assist in representation
and may have access to the claimant's records in the same manner as the
attorney of record.
(3) Legal interns, law students, and paralegals may not be
independently accredited to represent claimants under this paragraph.
(See 14.630; see also 19.156).
(4) Unless revoked by the claimant, consent provided under paragraph
(c)(2) of this section or 14.631(c)(iii) shall remain effective in the
event the claimant's original attorney is replaced as attorney of record
by another member of the same law firm or an attorney employed by the
same legal services office.
(Approved by the Office of Management and Budget under control number
2900-0018)
(53 FR 52421, Dec. 28, 1988, as amended at 55 FR 38057, Sept. 17,
1990)
38 CFR 14.630 Authorization for a particular claim.
Any person may be authorized to prepare, present, and prosecute a
particular claim. A proper power of attorney, and a statement signed by
the person and the claimant that no compensation will be charged or paid
for the services, shall be filed with the office where the claim is
presented. A signed writing, which may be in letter form, identifying
the claimant and the type of benefit or relief sought, specifically
authorizing a named individual to act as the claimant's representative,
and further authorizing direct access to records pertinent to the claim,
will be accepted as a power of attorney. A person accredited under this
section shall represent only one claimant; however, in unusual
circumstances, appeal of such limitation may be made to the General
Counsel.
(Authority: 38 U.S.C. 5903)
(53 FR 52421, Dec. 28, 1988)
38 CFR 14.631 Powers of attorney.
(a) A power of attorney, executed on either Department of Veterans
Affairs Form 23-22 (Appointment of Veterans Service Organization as
Claimant's Representative) or Department of Veterans Affairs Form 2-22a
(Appointment of Attorney or Agent as Claimant's Representative), is
required to represent a claimant, except when representation is by an
attorney who complies with 14.629(c) or when representation by an
individual is authorized under 14.630. The power of attorney shall meet
the following requirements:
(1) Contain signature by:
(i) The claimant, or
(ii) The claimant's guardian, or
(iii) In the case of an incompetent, minor, or otherwise
incapacitated person without a guardian, the following in the order
named -- spouse, parent, other relative or friend (if interests are not
adverse), or the director of the hospital in which the claimant is
maintained; and
(2) Shall be presented to the appropriate Department of Veterans
Affairs office for filing in the veteran's claims folder.
(b) Questions concerning powers of attorney shall be referred to the
District Counsel of jurisdiction for initial determination. This
determination may be appealed to the General Counsel.
(c)(1) Only one organization, agent, or attorney will be recognized
at one time in the prosecution of a particular claim. Except as
provided in 14.629(c) and paragraphs (c)(2) and (c)(3) of this section,
all transactions concerning the claim will be conducted exclusively with
the recognized organization, agent, or attorney of record until notice
of a change, if any, is received by the Department of Veterans Affairs.
(2) An organization named in a power of attorney executed in
accordance with paragraph (a) of this section may employ an attorney to
represent a claimant in a particular claim. Unless the attorney is an
accredited representative of the organization, the written consent of
the claimant shall be required.
(3) Legal interns, law students, and paralegals may assist in the
preparation, presentation, or prosecution of a claim under the direct
supervision of a claimant's attorney of record designated under
14.629(c), or an attorney who is either employed by or an accredited
representative of an organization named in a power of attorney executed
in accordance with paragraph (a) of this section. However, prior to
their participation, the claimant's written consent must be furnished to
the Department of Veterans Affairs. Such consent must specifically
state that a legal intern, law student, or paralegal furnishing written
authorization from the attorney of record or the organization named in
the power of attorney may have access to the claimant's records and that
such person's participation in all aspects of the claim is authorized.
The supervising attorney, or an attorney authorized under 14.629(c)(2),
must be present at any hearing in which a legal intern, law student, or
paralegal participates.
(d) A power of attorney may be revoked at any time, and an attorney
may be discharged at any time. Unless a claimant specifically indicates
otherwise, the receipt of a new power of attorney shall constitute a
revocation of an existing power of attorney. If an attorney submits a
letter of representation under 14.629 regarding a particular claim, or
a claimant authorizes a person to provide representation in a particular
claim under 14.630, such specific authority shall constitute a
revocation of an existing general power of attorney filed under
paragraph (a) of this section only as it pertains to, and during the
pendency of, that particular claim. Following the final determination
of such claim, the general power of attorney shall remain in effect as
to any new or reopened claim.
(e) The authority which a power of attorney provides may be continued
for a reasonable time after the death of the claimant, to determine
whether the claim will be continued by a new claimant and whether a new
power of attorney will be executed.
(Authority: 38 U.S.C. 5902, 5903, 5904)
(43 FR 46535 -- 46537, Oct. 10, 1978, as amended at 53 FR 52421, Dec.
28, 1988)
38 CFR 14.632 Letters of accreditation.
If challenged, the qualifications of prospective representatives or
agents shall be verified by the District Counsel of jurisdiction. The
report of the District Counsel, if any, including any recommendation of
the Department of Veterans Affairs facility director, and the
application shall be transmitted to the General Counsel for final
action. If the designee is disapproved by the General Counsel, the
reasons will be stated and an opportunity will be given to submit
additional information. If the designee is approved, letters of
accreditation, or an identification card, will be issued by the General
Counsel or the General Counsel's designee and will constitute authority
to prepare, present, and prosecute claims in all Department of Veterans
Affairs installations. Letters of accreditation to former employees of
the Federal Government will advise such individuals of the restrictions
and penalties concerning post-employment conflict of interest provided
in title 18, United States Code. Record of accreditation will be
maintained in the Office of the General Counsel.
(Authority: 38 U.S.C. 5902, 5904).
(53 FR 52422, Dec. 28, 1988)
38 CFR 14.633 Termination of accreditation of agents, attorneys, and
representatives.
(a) Accreditation may be canceled at the request of an agent,
attorney, representative, or organization.
(b) Accreditation shall be canceled at such time a determination is
made that any requirement of 14.629 is no longer met by an agent,
attorney, or representative.
(c) Accreditation shall be canceled when the General Counsel finds,
by clear and convincing evidence, one of the following:
(1) Violation of or refusal to comply with the laws administered by
the Department of Veterans Affairs or with the regulations governing
practice before the Department of Veterans Affairs;
(2) Knowingly presenting or prosecuting a fraudulent claim against
the United States, or knowingly providing false information to the
United States;
(3) Demanding or accepting unlawful compensation for preparing,
presenting, prosecuting, or advising or consulting, concerning a claim;
(4) Any other unlawful, unprofessional, or unethical practice.
(Unlawful, unprofessional, or unethical practice shall include but not
be limited to the following -- deceiving, misleading or threatening a
claimant or prospective claimant; neglecting to prosecute a claim for 6
months or more; failing to furnish a reasonable response within 90 days
of request for evidence by the Department of Veterans Affairs, or
willfully withholding an application for benefits.)
(d) Accreditation shall be canceled when the General Counsel finds an
agent's, attorney's, or representative's performance before the
Department of Veterans Affairs demonstrates a lack of the degree of
competence necessary to adequately prepare, present, and prosecute
claims for veteran's benefits.
(e) As to cancellation of accreditation under paragraphs (b), (c) or
(d) of this section, upon receipt of information from any source
indicating failure to meet the requirements of 14.629, improper
conduct, or incompetence, the District Counsel of jurisdiction shall
initiate an inquiry into the matter. If the matter involves an
accredited representative of a recognized organization, this inquiry
shall include contact with the representative's organization.
(1) If the result of the inquiry does not justify further action, the
District Counsel will close the inquiry and maintain the record for 3
years.
(2) If the result of the inquiry justifies further action, the
District Counsel shall take the following action:
(i) As to representatives, suspend accreditation immediately and
notify the representative and the representative's organization of the
suspension and of an intent to cancel accreditation. The notice to the
representative will also state the reasons for the suspension and
impending cancellation, and inform the representative of a right to
request a hearing on the matter or to submit additional evidence within
10 working days following receipt of such notice. Such time may be
extended for a reasonable period upon a showing of sufficient cause.
(ii) As to agents or attorneys, inform the General Counsel of the
result of the inquiry and notify the agent or attorney of an intent to
cancel accreditation. The notice will also state the reason(s) for the
impending cancellation and inform the party of a right to request a
hearing on the matter or to submit additional evidence within 10 working
days of receipt of such notice. Such time may be extended for a
reasonable period upon a showing of sufficient cause.
(iii) In the event that a hearing is not requested, the District
Counsel shall forward the record to the General Counsel for final
determination.
(f) If a hearing is requested, a hearing officer will be appointed by
the Director of the regional office involved. The hearing officer shall
not be from the Office of the District Counsel. The hearing officer
will have authority to administer oaths. A member of the District
Counsel's office will present the evidence. The party requesting the
hearing will have a right to counsel, to present evidence, and to
cross-examine witnesses. Upon request of the party requesting the
hearing, an appropriate Department of Veterans Affairs official
designated in 2.1 of this chapter may issue subpoenas to compel the
attendance of witnesses and the production of documents necessary for a
fair hearing. The hearing shall be conducted in an informal manner and
court rules of evidence shall not apply. Testimony shall be recorded
verbatim. The hearing officer shall submit the entire hearing
transcript, any pertinent records or information, and a recommended
finding to the District Counsel within 10 working days after the close
of the hearing. The District Counsel will immediately forward the
entire record to the General Counsel for decision.
(g) The decision of the General Counsel is final. The effective date
for termination of accreditation shall be the date upon which a final
decision is rendered. The records of the case will be maintained in the
General Counsel's office for 3 years.
(Authority: 38 U.S.C. 501, 5902, 5904)
(53 FR 52422, Dec. 28, 1988)
38 CFR 14.634 Banks or trust companies acting as guardians.
Banks or trust companies, corporate entities, acting as guardians for
claimants, may be represented before adjudicating agencies as authorized
representatives of claimants by an officer or employee, including a
regularly employed attorney, if the employee or attorney represents the
corporation in its fiduciary capacity.
(Authority: 38 U.S.C. 5903, 5904)
(43 FR 46535 -- 46537, Oct. 10, 1978. Redesignated and amended at 57
FR 4104, Feb. 3, 1992)
Cross-References: Payment of Representative's Fees in Proceedings
Before Department of Veterans Affairs Personnel and Before the Board of
Veterans' Appeals. See 20.609 of this chapter. Payment of
Representative's Expenses in Proceedings Before Department of Veterans
Affairs Personnel and Before the Board of Veterans' Appeals. See
20.610 of this chapter.
38 CFR 14.635 Office space and facilities.
The Secretary may furnish office space and facilities, if available,
for the use of paid full-time representatives of recognized national
organizations, and for employees of recognized State organizations who
are accredited to national organizations, for purposes of assisting
veterans in the preparation, presentation, and prosecution of claims for
veterans' benefits.
(a) Request for office space should be made by an appropriate
official of the organization to the Director of the Department of
Veterans Affairs facility in which space is desired and should set
forth:
(1) The number of full-time paid representatives who will be
permanently assigned to the office;
(2) The number of secretarial or other support staff who will be
assigned to the office;
(3) The number of claimants for whom the organization holds powers of
attorney whose claims are within the jurisdiction of the facility or who
reside in the area served by the facility, the number of such claimants
whose claims are pending, and the number of claims prosecuted during the
previous three years; and
(4) Any other information the organization deems relevant to the
allocation of office space.
(b) When in the judgment of the Director office space and facilities
previously granted could be better used by the Department of Veterans
Affairs, or would receive more effective use or serve more claimants if
allocated to another recognized national organization, the Director may
withdraw such space or resign such space to another organization. In
the case of a facility under control of the Veterans Benefits
Administration, the final decision on such matters will be made by the
Chief Benefits Director.
(Authority: 38 U.S.C. 5902)
(53 FR 52423, Dec. 28, 1988. Redesignated and amended at 57 FR 4104,
Feb. 3, 1992)
Cross-References: Payment of Representative's Fees in Proceedings
Before Department of Veterans Affairs Personnel and Before the Board of
Veterans' Appeals. See 20.609 of this chapter. Payment of
Representative's Expenses in Proceedings Before Department of Veterans
Affairs Personnel and Before the Board of Veterans' Appeals. See
20.610 of this chapter.
38 CFR 14.635 Personnel Claims
38 CFR 14.664 Scope of authority and effective date.
Pub. L. 88-558 (78 Stat. 767), approved August 31, 1964, as amended,
authorizes the Secretary or the Secretary's designee to settle and pay a
claim for not more than $40,000 made by a civilian officer or employee
of the Department of Veterans Affairs for damage to, or loss of personal
property incident to such person's service. Authority is delegated by
2.6(e)(5) of this chapter to the General Counsel, Deputy General
Counsel, Assistant General Counsel (Professional Staff Group III), and
the Deputy Assistant General Counsel, of said staff group and the
District Counsel and those acting for them to settle and pay such claims
on behalf of the Secretary, and such settlement shall be final and
conclusive.
(Authority: 31 U.S.C. 3721(b))
(42 FR 41421, Aug. 17, 1977, as amended at 49 FR 47005, Nov. 30,
1984; 55 FR 48841, Nov. 23, 1990)
38 CFR 14.665 Claims.
(a) The claim must be presented in writing on VA Form 2-4760,
Employee's Claim for Reimbursement for Personal Property Damaged or Lost
Incident to Employment. It will be submitted to the personnel office
where the claim originates within 2 years after it accrues except that
if the claim accrues in time of war or in time of armed conflict in
which any Armed Force of the United States is engaged or if such war or
armed conflict intervenes within 2 years after it accrues, and if good
cause is shown, the claim may be presented not later than 2 years after
that cause ceases to exist. The claim must be executed and certified by
the officer or the employee suffering the loss or damage, or in the
event of his or her death, by the surviving spouse, children, father or
mother or both, or brothers or sisters or both. Claims of survivors
shall be settled and paid in the order named. All claims must contain
the following:
(1) The date, time, and place the loss or damage occurred and the
circumstances surrounding such loss or damage, together with the
supporting statements of any witnesses who can verify such facts.
(2) In the event of damage, the date of acquisition, original cost,
condition before damage, and at least two estimates of the cost of
repair or replacement. In the event of loss, the date of acquisition,
the original cost, the condition, and an estimate of the reasonable
market value of the article or articles.
(3) A statement as to any claims or potential claim he or she may
have for indemnification of the loss or damage against other than the
United States and whether he or she will assign such to the United
States and cooperate in its prosecution. Where such claim or potential
claim is against a carrier or insurer, evidence that a timely claim has
been properly made. Where a recovery from the carrier or his or her
insurer has been obtained or offered, such information shall be
included.
(4) In cases involving damage or destruction of personal property by
patients or domiciliary members, a statement as to whether a claim was
filed pursuant to 38 U.S.C. 703(a)(5) and whether such claim has been
finally denied.
(b) The Personnel Officer receiving the claim will forward same to
the person designated to investigate accidents at the station pursuant
to 14.605 within 5 days after receipt.
(c) The employee designated pursuant to 14.605 will ascertain if
such claim is complete in all respects and conduct such investigation as
is necessary to establish all facts required to properly evaluate the
claim both as to merit and the reasonable amount payable for the loss or
damage. Where it is indicated that the claimant may have a potential
claim against other than the United States, the employee designated will
secure a suitable assignment of all right and title to such claim, to
the extent the United States makes reimbursement, and the agreement of
the claimant to furnish such evidence as may be necessary to pursue such
claim. If the potential claim is against a carrier or insurer, the
employee designated will ascertain that the claimant has filed a timely
proper claim and procure evidence thereof. The employee designated will
also include information concerning any offer of settlement the carrier
may have made. The completed investigation, original claim and
supporting evidence will be forwarded to the appropriate District
Counsel.
(38 FR 5475, Mar. 1, 1973, as amended at 42 FR 41421, Aug. 17, 1977)
38 CFR 14.666 District Counsel responsibility.
(a) The District Counsel having jurisdiction will conduct such
additional investigation as is deemed necessary to establish all facts
required. If the claimant has a potential claim for indemnification
against other than the United States, the District Counsel will
ascertain that a suitable assignment, legally enforceable, of all right
and title to such claim, to the extent the United States makes
reimbursement, and the agreement of the claimant to furnish such
evidence as may be necessary to pursue such claim is of record. If such
potential claim is against a carrier or insurer, the District Council
will ascertain that claimant has filed a timely proper claim against the
carrier or insurer and review same for legal sufficiency.
(b) The District Counsel having jurisdiction over a claim will not
authorize payment thereon unless the requirement of 14.664 through
14.667 are met. In determining the equitable value of a claim, the
depreciation schedule issued by the General Counsel will be used as a
guide.
(42 FR 41422, Aug. 17, 1977)
38 CFR 14.667 Claims payable.
(a) No claim shall be paid unless timely filed in proper form as
provided in 14.665 and the preponderance of the evidence establishes
that the loss or damage:
(1) Actually occurred and the amount claimed is reasonable,
(2) Was incident to the employee's service and his or her possession
of the property was reasonable, useful, or proper under the
circumstances,
(3) Did not occur at quarters occupied within the 50 States or the
District of Columbia that were not assigned to the claimant or otherwise
provided in kind by the United States.
(4) Was not caused wholly or partly by the negligent act of claimant,
the claimant's agent, or employee, and that the claimant has no right to
indemnification for the loss or damage from other than the United
States, except to the extent that the claimant assigns such right to the
United States and agrees to furnish evidence required to enable the
United States to enforce such right. In the event there is a right to
recovery for the loss or damage from a carrier or insurer the claimant
will be required to file a timely claim for such recovery before
consideration of the claim against the United States.
(b) No claim for the cost of repair or replacement of personal
property of employees damaged or destroyed by patients or domiciliary
members while such employees are engaged in the performance of official
duties shall be entertained under 14.664 through 14.667, unless claim
filed pursuant to 38 U.S.C. 703(a)(5) ( 17.78 of this chapter) has been
finally denied for the reason that such claim did not meet the criteria
established by that law.
(38 FR 5475, Mar. 1, 1973, as amended at 42 FR 41422, Aug. 17, 1977)
38 CFR 14.668 Disposition of claims.
(a) Disallowed claims. Claimants will be promptly notified of the
disallowance of a claim and the reasons therefor.
(b) Allowed claims -- (1) Reimbursement in kind. Where a claim is
allowed and it is determined to be to the advantage of the Government,
reimbursement will be made in kind. The official authorizing settlement
will request the Director, Supply Service, Veterans Health Services and
Research Administration, to procure the necessary article or articles
and deliver same to the claimant.
(2) Reimbursement by check. The official authorizing settlement will
forward allowed claims, other than those requiring reimbursement in
kind, to the Finance activity at the Department of Veterans Affairs
installation where the claim arose. That activity will audit the claim,
which if found proper for payment, will be scheduled on SF 1166, Voucher
and Schedule of Payments, and forwarded to the appropriate Regional
Disbursing Office for payment.
(38 FR 5475, Mar. 1, 1973, as amended at 42 FR 41422, Aug. 17, 1977)
38 CFR 14.669 Fees of agents or attorneys; penalty.
The Military Personnel and Civilian Employees' Claims Act of 1964
(Pub. L. 88-558; 78 Stat. 767) was amended by Pub. L. 89-185 (79 Stat.
789), on September 15, 1965, by adding a new section which provided that
no more than 10 percent of the amount paid in settlement of each
individual claim submitted and settled under the authority of the Act
shall be paid or delivered to or received by any agent or attorney on
account of services rendered in connection with that claim. Any person
violating the provisions of this Act is deemed to be guilty of a
misdemeanor and upon conviction thereof shall be fined in any sum not
exceeding $1,000.
(38 FR 5475, Mar. 1, 1973)
38 CFR 14.669 Commitments -- Fiduciaries
Source: Sections 14.700 to 14.709 appear at 42 FR 41422, Aug. 17,
1977, unless otherwise noted.
38 CFR 14.700 Court cost and expenses; commitment, restoration,
fiduciary appointments.
It is the responsibility of the District Counsel to assure the
protection of the veteran, his or her beneficiaries, and their estates
in State court proceedings involving commitment and restoration, and the
appointment of fiduciaries. To this end certain expenses such as court
costs, publication fees, recording fees, transportation expenses and
fees for medical testimony may be authorized by the District Counsel.
Payment of these costs will be borne by the administration concerned.
However, every effort will be made by the District Counsel to avoid
having these costs imposed on the Department of Veterans Affairs. The
travel and per diem cost of the District Counsel personnel will be borne
by the District Counsel.
38 CFR 14.701 Commitment and restoration proceedings.
(a) State institutions. District Counsels are authorized to
cooperate with State courts, including the production of required
records in the commitment of veterans to State hospitals or in their
restoration to full civil rights.
(b) Department of Veterans Affairs institutions -- (1) Assistance to
courts in commitment proceedings. The District Counsel will render
assistance to the courts in cases involving the commitment of mentally
ill veterans to the Department of Veterans Affairs. To this end, the
District Counsel may:
(i) Produce Department of Veterans Affairs records.
(ii) Appear in court and present material facts.
(iii) When authorized to institute commitment proceedings under
paragraph (b)(2) of this section, prepare and present all necessary
legal papers, and arrange and authorize transportation costs of veterans
and attendants at Department of Veterans Affairs expense ( 14.703 and
14.704).
(2) Commitment proceedings. If a mentally ill veteran will accept
hospitalization voluntarily, no action will be initiated by any
Department of Veterans Affairs employee to commit such veteran. If the
veteran will not accept hospitalization, or after being voluntarily
hospitalized by the Department of Veterans Affairs demands his or her
release, and hospitalization is necessary for the veteran's safety or
the safety of others, the District Counsel (if a relative of the veteran
or other interested person has not done so) may institute proceedings to
commit the veteran to the Department of Veterans Affairs subject to the
following conditions:
(i) That the written consent of the veteran's nearest relative has
been obtained. If the nearest relative cannot be readily contacted or
refuses to consent, coupled with inability or refusal to offer adequate
alternative care, the District Counsel may initiate the action if the
petition is signed by another relative, a civil official or
representative of a cooperating agency or other person authorized by
State law.
(ii) If timely action cannot be taken under paragraph (b)(2)(i) of
this section, the Hospital or Clinic Director, or designee, may sign the
petition if permissible under State law, and the District Counsel will
then take any action necessary to bring the matter before the
appropriate court.
(3) Illegal commitment. When a hospitalized veteran, previously
committed to the Department of Veterans Affairs, demands release and
continued hospitalization is necessary for the veteran's safety or the
safety of others, and the District Counsel determines the commitment to
be illegal, immediate action will be taken to obtain a legal commitment.
(4) Restoration proceedings. When a veteran has been a committed
patient in a Department of Veterans Affairs hospital and is subsequently
rated competent by the Department of Veterans Affairs, the District
Counsel upon request, may institute proceedings necessary to restore the
veteran to full civil rights.
38 CFR 14.702 Medical testimony in commitment or restoration
proceedings.
(a) Commitment. When permissable under State law, Department of
Veterans Affairs physicans, upon request of the District Counsel, will
sign interrogatories or certificates of mental illness or insanity and,
unless unavailable, as provided in paragraph (c) of this section, will
testify in proceedings which the District Counsel is authorized to
institute under 14.701 to commit eligible veterans to the Department of
Veterans Affairs.
(b) Restoration. (1) When permissible under State law, Department of
Veterans Affairs physicans, upon the request of the District Counsel,
will testify in proceedings brought for the purpose of restoring a
committed veteran to full civil rights when the veteran is a committed
patient in a Department of Veterans Affairs hospital.
(2) The Director of a Department of Veterans Affairs hospital or the
District Counsel upon discharge of the veteran, may furnish a
certificate of sanity or such similar certificate to the proper civil
authorities.
(c) Employment of private physicians. When testimony of Department
of Veterans Affairs physicians is prohibited or is unavailable because
of a duty assignment, comparative expense or other valid reason, the
Director of the Department of Veterans Affairs hospital, upon
recommendation of the District Counsel, may employ any qualified
physician for preliminary examination of the veteran and for testimony
in any commitment or restoration proceeding which the District Counsel
is authorized to institute under 14.701, and authorize the payment of a
fee not to exceed the prescribed fee, or in the absence thereof, the
customary fee charged for the service rendered.
38 CFR 14.703 Costs in commitment or restoration proceedings.
(a) When authorized to institute a proceeding under 14.701, the
District Counsel may authorize in advance or thereafter the payment or
reimbursement of costs and other expenses for which the veteran is
legally liable, including publication of notice necessary to accomplish
the commitment.
(b) The District Counsel also may authorize the payment of necessary
costs and expenses for which the veteran is legally liable incident to
his or her restoration to full civil rights in any case in which the
District Counsel ia authorized to institute restoration proceedings
under 14.701(b)(4).
38 CFR 14.704 Authorization of transportation necessary for commitment
of a veteran beneficiary.
When a mentally ill veteran who should be committed is hospitalized
by the Department of Veterans Affairs and under the law of the State
wherein the hospital is located, a commitment may not be had locally,
the veteran may be returned temporarily to the jurisdiction of the
appropriate court in order that the commitment can be accomplished. If
the veteran is in a Department of Veterans Affairs hospital, the
Hospital Director may authorize travel of the veteran and an attendant
or attendants, if necessary, upon request of the District Counsel. If
the veteran is being maintained in a non-Department of Veterans Affairs
hospital, the Director of the facility authorizing and paying for the
care may authorize such travel upon request of the District Counsel.
38 CFR 14.705 Authority to file petitions for appointment of
fiduciaries in State courts.
(a) Adult beneficiary. The District Counsel is authorized to file or
cause to be filed on behalf of a petitioner in a case coming within
14.706(a) a petition for the appointment of a fiduciary and all
necessary legal papers for an adult beneficiary only if it has been
determined that alternative methods of payment would not be to the best
interests of the beneficiary and when the District Counsel has obtained
the written consent of:
(1) The beneficiary's spouse.
(2) The beneficiary's adult child, parent, adult brother or sister if
the beneficiary is unmarried, or consent of the spouse is immaterial
because of estrangement or mental incapacity, or refusal to consent
coupled with failure to offer adequate alternative means for providing
for the beneficiary's needs.
(3) A civil official or representative of a cooperating agency when
none of the relative listed in paragraph (a) (1) and (2) of this section
can be located after reasonable inquiry or those located are not
mentally competent to consent or refuse without offering adequate
alternative means for providing for the needs of the beneficiary.
(b) Minor beneficiaries. The District Counsel is authorized to file
or cause to be filed on behalf of a petitioner in a case coming within
14.706(a) a petition for the appointment of a fiduciary for a minor. If
permissible under the law of the jurisdiction concerned and if it has
been determined that protection of the minor's rights under laws
administered by the Department of Veterans Affairs requires the
appointment, provided: the written consent of the minor's natural or
adoptive parent or parents or the person or persons occupying the
relationship of ''in loco parentis'' as defined, by the law of the
jurisdiction, in which they reside has been obtained. The District
Counsel will not institute a court proceeding for the appointment of a
fiduciary over the objections of such parent or parents if they are sui
juris unless the parent or parents have abandoned the minor or have
otherwise refused to meet their parental obligations toward the minor or
they have previously been appointed or recognized as the minor's
fiduciary and failed to properly execute the duties of their trust. If
the minor has no parent or the parent or parents are not sui juris, the
District Counsel may file the petition without the consent of any
relative.
(c) Court-appointed fiduciaries. In court-appointed fiduciary cases,
the District Counsel may appear in the court of appointment or in any
court having original, concurrent, or appellate jurisdiction, and make
proper presentation relating to the foregoing matters. The Distrtict
Counsel's authority includes by is not limited to:
(1) Petitioning the court to cite a fiduciary to account;
(2) Filing exceptions to accountings;
(3) Requiring fiduciaries to file bonds or make any necessary
adjustments;
(4) Requiring investments;
(5) Filing petitions to vacate or modify court orders;
(6) Appearing or intervening in any State court as attorney for the
Secretary of Veterans Affairs in litigation instituted by the Secretary
or otherwise affecting money paid to such fiduciary by the Department of
Veterans Affairs;
(7) Incurring necessary court costs and other expenses, including
witness fees, appeal bonds, advertising in any newspaper or other
publication, preparing briefs or transcripts, purchase of records of
trial or other records;
(8) Instituting any other action necessary to secure proper
administration of the estate of a Department of Veterans Affairs
beneficiary, such as filing petitions for the removal of a fiduciary and
appointment of a successor;
(9) Taking appropriate action to recover funds improperly disbursed.
(d) Appeal. Unless a trial is de novo, no appeal shall be taken to
an appellate court and no costs incurred in connection therewith without
the prior approval of the General Counsel and the Chief Benefits
Director or their designees.
38 CFR 14.706 Legal services in behalf of beneficiaries.
(a) The District Counsel may furnish legal services in behalf of
minor and incompetent beneficiaries of the Department of Veterans
Affairs in fiduciary appointment and estate administration matters
involving Department of Veterans Affairs benefits or property derived
therefrom when the beneficiary's estate or income is not sufficient to
justify the employment of an attorney.
(b) The District Counsel may also furnish legal services in hardship
situations when restoration from legal disability is a condition of
precedent to direct payment of Department of Veterans Affairs benefits.
(c) Where the fiduciary does not in due course institute the
necessary action to terminate the trust relationship and the beneficiary
requests representation by the District Counsel or in any such case
where there is in question the proper administration of the estate, the
District Counsel may file the necessary action and supply legal
services. Costs, unless assessed against the fiduciary, should be
charged to the estate of the beneficiary.
38 CFR 14.707 Authorization of transportation of a veteran beneficiary
for appointment of a fiduciary.
When the appointment of a fiduciary is required for an incompetent
veteran hospitalized by the Department of Veterans Affairs and, under
the law of the State wherein the hospital is located, the appointment
cannot be had locally, the veteran may be returned temporarily to the
jurisdiction of the appropriate court in order that the appointment can
be accomplished. If the veteran is in a Department of Veterans Affairs
hospital, the Hospital Director, upon request of the District Counsel,
may authorize travel of the veteran and an attendant or attendants, if
necessary. If the veteran is being maintained in a non-Department of
Veterans Affairs hospital, the Director of the facility authorizing and
paying for the care may authorize such travel upon request of the
District Counsel.
38 CFR 14.708 Costs and other expenses incident to appointment of
fiduciary.
(a) The District Counsel may authorize the payment of costs and other
necessary expenses incident to the appointment of an initial or
successor fiduciary for a Department of Veterans Affairs beneficiary
when:
(1) Authorized to render legal services under 14.706.
(2) Appointment was caused by the Department of Veterans Affairs and
it develops that no benefits are payable and there is no estate from
which costs may be paid.
(3) Costs must be advanced when there is no immediate estate from
which same may be paid. These costs are to be recovered from benefits
payable unless the case falls within paragraph (a)(1) of this section.
(b) Costs and necessary expenses include:
(1) All those chargeable by statute or rule of court and certified by
the clerk of court.
(2) Certified copies of court records required by the Department of
Veterans Affairs.
(3) Fees for guardian ad litem when chargeable as court costs and
required by State law.
38 CFR 14.709 Surety bonds; court-appointed fiduciary.
(a) It is the policy of the Department of Veterans Affairs to
require, where possible under State laws and rules of the court,
corporate surety bonds in all court-appointed fiduciary cases where the
fiduciary is an individual and the estate is sufficient to justify the
expense of procuring a corporate surety bond. Corporate bonds may be
required of corporate fiduciaries in accordance with State laws. In
cases wherein fiduciaries neglect or refuse to furnish corporate bonds,
as requested by the District Counsel, the District Counsel should take
appropriate court action and notify the Veterans Services Officer.
(b) When it is not practical or feasible to require a fiduciary to
furnish a corporate surety bond, the District Counsel is authorized to
accept bonds with such number of personal sureties as is permissible
under State law, but in no event less than one. To be acceptable for
Department of Veterans Affairs purposes, each personal surety must be
worth at least the penal sum named in the bond over and above all debts,
liabilities and exemptions and qualify in accordance with the
requirements of State law. The District Counsel will request suitable
evidence of financial responsibility whenever there is any question as
to the ability of a personal surety to meet any probable liability.
When suitable evidence is not furnished as requested, or financial
responsibility is found to be insufficient to meet the penal sum of the
bond, the District Counsel should take appropriate court action and
notify the Veterans Services Officer.
(c) It is the policy of the Department of Veterans Affairs to require
surety bonds in an amount commensurate with value of the personal estate
derived from Department of Veterans Affairs benefits plus the
anticipated net income from Department of Veterans Affairs benefits
received during the ensuing accounting period. In cases where the
fiduciaries neglect or refuse to furnish surety bonds in the amount
requested by the District Counsel, the District Counsel should take
appropriate court action and notify the Veterans Service Officer. When
permissible under State law, the District Counsel may accept, without
objection, a lesser degree of protection approved by the court when it
is determined that such action will adequately protect the beneficiary's
estate.
38 CFR 14.709 PART 15 -- ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS
OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE DEPARTMENT OF
VETERANS AFFAIRS
Sec.
15.101 Purpose.
15.102 Application.
15.103 Definitions.
15.104 -- 15.109 (Reserved)
15.110 Self-evaluation.
15.111 Notice.
15.112 -- 15.129 (Reserved)
15.130 General prohibitions against discrimination.
15.131 -- 15.139 (Reserved)
15.140 Employment.
15.141 -- 15.148 (Reserved)
15.149 Program accessibility: Discrimination prohibited.
15.150 Program accessibility: Existing facilities.
15.151 Program accessibility: New construction and alterations.
15.152 -- 15.159 (Reserved)
15.160 Communications.
15.161 -- 15.169 (Reserved)
15.170 Compliance procedures.
15.171 -- 15.999 (Reserved)
Authority: 29 U.S.C. 794.
Source: 53 FR 25885, July 8, 1988, unless otherwise noted.
38 CFR 15.101 Purpose.
The purpose of this regulation is to effectuate section 119 of the
Rehabilitation, Comprehensive Services, and Developmental Disabilities
Amendments of 1978, which amended section 504 of the Rehabilitation Act
of 1973 to prohibit discrimination on the basis of handicap in programs
or activities conducted by Executive agencies or the United States
Postal Service.
38 CFR 15.102 Application.
This regulation ( 15.101-15.170) applies to all programs or
activities conducted by the agency, except for programs or activities
conducted outside the United States that do not involve individuals with
handicaps in the United States.
38 CFR 15.103 Definitions.
For purposes of this regulation, the term --
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, Brailled materials,
audio recordings, and other similar services and devices. Auxiliary
aids useful for persons with impaired hearing include telephone handset
amplifiers, telephones compatible with hearing aids, telecommunication
devices for deaf persons (TDD's), interpreters, notetakers, written
materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties
shall describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Historic preservation programs means programs conducted by the agency
that have preservation of historic properties as a primary purpose.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes --
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addiction and
alcoholism.
(2) Major life activities includes functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or has
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means --
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Qualified individual with handicaps means --
(1) With respect to preschool, elementary, or secondary education
services provided by the agency, an individual with handicaps who is a
member of a class of persons otherwise entitled by statute, regulation,
or agency policy to receive education services from the agency;
(2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
agency can demonstrate would result in a fundamental alteration in its
nature;
(3) With respect to any other program or activity, an individual with
handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(4) Qualified handicapped person as that term is defined for purposes
of employment in 29 CFR 1613.702(f), which is made applicable to this
regulation by 15.140.
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub.
L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and
the Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat.
1810). As used in this regulation, section 504 applies only to programs
or activities conducted by Executive agencies and not to federally
assisted programs.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
15.104 -- 15.109 (Reserved)
38 CFR 15.110 Self-evaluation.
(a) The agency shall, by September 6, 1989, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this regulation and, to the extent modification
of any such policies and practices is required, the agency shall proceed
to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons,
including individuals with handicaps or organizations representing
individuals with handicaps, to participate in the self-evaluation
process by submitting comments (both oral and written).
(c) The agency shall, for at least three years following completion
of the self-evaluation, maintain on file and make available for public
inspection:
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
38 CFR 15.111 Notice.
The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this regulation and its
applicability to the programs or activities conducted by the agency, and
make such information available to them in such manner as the head of
the agency finds necessary to apprise such persons of the protections
against discrimination assured them by section 504 and this regulation.
15.112 -- 15.129 (Reserved)
38 CFR 15.130 General prohibitions against discrimination.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap --
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards;
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified individual with handicaps the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would --
(i) Subject qualified individuals with handicaps to discrimination on
the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would --
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified individuals with handicaps
to discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified individuals with handicaps to
discrimination on the basis of handicap. However, the programs or
activities of entities that are licensed or certified by the agency are
not, themselves, covered by this regulation.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this regulation.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified individuals
with handicaps.
15.131 -- 15.139 (Reserved)
38 CFR 15.140 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subject to discrimination in employment under any program
or activity conducted by the agency. The definitions, requirements, and
procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C.
791), as established by the Equal Employment Opportunity Commission in
29 CFR part 1613, shall apply to employment in federally conducted
programs or activities.
15.141 -- 15.148 (Reserved)
38 CFR 15.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in 15.150, no qualified individual with
handicaps shall, because the agency's facilities are inaccessible to or
unusable by individuals with handicaps, be denied the benefits of, be
excluded from participation in, or otherwise be subjected to
discrimination under any program or activity conducted by the agency.
38 CFR 15.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not --
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by individuals with handicaps;
(2) In the case of historic preservation programs, require the agency
to take any action that would result in a substantial impairment of
significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with 15.150(a) would result in such alteration
or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
individuals with handicaps receive the benefits and services of the
program or activity.
(b) Methods -- (1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by individuals with handicaps. The agency is
not required to make structural changes in existing facilities where
other methods are effective in achieving compliance with this section.
The agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give priority
to those methods that offer programs and activities to qualified
individuals with handicaps in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of
15.150(a) in historic preservation programs, the agency shall give
priority to methods that provide physical access to individuals with
handicaps. In cases where a physical alteration to an historic property
is not required because of 15.150(a)(2) or (3), alternative methods of
achieving program accessibility include --
(i) Using audio-visual materials and devices to depict those portions
of an historic property that cannot otherwise be made accessible;
(ii) Assigning persons to guide individuals with handicaps into or
through portions of historic properties that cannot otherwise be made
accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by November 7, 1988, except
that where structural changes in facilities are undertaken, such changes
shall be made by September 6, 1991, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by March 6, 1989, a transition plan setting forth
the steps necessary to complete such changes. The agency shall provide
an opportunity to interested persons, including individuals with
handicaps or organizations representing individuals with handicaps, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall
be made available for public inspection. The plan shall, at a minimum
--
(1) Identify physical obstacles in the agency's facilities that limit
the accessibility of its programs or activities to individuals with
handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
38 CFR 15.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as
established in 41 CFR 101-19.600 to 101-19.607, apply to buildings
covered by this section.
15.152 -- 15.159 (Reserved)
38 CFR 15.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
individual with handicaps.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf persons (TDD's) or
equally effective telecommunication systems shall be used to communicate
with persons with impaired hearing.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each of
its inaccessible facilities, directing users to a location at which they
can obtain information about accessible facilities. The international
symbol for accessibility shall be used at each primary entrance of an
accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with 15.160 would result in
such alteration or burdens. The decision that compliance would result
in such alteration or burdens must be made by the agency head or his or
her designee after considering all agency resources available for use in
the funding and operation of the conducted program or activity and must
be accompanied by a written statement of the reasons for reaching that
conclusion. If an action required to comply with this section would
result in such an alteration or such burdens, the agency shall take any
other action that would not result in such an alteration or such burdens
but would nevertheless ensure that, to the maximum extent possible,
individuals with handicaps receive the benefits and services of the
program or activity.
15.161 -- 15.169 (Reserved)
38 CFR 15.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this section
applies to all allegations of discrimination on the basis of handicap in
programs and activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Deputy Assistant Secretary for Equal Employment Opportunity
shall be responsible for coordinating implementation of this section.
Complaints may be sent to the Secretary of Veterans Affairs or the
Deputy Assistant Secretary for Equal Employment Opportunity at the
following address: Department of Veterans Affairs, 810 Vermont Avenue
NW., Washington, DC 20420.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate Government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to
and usable by individuals with handicaps.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing --
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by 15.170(g). The agency may extend
this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the
agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.
(53 FR 25885, July 8, 1988, as amended at 53 FR 25885, July 8, 1988;
54 FR 34982, Aug. 23, 1989)
15.171 -- 15.999 (Reserved)
38 CFR 15.170 PART 16 -- PROTECTION OF HUMAN SUBJECTS
Sec.
16.101 To what does this policy apply?
16.102 Definitions.
16.103 Assuring compliance with this policy -- research conducted or
supported by any Federal Department or Agency.
16.104 -- 16.106 (Reserved)
16.107 IRB membership.
16.108 IRB functions and operations.
16.109 IRB review of research.
16.110 Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in approved
research.
16.111 Criteria for IRB approval of research.
16.112 Review by institution.
16.113 Suspension or termination of IRB approval of research.
16.114 Cooperative research.
16.115 IRB records.
16.116 General requirements for informed consent.
16.117 Documentation of informed consent.
16.118 Applications and proposals lacking definite plans for
involvement of human subjects.
16.119 Research undertaken without the intention of involving human
subjects.
16.120 Evaluation and disposition of applications and proposals for
research to be conducted or supported by a Federal Department or Agency.
16.121 (Reserved)
16.122 Use of Federal funds.
16.123 Early termination of research support: Evaluation of
applications and proposals.
16.124 Conditions.
Authority: 5 U.S.C. 301; 38 U.S.C. 501, 7331, 7334; 42 U.S.C.
300v-1(b).
Source: 56 FR 28012, 28021, June 18, 1991, unless otherwise noted.
38 CFR 16.101 To what does this policy apply?
(a) Except as provided in paragraph (b) of this section, this policy
applies to all research involving human subjects conducted, supported or
otherwise subject to regulation by any federal department or agency
which takes appropriate administrative action to make the policy
applicable to such research. This includes research conducted by
federal civilian employees or military personnel, except that each
department or agency head may adopt such procedural modifications as may
be appropriate from an administrative standpoint. It also includes
research conducted, supported, or otherwise subject to regulation by the
federal government outside the United States.
(1) Research that is conducted or supported by a federal department
or agency, whether or not it is regulated as defined in 16.102(e), must
comply with all sections of this policy.
(2) Research that is neither conducted nor supported by a federal
department or agency but is subject to regulation as defined in
16.102(e) must be reviewed and approved, in compliance with 16.101,
16.102, and 16.107 through 16.117 of this policy, by an institutional
review board (IRB) that operates in accordance with the pertinent
requirements of this policy.
(b) Unless otherwise required by department or agency heads, research
activities in which the only involvement of human subjects will be in
one or more of the following categories are exempt from this policy:
(1) Research conducted in established or commonly accepted
educational settings, involving normal educational practices, such as
(i) research on regular and special education instructional strategies,
or (ii) research on the effectiveness of or the comparison among
instructional techniques, curricula, or classroom management methods.
(2) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures or observation of public behavior, unless:
(i) Information obtained is recorded in such a manner that human
subjects can be identified, directly or through identifiers linked to
the subjects; and (ii) any disclosure of the human subjects' responses
outside the research could reasonably place the subjects at risk of
criminal or civil liability or be damaging to the subjects' financial
standing, employability, or reputation.
(3) Research involving the use of educational tests (cognitive,
diagnostic, aptitude, achievement), survey procedures, interview
procedures, or observation of public behavior that is not exempt under
paragraph (b)(2) of this section, if:
(i) The human subjects are elected or appointed public officials or
candidates for public office; or (ii) federal statute(s) require(s)
without exception that the confidentiality of the personally
identifiable information will be maintained throughout the research and
thereafter.
(4) Research, involving the collection or study of existing data,
documents, records, pathological specimens, or diagnostic specimens, if
these sources are publicly available or if the information is recorded
by the investigator in such a manner that subjects cannot be identified,
directly or through identifiers linked to the subjects.
(5) Research and demonstration projects which are conducted by or
subject to the approval of department or agency heads, and which are
designed to study, evaluate, or otherwise examine:
(i) Public benefit or service programs; (ii) procedures for
obtaining benefits or services under those programs; (iii) possible
changes in or alternatives to those programs or procedures; or (iv)
possible changes in methods or levels of payment for benefits or
services under those programs.
(6) Taste and food quality evaluation and consumer acceptance
studies, (i) if wholesome foods without additives are consumed or (ii)
if a food is consumed that contains a food ingredient at or below the
level and for a use found to be safe, or agricultural chemical or
environmental contaminant at or below the level found to be safe, by the
Food and Drug Administration or approved by the Environmental Protection
Agency or the Food Safety and Inspection Service of the U.S. Department
of Agriculture.
(c) Department or agency heads retain final judgment as to whether a
particular activity is covered by this policy.
(d) Department or agency heads may require that specific research
activities or classes of research activities conducted, supported, or
otherwise subject to regulation by the department or agency but not
otherwise covered by this policy, comply with some or all of the
requirements of this policy.
(e) Compliance with this policy requires compliance with pertinent
federal laws or regulations which provide additional protections for
human subjects.
(f) This policy does not affect any state or local laws or
regulations which may otherwise be applicable and which provide
additional protections for human subjects.
(g) This policy does not affect any foreign laws or regulations which
may otherwise be applicable and which provide additional protections to
human subjects of research.
(h) When research covered by this policy takes place in foreign
countries, procedures normally followed in the foreign countries to
protect human subjects may differ from those set forth in this policy.
(An example is a foreign institution which complies with guidelines
consistent with the World Medical Assembly Declaration (Declaration of
Helsinki amended 1989) issued either by sovereign states or by an
organization whose function for the protection of human research
subjects is internationally recognized.) In these circumstances, if a
department or agency head determines that the procedures prescribed by
the institution afford protections that are at least equivalent to those
provided in this policy, the department or agency head may approve the
substitution of the foreign procedures in lieu of the procedural
requirements provided in this policy. Except when otherwise required by
statute, Executive Order, or the department or agency head, notices of
these actions as they occur will be published in the Federal Register or
will be otherwise published as provided in department or agency
procedures.
(i) Unless otherwise required by law, department or agency heads may
waive the applicability of some or all of the provisions of this policy
to specific research activities or classes of research activities
otherwise covered by this policy. Except when otherwise required by
statute or Executive Order, the department or agency head shall forward
advance notices of these actions to the Office for Protection from
Research Risks, Department of Health and Human Services (HHS), and shall
also publish them in the Federal Register or in such other manner as
provided in department or agency procedures. /1/
(56 FR 28012, 28021, June 18, 1991; 56 FR 29756, June 28, 1991)
/1/ Institutions with HHS-approved assurances on file will abide by
provisions of title 45 CFR part 46 subparts A-D. Some of the other
Departments and Agencies have incorporated all provisions of title 45
CFR part 46 into their policies and procedures as well. However, the
exemptions at 45 CFR 46.101(b) do not apply to research involving
prisoners, fetuses, pregnant women, or human in vitro fertilization,
subparts B and C. The exemption at 45 CFR 46.101(b)(2), for research
involving survey or interview procedures or observation of public
behavior, does not apply to research with children, subpart D, except
for research involving observations of public behavior when the
investigator(s) do not participate in the activities being observed.
38 CFR 16.102 Definitions.
(a) Department or agency head means the head of any federal
department or agency and any other officer or employee of any department
or agency to whom authority has been delegated.
(b) Institution means any public or private entity or agency
(including federal, state, and other agencies).
(c) Legally authorized representative means an individual or judicial
or other body authorized under applicable law to consent on behalf of a
prospective subject to the subject's participation in the procedure(s)
involved in the research.
(d) Research means a systematic investigation, including research
development, testing and evaluation, designed to develop or contribute
to generalizable knowledge. Activities which meet this definition
constitute research for purposes of this policy, whether or not they are
conducted or supported under a program which is considered research for
other purposes. For example, some demonstration and service programs
may include research activities.
(e) Research subject to regulation, and similar terms are intended to
encompass those research activities for which a federal department or
agency has specific responsibility for regulating as a research
activity, (for example, Investigational New Drug requirements
administered by the Food and Drug Administration). It does not include
research activities which are incidentally regulated by a federal
department or agency solely as part of the department's or agency's
broader responsibility to regulate certain types of activities whether
research or non-research in nature (for example, Wage and Hour
requirements administered by the Department of Labor).
(f) Human subject means a living individual about whom an
investigator (whether professional or student) conducting research
obtains
(1) Data through intervention or interaction with the individual, or
(2) Identifiable private information.
Intervention includes both physical procedures by which data are
gathered (for example, venipuncture) and manipulations of the subject or
the subject's environment that are performed for research purposes.
Interaction includes communication or interpersonal contact between
investigator and subject. ''Private information'' includes information
about behavior that occurs in a context in which an individual can
reasonably expect that no observation or recording is taking place, and
information which has been provided for specific purposes by an
individual and which the individual can reasonably expect will not be
made public (for example, a medical record). Private information must
be individually identifiable (i.e., the identity of the subject is or
may readily be ascertained by the investigator or associated with the
information) in order for obtaining the information to constitute
research involving human subjects.
(g) IRB means an institutional review board established in accord
with and for the purposes expressed in this policy.
(h) IRB approval means the determination of the IRB that the research
has been reviewed and may be conducted at an institution within the
constraints set forth by the IRB and by other institutional and federal
requirements.
(i) Minimal risk means that the probability and magnitude of harm or
discomfort anticipated in the research are not greater in and of
themselves than those ordinarily encountered in daily life or during the
performance of routine physical or psychological examinations or tests.
(j) Certification means the official notification by the institution
to the supporting department or agency, in accordance with the
requirements of this policy, that a research project or activity
involving human subjects has been reviewed and approved by an IRB in
accordance with an approved assurance.
38 CFR 16.103 Assuring compliance with this policy -- research
conducted or supported by any Federal Department or Agency.
(a) Each institution engaged in research which is covered by this
policy and which is conducted or supported by a federal department or
agency shall provide written assurance satisfactory to the department or
agency head that it will comply with the requirements set forth in this
policy. In lieu of requiring submission of an assurance, individual
department or agency heads shall accept the existence of a current
assurance, appropriate for the research in question, on file with the
Office for Protection from Research Risks, HHS, and approved for
federalwide use by that office. When the existence of an HHS-approved
assurance is accepted in lieu of requiring submission of an assurance,
reports (except certification) required by this policy to be made to
department and agency heads shall also be made to the Office for
Protection from Research Risks, HHS.
(b) Departments and agencies will conduct or support research covered
by this policy only if the institution has an assurance approved as
provided in this section, and only if the institution has certified to
the department or agency head that the research has been reviewed and
approved by an IRB provided for in the assurance, and will be subject to
continuing review by the IRB. Assurances applicable to federally
supported or conducted research shall at a minimum include:
(1) A statement of principles governing the institution in the
discharge of its responsibilities for protecting the rights and welfare
of human subjects of research conducted at or sponsored by the
institution, regardless of whether the research is subject to federal
regulation. This may include an appropriate existing code, declaration,
or statement of ethical principles, or a statement formulated by the
institution itself. This requirement does not preempt provisions of
this policy applicable to department- or agency-supported or regulated
research and need not be applicable to any research exempted or waived
under 16.101 (b) or (i).
(2) Designation of one or more IRBs established in accordance with
the requirements of this policy, and for which provisions are made for
meeting space and sufficient staff to support the IRB's review and
recordkeeping duties.
(3) A list of IRB members identified by name; earned degrees;
representative capacity; indications of experience such as board
certifications, licenses, etc., sufficient to describe each member's
chief anticipated contributions to IRB deliberations; and any
employment or other relationship between each member and the
institution; for example: full-time employee, part-time employee,
member of governing panel or board, stockholder, paid or unpaid
consultant. Changes in IRB membership shall be reported to the
department or agency head, unless in accord with 16.103(a) of this
policy, the existence of an HHS-approved assurance is accepted. In this
case, change in IRB membership shall be reported to the Office for
Protection from Research Risks, HHS.
(4) Written procedures which the IRB will follow (i) for conducting
its initial and continuing review of research and for reporting its
findings and actions to the investigator and the institution; (ii) for
determining which projects require review more often than annually and
which projects need verification from sources other than the
investigators that no material changes have occurred since previous IRB
review; and (iii) for ensuring prompt reporting to the IRB of proposed
changes in a research activity, and for ensuring that such changes in
approved research, during the period for which IRB approval has already
been given, may not be initiated without IRB review and approval except
when necessary to eliminate apparent immediate hazards to the subject.
(5) Written procedures for ensuring prompt reporting to the IRB,
appropriate institutional officials, and the department or agency head
of (i) any unanticipated problems involving risks to subjects or others
or any serious or continuing noncompliance with this policy or the
requirements or determinations of the IRB and (ii) any suspension or
termination of IRB approval.
(c) The assurance shall be executed by an individual authorized to
act for the institution and to assume on behalf of the institution the
obligations imposed by this policy and shall be filed in such form and
manner as the department or agency head prescribes.
(d) The department or agency head will evaluate all assurances
submitted in accordance with this policy through such officers and
employees of the department or agency and such experts or consultants
engaged for this purpose as the department or agency head determines to
be appropriate. The department or agency head's evaluation will take
into consideration the adequacy of the proposed IRB in light of the
anticipated scope of the institution's research activities and the types
of subject populations likely to be involved, the appropriateness of the
proposed initial and continuing review procedures in light of the
probable risks, and the size and complexity of the institution.
(e) On the basis of this evaluation, the department or agency head
may approve or disapprove the assurance, or enter into negotiations to
develop an approvable one. The department or agency head may limit the
period during which any particular approved assurance or class of
approved assurances shall remain effective or otherwise condition or
restrict approval.
(f) Certification is required when the research is supported by a
federal department or agency and not otherwise exempted or waived under
16.101 (b) or (i). An institution with an approved assurance shall
certify that each application or proposal for research covered by the
assurance and by 16.103 of this Policy has been reviewed and approved
by the IRB. Such certification must be submitted with the application
or proposal or by such later date as may be prescribed by the department
or agency to which the application or proposal is submitted. Under no
condition shall research covered by 16.103 of the Policy be supported
prior to receipt of the certification that the research has been
reviewed and approved by the IRB. Institutions without an approved
assurance covering the research shall certify within 30 days after
receipt of a request for such a certification from the department or
agency, that the application or proposal has been approved by the IRB.
If the certification is not submitted within these time limits, the
application or proposal may be returned to the institution.
(Approved by the Office of Management and Budget under control number
9999-0020)
(56 FR 28012, 28021, June 18, 1991; 56 FR 29756, June 28, 1991)
16.104 -- 16.106 (Reserved)
38 CFR 16.107 IRB membership.
(a) Each IRB shall have at least five members, with varying
backgrounds to promote complete and adequate review of research
activities commonly conducted by the institution. The IRB shall be
sufficiently qualified through the experience and expertise of its
members, and the diversity of the members, including consideration of
race, gender, and cultural backgrounds and sensitivity to such issues as
community attitudes, to promote respect for its advice and counsel in
safeguarding the rights and welfare of human subjects. In addition to
possessing the professional competence necessary to review specific
research activities, the IRB shall be able to ascertain the
acceptability of proposed research in terms of institutional commitments
and regulations, applicable law, and standards of professional conduct
and practice. The IRB shall therefore include persons knowledgeable in
these areas. If an IRB regularly reviews research that involves a
vulnerable category of subjects, such as children, prisoners, pregnant
women, or handicapped or mentally disabled persons, consideration shall
be given to the inclusion of one or more individuals who are
knowledgeable about and experienced in working with these subjects.
(b) Every nondiscriminatory effort will be made to ensure that no IRB
consists entirely of men or entirely of women, including the
institution's consideration of qualified persons of both sexes, so long
as no selection is made to the IRB on the basis of gender. No IRB may
consist entirely of members of one profession.
(c) Each IRB shall include at least one member whose primary concerns
are in scientific areas and at least one member whose primary concerns
are in nonscientific areas.
(d) Each IRB shall include at least one member who is not otherwise
affiliated with the institution and who is not part of the immediate
family of a person who is affiliated with the institution.
(e) No IRB may have a member participate in the IRB's initial or
continuing review of any project in which the member has a conflicting
interest, except to provide information requested by the IRB.
(f) An IRB may, in its discretion, invite individuals with competence
in special areas to assist in the review of issues which require
expertise beyond or in addition to that available on the IRB. These
individuals may not vote with the IRB.
38 CFR 16.108 IRB functions and operations.
In order to fulfill the requirements of this policy each IRB shall:
(a) Follow written procedures in the same detail as described in
16.103(b)(4) and, to the extent required by, 16.103(b)(5).
(b) Except when an expedited review procedure is used (see 16.110),
review proposed research at convened meetings at which a majority of the
members of the IRB are present, including at least one member whose
primary concerns are in nonscientific areas. In order for the research
to be approved, it shall receive the approval of a majority of those
members present at the meeting.
38 CFR 16.109 IRB Review of Research.
(a) An IRB shall review and have authority to approve, require
modifications in (to secure approval), or disapprove all research
activities covered by this policy.
(b) An IRB shall require that information given to subjects as part
of informed consent is in accordance with 16.116. The IRB may require
that information, in addition to that specifically mentioned in 16.116,
be given to the subjects when in the IRB's judgment the information
would meaningfully add to the protection of the rights and welfare of
subjects.
(c) An IRB shall require documentation of informed consent or may
waive documentation in accordance with 16.117.
(d) An IRB shall notify investigators and the institution in writing
of its decision to approve or disapprove the proposed research activity,
or of modifications required to secure IRB approval of the research
activity. If the IRB decides to disapprove a research activity, it
shall include in its written notification a statement of the reasons for
its decision and give the investigator an opportunity to respond in
person or in writing.
(e) An IRB shall conduct continuing review of research covered by
this policy at intervals appropriate to the degree of risk, but not less
than once per year, and shall have authority to observe or have a third
party observe the consent process and the research.
(Approved by the Office of Management and Budget under control number
9999-0020)
38 CFR 16.110 Expedited review procedures for certain kinds of research
involving no more than minimal risk, and for minor changes in approved
research.
(a) The Secretary, HHS, has established, and published as a Notice in
the Federal Register, a list of categories of research that may be
reviewed by the IRB through an expedited review procedure. The list
will be amended, as appropriate after consultation with other
departments and agencies, through periodic republication by the
Secretary, HHS, in the Federal Register. A copy of the list is
available from the Office for Protection from Research Risks, National
Institutes of Health, HHS, Bethesda, Maryland 20892.
(b) An IRB may use the expedited review procedure to review either or
both of the following:
(1) Some or all of the research appearing on the list and found by
the reviewer(s) to involve no more than minimal risk,
(2) Minor changes in previously approved research during the period
(of one year or less) for which approval is authorized.
Under an expedited review procedure, the review may be carried out by
the IRB chairperson or by one or more experienced reviewers designated
by the chairperson from among members of the IRB. In reviewing the
research, the reviewers may exercise all of the authorities of the IRB
except that the reviewers may not disapprove the research. A research
activity may be disapproved only after review in accordance with the
non-expedited procedure set forth in 16.108(b).
(c) Each IRB which uses an expedited review procedure shall adopt a
method for keeping all members advised of research proposals which have
been approved under the procedure.
(d) The department or agency head may restrict, suspend, terminate,
or choose not to authorize an institution's or IRB's use of the
expedited review procedure.
38 CFR 16.111 Criteria for IRB approval of research.
(a) In order to approve research covered by this policy the IRB shall
determine that all of the following requirements are satisfied:
(1) Risks to subjects are minimized: (i) By using procedures which
are consistent with sound research design and which do not unnecessarily
expose subjects to risk, and (ii) whenever appropriate, by using
procedures already being performed on the subjects for diagnostic or
treatment purposes.
(2) Risks to subjects are reasonable in relation to anticipated
benefits, if any, to subjects, and the importance of the knowledge that
may reasonably be expected to result. In evaluating risks and benefits,
the IRB should consider only those risks and benefits that may result
from the research (as distinguished from risks and benefits of therapies
subjects would receive even if not participating in the research). The
IRB should not consider possible long-range effects of applying
knowledge gained in the research (for example, the possible effects of
the research on public policy) as among those research risks that fall
within the purview of its responsibility.
(3) Selection of subjects is equitable. In making this assessment
the IRB should take into account the purposes of the research and the
setting in which the research will be conducted and should be
particularly cognizant of the special problems of research involving
vulnerable populations, such as children, prisoners, pregnant women,
mentally disabled persons, or economically or educationally
disadvantaged persons.
(4) Informed consent will be sought from each prospective subject or
the subject's legally authorized representative, in accordance with, and
to the extent required by 16.116.
(5) Informed consent will be appropriately documented, in accordance
with, and to the extent required by 16.117.
(6) When appropriate, the research plan makes adequate provision for
monitoring the data collected to ensure the safety of subjects.
(7) When appropriate, there are adequate provisions to protect the
privacy of subjects and to maintain the confidentiality of data.
(b) When some or all of the subjects are likely to be vulnerable to
coercion or undue influence, such as children, prisoners, pregnant
women, mentally disabled persons, or economically or educationally
disadvantaged persons, additional safeguards have been included in the
study to protect the rights and welfare of these subjects.
38 CFR 16.112 Review by institution.
Research covered by this policy that has been approved by an IRB may
be subject to further appropriate review and approval or disapproval by
officials of the institution. However, those officials may not approve
the research if it has not been approved by an IRB.
38 CFR 16.113 Suspension or termination of IRB approval of research.
An IRB shall have authority to suspend or terminate approval of
research that is not being conducted in accordance with the IRB's
requirements or that has been associated with unexpected serious harm to
subjects. Any suspension or termination of approval shall include a
statement of the reasons for the IRB's action and shall be reported
promptly to the investigator, appropriate institutional officials, and
the department or agency head.
(Approved by the Office of Management and Budget under control number
9999-0020)
38 CFR 16.114 Cooperative research.
Cooperative research projects are those projects covered by this
policy which involve more than one institution. In the conduct of
cooperative research projects, each institution is responsible for
safeguarding the rights and welfare of human subjects and for complying
with this policy. With the approval of the department or agency head,
an institution participating in a cooperative project may enter into a
joint review arrangement, rely upon the review of another qualified IRB,
or make similar arrangements for avoiding duplication of effort.
38 CFR 16.115 IRB records.
(a) An institution, or when appropriate an IRB, shall prepare and
maintain adequate documentation of IRB activities, including the
following:
(1) Copies of all research proposals reviewed, scientific
evaluations, if any, that accompany the proposals, approved sample
consent documents, progress reports submitted by investigators, and
reports of injuries to subjects.
(2) Minutes of IRB meetings which shall be in sufficient detail to
show attendance at the meetings; actions taken by the IRB; the vote on
these actions including the number of members voting for, against, and
abstaining; the basis for requiring changes in or disapproving
research; and a written summary of the discussion of controverted
issues and their resolution.
(3) Records of continuing review activities.
(4) Copies of all correspondence between the IRB and the
investigators.
(5) A list of IRB members in the same detail as described is
16.103(b)(3).
(6) Written procedures for the IRB in the same detail as described in
16.103(b)(4) and 16.103(b)(5).
(7) Statements of significant new findings provided to subjects, as
required by 16.116(b)(5).
(b) The records required by this policy shall be retained for at
least 3 years, and records relating to research which is conducted shall
be retained for at least 3 years after completion of the research. All
records shall be accessible for inspection and copying by authorized
representatives of the department or agency at reasonable times and in a
reasonable manner.
(Approved by the Office of Management and Budget under control number
9999-0020)
38 CFR 16.116 General requirements for informed consent.
Except as provided elsewhere in this policy, no investigator may
involve a human being as a subject in research covered by this policy
unless the investigator has obtained the legally effective informed
consent of the subject or the subject's legally authorized
representative. An investigator shall seek such consent only under
circumstances that provide the prospective subject or the representative
sufficient opportunity to consider whether or not to participate and
that minimize the possibility of coercion or undue influence. The
information that is given to the subject or the representative shall be
in language understandable to the subject or the representative. No
informed consent, whether oral or written, may include any exculpatory
language through which the subject or the representative is made to
waive or appear to waive any of the subject's legal rights, or releases
or appears to release the investigator, the sponsor, the institution or
its agents from liability for negligence.
(a) Basic elements of informed consent. Except as provided in
paragraph (c) or (d) of this section, in seeking informed consent the
following information shall be provided to each subject:
(1) A statement that the study involves research, an explanation of
the purposes of the research and the expected duration of the subject's
participation, a description of the procedures to be followed, and
identification of any procedures which are experimental;
(2) A description of any reasonably foreseeable risks or discomforts
to the subject;
(3) A description of any benefits to the subject or to others which
may reasonably be expected from the research;
(4) A disclosure of appropriate alternative procedures or courses of
treatment, if any, that might be advantageous to the subject;
(5) A statement describing the extent, if any, to which
confidentiality of records identifying the subject will be maintained;
(6) For research involving more than minimal risk, an explanation as
to whether any compensation and an explanation as to whether any medical
treatments are available if injury occurs and, if so, what they consist
of, or where further information may be obtained;
(7) An explanation of whom to contact for answers to pertinent
questions about the research and research subjects' rights, and whom to
contact in the event of a research-related injury to the subject; and
(8) A statement that participation is voluntary, refusal to
participate will involve no penalty or loss of benefits to which the
subject is otherwise entitled, and the subject may discontinue
participation at any time without penalty or loss of benefits to which
the subject is otherwise entitled.
(b) Additional elements of informed consent. When appropriate, one
or more of the following elements of information shall also be provided
to each subject:
(1) A statement that the particular treatment or procedure may
involve risks to the subject (or to the embryo or fetus, if the subject
is or may become pregnant) which are currently unforeseeable;
(2) Anticipated circumstances under which the subject's participation
may be terminated by the investigator without regard to the subject's
consent;
(3) Any additional costs to the subject that may result from
participation in the research;
(4) The consequences of a subject's decision to withdraw from the
research and procedures for orderly termination of participation by the
subject;
(5) A statement that significant new findings developed during the
course of the research which may relate to the subject's willingness to
continue participation will be provided to the subject; and
(6) The approximate number of subjects involved in the study.
(c) An IRB may approve a consent procedure which does not include, or
which alters, some or all of the elements of informed consent set forth
above, or waive the requirement to obtain informed consent provided the
IRB finds and documents that:
(1) The research or demonstration project is to be conducted by or
subject to the approval of state or local government officials and is
designed to study, evaluate, or otherwise examine: (i) Public benefit
of service programs; (ii) procedures for obtaining benefits or services
under those programs; (iii) possible changes in or alternatives to
those programs or procedures; or (iv) possible changes in methods or
levels of payment for benefits or services under those programs; and
(2) The research could not practicably be carried out without the
waiver or alteration.
(d) An IRB may approve a consent procedure which does not include, or
which alters, some or all of the elements of informed consent set forth
in this section, or waive the requirements to obtain informed consent
provided the IRB finds and documents that:
(1) The research involves no more than minimal risk to the subjects;
(2) The waiver or alteration will not adversely affect the rights and
welfare of the subjects;
(3) The research could not practicably be carried out without the
waiver or alteration; and
(4) Whenever appropriate, the subjects will be provided with
additional pertinent information after participation.
(e) The informed consent requirements in this policy are not intended
to preempt any applicable federal, state, or local laws which require
additional information to be disclosed in order for informed consent to
be legally effective.
(f) Nothing in this policy is intended to limit the authority of a
physician to provide emergency medical care, to the extent the physician
is permitted to do so under applicable federal, state, or local law.
(Approved by the Office of Management and Budget under control number
9999-0020)
38 CFR 16.117 Documentation of informed consent.
(a) Except as provided in paragraph (c) of this section, informed
consent shall be documented by the use of a written consent form
approved by the IRB and signed by the subject or the subject's legally
authorized representative. A copy shall be given to the person signing
the form.
(b) Except as provided in paragraph (c) of this section, the consent
form may be either of the following:
(1) A written consent document that embodies the elements of informed
consent required by 16.116. This form may be read to the subject or the
subject's legally authorized representative, but in any event, the
investigator shall give either the subject or the representative
adequate opportunity to read it before it is signed; or
(2) A short form written consent document stating that the elements
of informed consent required by 16.116 have been presented orally to
the subject or the subject's legally authorized representative. When
this method is used, there shall be a witness to the oral presentation.
Also, the IRB shall approve a written summary of what is to be said to
the subject or the representative. Only the short form itself is to be
signed by the subject or the representative. However, the witness shall
sign both the short form and a copy of the summary, and the person
actually obtaining consent shall sign a copy of the summary. A copy of
the summary shall be given to the subject or the representative, in
addition to a copy of the short form.
(c) An IRB may waive the requirement for the investigator to obtain a
signed consent form for some or all subjects if it finds either:
(1) That the only record linking the subject and the research would
be the consent document and the principal risk would be potential harm
resulting from a breach of confidentiality. Each subject will be asked
whether the subject wants documentation linking the subject with the
research, and the subject's wishes will govern; or
(2) That the research presents no more than minimal risk of harm to
subjects and involves no procedures for which written consent is
normally required outside of the research context.
In cases in which the documentation requirement is waived, the IRB
may require the investigator to provide subjects with a written
statement regarding the research.
(Approved by the Office of Management and Budget under control number
9999-0020)
38 CFR 16.118 Applications and proposals lacking definite plans for
involvement of human subjects.
Certain types of applications for grants, cooperative agreements, or
contracts are submitted to departments or agencies with the knowledge
that subjects may be involved within the period of support, but definite
plans would not normally be set forth in the application or proposal.
These include activities such as institutional type grants when
selection of specific projects is the institution's responsibility;
research training grants in which the activities involving subjects
remain to be selected; and projects in which human subjects'
involvement will depend upon completion of instruments, prior animal
studies, or purification of compounds. These applications need not be
reviewed by an IRB before an award may be made. However, except for
research exempted or waived under 16.101 (b) or (i), no human subjects
may be involved in any project supported by these awards until the
project has been reviewed and approved by the IRB, as provided in this
policy, and certification submitted, by the institution, to the
department or agency.
38 CFR 16.119 Research undertaken without the intention of involving
human subjects.
In the event research is undertaken without the intention of
involving human subjects, but it is later proposed to involve human
subjects in the research, the research shall first be reviewed and
approved by an IRB, as provided in this policy, a certification
submitted, by the institution, to the department or agency, and final
approval given to the proposed change by the department or agency.
38 CFR 16.120 Evaluation and disposition of applications and proposals
for research to be conducted or supported by a Federal Department or
Agency.
The department or agency head will evaluate all applications and
proposals involving human subjects submitted to the department or agency
through such officers and employees of the department or agency and such
experts and consultants as the department or agency head determines to
be appropriate. This evaluation will take into consideration the risks
to the subjects, the adequacy of protection against these risks, the
potential benefits of the research to the subjects and others, and the
importance of the knowledge gained or to be gained.
(b) On the basis of this evaluation, the department or agency head
may approve or disapprove the application or proposal, or enter into
negotiations to develop an approvable one.
16.121 (Reserved)
38 CFR 16.122 Use of Federal funds.
Federal funds administered by a department or agency may not be
expended for research involving human subjects unless the requirements
of this policy have been satisfied.
38 CFR 16.123 Early termination of research support: Evaluation of
applications and proposals.
(a) The department or agency head may require that department or
agency support for any project be terminated or suspended in the manner
prescribed in applicable program requirements, when the department or
agency head finds an institution has materially failed to comply with
the terms of this policy.
(b) In making decisions about supporting or approving applications or
proposals covered by this policy the department or agency head may take
into account, in addition to all other eligibility requirements and
program criteria, factors such as whether the applicant has been subject
to a termination or suspension under paragarph (a) of this section and
whether the applicant or the person or persons who would direct or has
have directed the scientific and technical aspects of an activity has
have, in the judgment of the department or agency head, materially
failed to discharge responsibility for the protection of the rights and
welfare of human subjects (whether or not the research was subject to
federal regulation).
38 CFR 16.124 Conditions.
With respect to any research project or any class of research
projects the department or agency head may impose additional conditions
prior to or at the time of approval when in the judgment of the
department or agency head additional conditions are necessary for the
protection of human subjects.
38 CFR 16.124 PART 17 -- MEDICAL
38 CFR 16.124 Pt. 17
Sec.
17.30 Definitions.
17.31 Duty periods defined.
17.32 Certain travel and time at acceptance center deemed active
duty.
17.33 Presumption relating to psychosis.
17.34 Informed consent.
17.34a Patients' rights.
17.35 Tentative eligibility determinations.
17.36 Hospital care and medical services in foreign countries.
17.37 (Reserved)
17.38 Hospital or nursing home care at Veterans Memorial Medical
Center, Philippines.
17.39 (Reserved)
17.42 Additional services for indigents.
17.45 Persons entitled to hospital observation and physical
examination.
17.45a Examinations on an outpatient basis.
17.46 Persons entitled to hospital or domiciliary care.
17.46a Hospital and nursing home care for Commonwealth Army Veterans
and New Philippine Scouts.
17.46b Hospital care for certain retirees with chronic disability
(Executive Orders 10122, 10400 and 11733).
17.46c Hospital care for research purposes.
17.47 Eligibility for hospital, domiciliary or nursing home care of
persons discharged or released from active military, naval, or air
service.
17.48 Considerations applicable in determining eligibility for
hospital, nursing home or domiciliary care.
17.49 Priorities for inpatient care.
17.50 Use of Department of Defense, Public Health Service, or other
Federal hospitals with beds allocated to the Department of Veterans
Affairs.
17.50a Emergency use of Department of Defense, Public Health Service
or other Federal hospitals.
17.50b Hospital care and medical services in non-VA facilities.
17.50c Limitations on use of public or private hospitals.
17.50d Necessity for prior authorization.
17.50e Use of hospitals under sharing agreements.
17.50f Payment for authorized public or private hospital care.
17.51 Use of community nursing homes.
17.51a Extensions of community nursing home care beyond six months.
17.51b Transfers from facilities for nursing home care in Alaska and
Hawaii.
17.51c Definition of adult day health care.
17.51d Adult day health care in Department of Veterans Affairs
facilities.
17.51e Adult day health care in private facilities.
17.51f Extension of adult day health care beyond six months.
17.51g Provision of services to adult day health care institutions.
17.51h Eligibility.
17.51i Definitions.
17.51j Approval of community residental care facilities.
17.51k Exceptions to standards in community residential care
facilities.
17.51l Duration of approval.
17.51m Notice of noncompliance with VA standards.
17.51n Request for a hearing.
17.51o Notice and conduct of hearing.
17.51p Waiver of opportunity for hearing.
17.51q Written decision following a hearing.
17.51r Revocation of VA approval.
17.51s Availability of information.
17.52 Use of services of other Federal agencies.
17.53a Alcohol and drug dependence or abuse treatment and
rehabilitation in residential and nonresidential facilities by contract.
17.53b Contracts for residential treatment services for veterans with
alcohol or drug dependence or abuse disabilities.
17.53c Contracts for outpatient services for veterans with alcohol or
drug dependence or abuse disabilities.
17.53d Limitations on payment for alcohol and drug dependence or
abuse treatment and rehabilitation.
17.54 Medical care for survivors and dependents of certain veterans.
17.55 Medical care for certain former members of Czechoslovakian and
Polish Armed Forces.
17.56 Medical care for veterans receiving vocational training under
38 U.S.C. chapter 15.
17.56a Protection of health-care eligibility.
17.57 Readjustment counseling and related mental health services.
17.58 Contracts for readjustment counseling or mental health
services.
17.59 Outpatient care for research purposes.
17.60 Eligibility for outpatient services.
17.60a Outpatient medical services for military retirees and other
beneficiaries.
17.60b Outpatient medical services for Department of Veterans Affairs
employees and others in emergencies.
17.60c Sharing specialized medical resources on an outpatient basis.
17.60d Prescriptions filled.
17.60e Prescriptions in Alaska, and territories and possessions.
17.60f Mental health services.
17.60g Priorities for medical services.
17.60h Immunizations under national programs.
17.61 Refusal of treatment by unnecessarily breaking appointments.
17.62 Charges for care or services.
17.63 Collection of claims.
17.64 Referrals of compromise settlement offers.
17.65 Terminations and suspensions.
17.65a Waivers.
17.66 Authority for disciplinary action.
17.70 (Reserved)
17.71 Services or ceremonies on Department of Veterans Affairs
hospital or center reservations.
17.75 Conditions of custody.
17.76 Submittal of claim for reimbursement.
17.77 Claims in cases of incompetent patients.
17.78 Adjudication of claims.
17.80 Payment or reimbursement of the expenses of hospital care and
other medical services not previously authorized.
17.80a Limitations on payment or reimbursement of the costs of
emergency hospital care and medical services not previously authorized.
17.81 Payment or reimbursement of the expenses of repairs to
prosthetic appliances and similar devices furnished without prior
authorization.
17.82 Claimants.
17.83 Preparation of claims.
17.84 Where to file claims.
17.85 Timely filing.
17.86 Date of filing claims.
17.87 Allowable rates and fees.
17.88 Retroactive payments prohibited.
17.89 Payment for treatment dependent upon preference prohibited.
17.90 Payment of abandoned claims prohibited.
17.91 Appeals.
17.95 Authority to adjudicate reimbursement claims.
17.96 Authority to adjudicate foreign reimbursement claims.
17.98 Authority to approve sharing agreements, contracts for scarce
medical specialist services and contracts for other medical services.
17.99 Authority to procure fee basis services, community hospital or
nursing home care and individually authorized services.
17.100 Transportation of claimants and beneficiaries.
17.101 Limitations.
17.102 Approval of unauthorized travel of claimants and
beneficiaries.
17.103 Travel incident to research.
17.115 Prosthetic and similar appliances.
17.115a Repairs or replacements necessitated by accidents caused by
service-connected disability.
17.115b Invalid lifts for recipients of aid and attendance allowance
or special monthly compensation.
17.115c Therapeutic and rehabilitative devices for recipients of aid
and attendance allowance or special monthly compensation.
17.115d Devices to assist in overcoming the handicap of deafness.
17.116 Training in the use of appliances.
17.118 Dog-guides and equipment for blind.
17.119 Minimum standards of safety and quality for automotive
adaptive equipment.
17.119a Eligibility for automobile adaptive equipment.
17.119b Definition-adaptive equipment.
17.119c Limitations on assistance.
17.119d Obtaining vehicles for special driver training courses.
17.120 Authorization of dental examinations.
17.123 Authorization of outpatient dental treatment.
17.123a Eligibility for Class II dental treatment without rating
action.
17.123b Posthospital outpatient dental treatment.
17.123c Patient responsibility in making and keeping dental
appointments.
17.124 Emergency outpatient dental treatment.
17.129 Dental services for hospital or nursing home patients and
domiciled members.
17.135 Voluntary participation in sickle cell anemia program.
17.155 Autopsies.
17.160 Organization.
17.161 Delegation of authority.
17.165 Recognition of a State home.
17.165a Filing applications.
17.165b Approval of annexes and new facilities.
17.165c Aid for period prior to recognition prohibited.
17.165d Prerequisites for payments to State homes.
17.166 Aid for domiciliary care.
17.166a Aid for nursing home care.
17.166b Aid for hospital care.
17.166c Amount of aid payable.
17.166d Department of Veterans Affairs approval of eligibility
required.
17.167 Inspection of recognized State homes.
17.168 Audit of State homes.
17.170 Definitions.
17.171 Maximum number of nursing home beds for veterans by State.
17.172 Scope of grants program.
17.173 Applications with respect to projects.
17.174 Disallowance of a grant application and notice of a right to
hearing.
17.175 Recapture provisions.
17.176 State to retain control of operations.
17.177 General program requirements for construction and acquisition
of and equipment for State home facilities.
17.178 Domicilliary and nursing home care program.
17.179 State home hospital program.
17.180 Preapplication phase.
17.181 Application phase.
17.182 Equipment.
17.183 General design guidelines and standards.
17.190 Contingency backup to the Department of Defense.
17.210 Sharing specialized medical resources.
17.211 Sharing medical information services.
17.212 Reports.
17.220 Coordination of programs with Department of Health and Human
Services.
17.260 Scope of the grant program.
17.261 The Subcommittee on Academic Affairs.
17.262 Ex officio member of subcommittee.
17.265 Applicants for grants.
17.266 Applications.
17.267 Applications for grants for programs which include
construction projects.
17.268 Amended or supplemental applications.
17.270 Awards procedures.
17.271 Terms and conditions to which awards are subject.
17.275 Direct costs.
17.276 Patient care costs to be excluded from direct costs.
17.277 Indirect costs.
17.281 Authority to approve applications discretionary.
17.285 Suspension and termination procedures.
17.287 Recoupments and releases.
17.290 Payments.
17.291 Copyrights and patents.
17.350 The program of assistance to the Philippines.
17.351 Grants for the replacement and upgrading of equipment at
Veterans Memorial Medical Center.
17.352 Amounts and use of grant funds for the replacement and
upgrading of equipment.
17.355 Awards procedures.
17.362 Acceptance of medical supplies as payment.
17.363 Length of stay.
17.364 Eligibility determinations.
17.365 Admission priorities.
17.366 Authorization of emergency admissions.
17.367 Republic of the Philippines to print forms.
17.369 Inspections.
17.370 Termination of payments.
17.400 Purpose and scope of the program.
17.401 Administration.
17.402 Definitions.
17.403 Eligibility.
17.404 Application.
17.405 Agreements and grant awards.
17.406 Payments.
17.407 Expenditure of grant funds.
17.408 Nondiscrimination.
17.409 Publications and copyright.
17.410 Accountability.
17.411 Records, reports, and audit.
17.412 Additional conditions.
17.413 Early termination and withholding of payments.
17.414 Recapture provision.
17.415 Right to hearing.
17.416 Expansion of hospital education and training capacity.
17.500 General.
17.501 Administration responsibility.
17.502 (Reserved)
17.503 Individual facility responsibility.
17.504 Conduct.
17.505 HSRO-SIR plan.
17.506 Mandatory HSRO-SIR functions and elements.
17.507 Description of continuous monitoring.
17.508 Patient injury control.
17.509 Utilization review.
17.510 Problem focused health care evaluation.
17.511 -- 17.513 (Reserved)
17.514 HSRO-MEDIPRO.
17.515 HSRO-SERP.
17.516 HSRO records and documents.
17.517 HSRO-SIR records and documents.
17.518 HSRO-MEDIPRO records and documents.
17.519 HSRO-SERP records and documents.
17.520 Improper disclosure.
17.521 Disclosure methods.
17.522 Non-Department of Veterans Affairs requests.
17.523 Disclosure authorities.
17.524 Appeal of decision to deny disclosure.
17.525 Facility responsibilities.
17.526 (Reserved)
17.527 Access to HSRO data within the Department.
17.528 -- 17.533 (Reserved)
17.534 Authorized disclosure: Non-Department of Veterans Affairs
requests.
17.535 Redisclosure.
17.536 -- 17.539 (Reserved)
17.540 Penalties for violations.
17.541 Tort Claim Information System.
17.600 Purpose.
17.601 Definitions.
17.602 Eligibility.
17.603 Availability of scholarships.
17.604 Application for the scholarship program.
17.605 Selection of participants.
17.606 Award procedures.
17.607 Obligated service.
17.608 Deferment of obligated service.
17.609 Pay during period of obligated service.
17.610 Failure to comply with terms and conditions of participation.
17.611 Bankruptcy.
17.612 Cancellation, waiver, or suspension of obligation.
Authority: 72 Stat. 1114, 38 U.S.C. 501, unless otherwise noted.
38 CFR 16.124 Definitions and Active Duty
38 CFR 17.30 Definitions.
When used in Department of Veterans Affairs medical regulations, each
of the following terms shall have the meaning ascribed to it in this
section:
(a) Veteran. The term veteran means a person who served in the
active military, naval, or air service, and who was discharged or
released therefrom under conditions other than dishonorable.
(b) Armed Forces. The term Armed Forces means the United States
Army, Navy, Marine Corps, Air Force, and Coast Guard, including the
reserve components thereof.
(c) Active military, naval, or air service. See 17.31 and 17.32.
(d) Discharge or release. The term discharge or release includes
retirement from the active military, naval, or air service.
(e) Veteran of any war. The term veteran of any war means any
veteran who served in the active military, naval, or air service during
a period of war and includes any veteran of the Indian wars, or any
veteran awarded the Medal of Honor, Pub. L. 88-481.
(f) Period of war. The term period of war means each of the Indian
wars, the Spanish-American War, the Mexican border period, World War I,
World War II, the Korean conflict, the Vietnam era and the period
beginning on the date of any future declaration of war by the Congress
and ending on a date prescribed by Presidential proclamation or
concurrent resolution of the Congress.
(g) Spanish-American War. The term Spanish-American War (1) means
the period beginning on April 21, 1898, and ending on July 4, 1902, (2)
includes the Philippine Insurrection and the Boxer Rebellion, and (3),
in the case of a veteran who served with the United States military
forces engaged in hostilities in the Moro Province, means the period
beginning on April 21, 1898, and ending on July 15, 1903.
(g-1) Mexican border period. The term Mexican border period means
the period beginning on May 9, 1916, and ending on April 5, 1917, in the
case of a veteran who during such period served for 90 days or more in
Mexico, on the borders thereof, in the waters adjacent thereto, or any
combination thereof.
(h) World War I. The term World War I (1) means the period beginning
on April 6, 1917, and ending on November 11, 1918, and (2), in the case
of a veteran who served with the United States military forces in
Russia, means the period beginning on April 6, 1917, and ending on April
1, 1920.
(i) World War II. The term World War II means the period beginning
on December 7, 1941, and ending on December 31, 1946.
(j) Korean conflict. The term Korean conflict means the period
beginning on June 27, 1950, and ending on January 31, 1955.
(k) Vietnam era. The term Vietnam era means the period beginning
August 5, 1964, and ending on May 7, 1975.
(Authority: 38 U.S.C. 101(29))
(l) Hospital care. The term hospital care includes:
(1) Medical services rendered in the course of hospitalization of any
veteran and transportation and incidental expenses pursuant to the
provisions of 17.100;
(2) Such mental health services, consultation, professional
counseling, and training for the members of the immediate family or
legal guardian of a veteran, or the individual in whose household such
veteran certifies an intention to live, as may be essential to the
effective treatment and rehabilitation of a veteran or dependent or
survivor of a veteran receiving care under the provisions of 17.54(c)
and
(Authority: 38 U.S.C. 1701(5))
(3)(i) Medical services rendered in the course of the hospitalization
of a dependent or survivor of a veteran receiving care under the
provisions of 17.54(c), and (ii) transportation and incidental expenses
for such dependent or survivor of a veteran who is in need of treatment
for any injury, disease, or disability and is unable to defray the
expense of transportation.
(Authority: 38 U.S.C. 1701(5))
(m) Medical services. The term medical services includes, in
addition to medical examination, treatment, and rehabilitative services:
(1) Surgical services, dental services and appliances as authorized
in 17.60(f), 17.120, 17.123 and 17.123a, optometric and podiatric
services, (in the case of a person otherwise receiving care or services
under this chapter) the preventive health care services set forth in 38
U.S.C. 1762, and except for veterans authorized outpatient care under
17.60(e), wheelchairs, artificial limbs, trusses and similar appliances,
special clothing made necessary by the wearing of prosthetic appliances,
and such other supplies or services as are medically determined to be
reasonable and necessary.
(Authority: 38 U.S.C. 1701(6)(A)(i))
(2) Such consultation, professional counseling, training and mental
health services as are necessary in connection with the treatment --
(i) Of the service-connected disability of a veteran pursuant to
17.60(a) and (b);
(ii) Of the nonservice-connected disability of a veteran where such
services were initiated during the veteran's hospitalization and the
provision of such services is essential to permit the release of the
veteran from inpatient care;
for the members of the immediate family or legal guardian of the
veteran, or the individual in whose household such veteran certifies an
intention to live, as may be essential to the effective treatment and
rehabilitation of the veteran or dependent or survivor of a veteran
receiving care under 17.54(c). For the purposes of this paragraph, a
dependent or survivor of a veteran receiving care under 17.54(c) shall
be eligible for the same medical services as a veteran; and
(3) Transportation and incidental expenses for any person entitled to
such benefits under the provisions of 17.100.
(Authority: 38 U.S.C. 1701(6))
(n) Domiciliary care. The term domiciliary care means the furnishing
of a home to a veteran, embracing the furnishing of shelter, food,
clothing and other comforts of home, including necessary medical
services. The term further includes travel and incidental expenses
pursuant to 17.100.
(o) Service-connected disability. The term service-connected
disability means a disability incurred or aggravated in line of duty in
the active military, naval, or air service. See 17.33 referable to
presumptive service connection for psychosis. For purposes of
outpatient treatment and on submission of an appropriate application
therefor, all disabilities of Spanish-American War veterans may be
considered war service connected.
(p) Nursing home care. The term nursing home care means the
accommodation of convalescents or other persons who are not acutely ill
and not in need of hospital care, but who require skilled nursing or
intermediate care and related medical services, if such care and
services are prescribed by, or are performed under the general direction
of, persons duly licensed to provide such care. The term includes
intensive care where the nursing service is under the supervision of a
registered professional nurse.
(Authority: 38 U.S.C. 101(28), 1720(e))
(q) Research center. The term research center means an institution
(or part of an institution) the primary function of which is research,
training of specialists and demonstrations and which, in connection
therewith, provides specialized, high quality diagnostic and treatment
services for inpatients and outpatients.
(r) Specialized medical resources. The term specialized medical
resources means medical resources (whether equipment, space or
personnel) which, because of cost, limited availability, or unusual
nature, are either unique in the medical community or are subject to
maximum utilization only through mutual use.
(s) Commonwealth Army veteran. The term Commonwealth Army veteran
means any person who served before July 1, 1946, in the organized
military forces of the Government of the Philippines, while such forces
were in the service of the Armed Forces of the United States, pursuant
to the military order of the President of the United States dated July
26, 1941, including among such military forces organized guerrilla
forces under commanders appointed, designated, or subsequently
recognized by the Commander-in-Chief, Southwest Pacific Area, or other
competent authority in the Army of the United States, and who was
discharged or released from such service under conditions other than
dishonorable.
(t) New Philippine Scout. The term new Philippine Scout means any
person who served in the Philippine Scouts under section 14 of the Armed
Forces Voluntary Recruitment Act of 1945, and who was discharged or
released from such service under conditions other than dishonorable.
(u) State home. The term State home means a home established by a
State (other than a possession) for veterans disabled by age, disease,
or otherwise who by reason of such disability are incapable of earning a
living. The term also includes a home which furnishes nursing home care
for such veterans.
(v) Rehabilitative services. The term rehabilitative services means
such professional counseling, and guidance services and treatment
programs (other than those types of vocational rehabilitation services
for the purpose of restoring employability) as are necessary to restore
to the maximum extent possible the physical, mental, and psychological
functioning of an ill or disabled person.
(Authority: 38 U.S.C. 1701(8))
(w) VA facilities. The term Department of Veterans Affairs
facilities means:
(1) Facilities over which the Secretary has direct jurisdiction;
(2) Government facilities for which the Secretary contracts.
(3) Public or private facilities at which the Secretary provides
recreational activities for patients receiving care under section 1710,
title 38 U.S.C.
(Authority: 38 U.S.C. 1701(4))
(23 FR 6498, Aug. 22, 1958, as amended at 24 FR 8326, Oct. 14, 1959;
30 FR 1787, Feb. 9, 1965; 32 FR 6841, Mar. 4, 1967; 32 FR 13813, Oct.
4, 1967; 33 FR 5298, Apr. 3, 1968; 33 FR 19009, Dec. 20, 1968; 34 FR
9339, June 13, 1969; 36 FR 4782, Mar. 12, 1971; 45 FR 6934, Jan. 31,
1980; 47 FR 58246, Dec. 30, 1982; 49 FR 50029, Dec. 26, 1984; 51 FR
25264, July 10, 1986; 54 FR 14648, Apr. 12, 1989)
38 CFR 17.31 Duty periods defined.
Definitions of duty periods applicable to eligibility for medical
benefits are as follows:
(a) Active military, naval, or air service. The term active
military, naval, or air service includes active duty, any period of
active duty for training during which the individual concerned was
disabled from a disease or injury incurred or aggravated in line of
duty, and any period of inactive duty training during which the
individual concerned was disabled from an injury incurred or aggravated
in line of duty.
(b) Active duty. The term active duty means (1) Full-time duty in
the Armed Forces, other than active duty for training;
(2) Full-time duty (other than for training purposes) as a
commissioned officer of the Regular or Reserve Corps of the Public
Health Service (i) on or after July 29, 1945, or (ii) before that date
under circumstances affording entitlement to full military benefits;
(3) Full-time duty as a commissioned officer of the National Oceanic
and Atmospheric Administration or its predecessor organization the Coast
and Geodetic Survey (i) on or after July 29, 1945, or (ii) before that
date (a) while on transfer to one of the Armed Forces, or (b) while, in
time of war or national emergency declared by the President, assigned to
duty on a project for one of the Armed Forces in an area determined by
the Secretary of Defense to be of immediate military hazard, or (c) in
the Philippine Islands on December 7, 1941, and continuously in such
islands thereafter.
(Authority: 38 U.S.C. 101(21)(C))
(4) Service as a cadet at the U.S. Military, Air Force, or Coast
Guard Academy, or as midshipman at the U.S. Naval Academy;
(5) Full-time duty as a member of the Women's Army Auxiliary Corps,
Women's Reserve of the Navy and Marine Corps and Women's Reserve of the
Coast Guard;
(6) Authorized travel to or from such duty or service;
(7) Service of any person as a member of the Women's Air Forces
Service Pilots, or the service of any person in any similarly situated
group the members of which rendered service to the Armed Forces of the
United States in a capacity considered civilian employment or
contractual service at the time such service was rendered, when the
Secretary of Defense has:
(i) Determined that the service of such group constitutes active
military service, and
(ii) Issued such person who is a member of such group a discharge
from such service under honorable conditions. (Pub. L. 95-202, 91 Stat.
1433)
(c) Active duty for training. The term active duty for training
means:
(1) Full-time duty in the Armed Forces performed by Reserves for
training purposes;
(2) Full-time duty for training purposes performed as a commissioned
officer of the Reserve Corps of the Public Health service during the
period covered in paragraph (b)(2) of this section;
(3) In the case of members of the National Guard or Air National
Guard of any State, full-time duty under sections 316, 502, 503, 504, or
505 of title 32 U.S.C., or the prior corresponding provisions of law;
(4) Duty performed by a member of a Senior Reserve Officers Training
Corps program when ordered to such duty for the purpose of field
training or a practice cruise under chapter 103 of title 10; and
(Authority: 38 U.S.C. 101(22));
(5) Authorized travel to or from such duty;
(6) Active duty for training does not include duty performed as a
temporary member of the Coast Guard Reserve.
(d) Inactive duty training. The term inactive duty training means:
(1) Duty (other than full-time duty) prescribed for Reserves (including
commissioned officers of the Reserve Corps of the Public Health Service)
by the Secretary concerned under section 206, title 37 U.S.C., or any
other provision of law;
(2) Special additional duties authorized for Reserves (including
commissioned officers of the Reserve Corps of the Public Health Service)
by an authority designated by the Secretary concerned and performed by
them on a voluntary basis in connection with the prescribed training or
maintenance activities of the units to which they are assigned.
(3) Duty (other than full-time duty) for members of the National
Guard or Air National Guard of any State under the provisions of law
stated in paragraph (c)(3) of this section.
(4) Inactive duty for training does not include work or study
performed in connection with correspondence courses, or attendance at an
educational institution in an inactive status, or duty performed as a
temporary member of the Coast Guard Reserve.
(34 FR 9339, June 13, 1969, as amended at 45 FR 6934, Jan. 31, 1980;
45 FR 43169, June 26, 1980; 48 FR 56580, Dec. 22, 1983)
38 CFR 17.32 Certain travel and time at acceptance center deemed active
duty.
In any of the following circumstances, an applicant will be deemed to
have active service:
(a) When reporting for acceptance. Any person who has either (1)
applied for enlistment or enrollment in the active military, naval, or
air service and has been provisionally accepted and directed or ordered
to report to a place for final acceptance in such service, or (2) who
has been selected or drafted for service in the Armed Forces and has
reported pursuant to the call of his or her local draft board and before
rejection; or (3) who has been called into the Federal service as a
member of the National Guard, but has not been enrolled for the Federal
service; and who has suffered an injury or contracted a disease in line
of duty while en route to or from, or at, a place for final acceptance
or entry upon active duty, will, for purposes of determining service
connection for disability, be considered to have been on active duty and
to have incurred such disability in the active military, naval, or air
service.
(b) When reporting for or returning from active duty or inactive duty
training. Any person who when authorized or required by competent
authority, assumes an obligation to perform active duty for training or
inactive duty training and is disabled from an injury incurred while
proceeding directly to or returning directly from such active duty for
training or inactive duty training shall be deemed to have been on
active duty for training or inactive duty training as the case may be,
at the time such injury was incurred.
(c) When returning home from active duty. Whenever a person is
discharged or released from a period of active duty he or she shall be
deemed to continue on active duty during the period of time immediately
following the date of such discharge or release from such duty
determined by the Secretary concerned to be required in order to proceed
to his or her home by the most direct route, and in any event, until
midnight of the date of such discharge or release.
(34 FR 9340, June 13, 1969, as amended at 45 FR 6935, Jan. 31, 1980)
38 CFR 17.32 Presumption Relating to Psychosis
38 CFR 17.33 Presumption relating to psychosis.
For the purpose of any provision of any section in this part 17,
specifying service-connected disability as a prerequisite for
authorizing any medical service or benefit, any veteran of World War II,
the Korean conflict, or Vietnam era who developed an active psychosis
(a) within 2 years after his or her discharge or release from the active
military, naval or air service, and (b) before July 26, 1949, in the
case of a veteran of World War II, or February 1, 1957, in the case of a
veteran of the Korean conflict, or before the expiration of 2 years
following termination of the Vietnam era in the case of a Vietnam era
veteran, shall be deemed to have incurred such disability in the active
military, naval or air service.
(32 FR 13813, Oct. 4, 1967, as amended at 45 FR 6935, Jan. 31, 1980)
38 CFR 17.33 Protection of Patient Rights
38 CFR 17.34 Informed consent.
(a) For the purpose of this section, the term:
(1) Informed consent means the freely given consent that follows a
careful explanation by a practitioner to the patient or the patient's
representative of the proposed diagnostic or therapeutic procedure or
course of treatment.
(2) Practitioner includes any physician, dentist, or health care
professional who has been granted specific clinical privileges to
perform the diagnostic or therapeutic procedure involved.
(3) Representative means an individual, organization or other body
authorized to act on behalf of an incompetent patient pursuant to
guidelines promulgated by VA.
(b) To the maximum extent practicable, all patient care furnished
under title 38 U.S.C., shall be carried out only with the full and
informed consent of the patient or subject or, in appropriate cases, a
representative thereof. In seeking such consent, the practitioner who
has primary responsibility for the patient or who will be performing the
particular procedure or providing the treatment must inform the patient
in language understandable to the patient (or where appropriate, the
patient's representative) of the nature of a proposed procedure or
treatment, as well as of the expected benefits; reasonably foreseeable
associated risks, complications or side effects; reasonable and
available alternatives; and anticipated results of nothing is done.
The patient should be given the opportunity to ask questions, to
indicate comprehension of the information provided, and to grant
permission freely and without any coercion for performance of a
procedure or course of treatment, as well as the opportunity to withhold
or revoke such permission at any time without prejudice.
(c) The fact that the patient (or a representative) has been provided
appropriate information and counseling and has consented to a proposed
procedure or course of treatment in accordance with paragraph (b) of
this section shall be documented in the patient's medical record.
(d) If a proposed course of treatment or procedure involves approved
medical research in whole or in part, the patient or representative
shall be advised of this. Informed consent shall be obtained
specifically for the administration or performance of that aspect of the
treatment or procedure which is identified as involving such research.
This consent shall be in addition to the consent to be obtained for the
administration or performance of the noresearch aspect of the treatment
or procedure and it shall contain the various elements set forth in
paragraph (b) of this section.
(e) The Chief Medical Director will establish an appropriate method
for the periodic review of patients' consent in order to insure
compliance with this section and other regulations and to maintain the
protection of the patient's rights.
(Authority: 38 U.S.C. 7331)
(49 FR 9173, Mar. 12, 1984)
38 CFR 17.34a Patients' rights.
(a) General. (1) Patients have a right to be treated with dignity in
a humane environment that affords them both reasonable protection from
harm and appropriate privacy with regard to their personal needs.
(2) Patients have a right to receive, to the extent of eligibility
therefor under the law, prompt and appropriate treatment for any
physical or emotional disability.
(3) Patients have the right to the least restrictive conditions
necessary to achieve treatment purposes.
(4) No patient in the Department of Veterans Affairs medical care
system, except as otherwise provided by the applicable State law, shall
be denied legal rights solely by virtue of being voluntarily admitted or
involuntarily committed. Such legal rights include, but are not limited
to, the following:
(i) The right to hold and to dispose of property except as may be
limited in accordance with paragraph (c)(2) of this section;
(ii) The right to execute legal instruments (e.g., will);
(iii) The right to enter into contractual relationships;
(iv) The right to register and vote;
(v) The right to marry and to obtain a separation, divorce, or
annulment;
(vi) The right to hold a professional, occupational, or vehicle
operator's license.
(b) Residents and inpatients. Subject to paragraph (c) of this
section, patients admitted on a residential or inpatient care basis to
the Department of Veterans Affairs medical care system have the
following rights:
(1) Visitations and communications. Each patient has the right to
communicate freely and privately with persons outside the facility,
including government officials, attorneys, and clergymen. To facilitate
these communications each patient shall be provided the opportunity to
meet with visitors during regularly scheduled visiting hours, convenient
and reasonable access to public telephones for making and receiving
phone calls, and the opportunity to send and receive unopened mail.
(i) Communications with attorneys, law enforcement agencies, or
government officials and representatives of recognized service
organizations when the latter are acting as agents for the patient in a
matter concerning Department of Veterans Affairs benfits, shall not be
reviewed.
(ii) A patient may refuse visitors.
(iii) If a patient's right to receive unopened mail is restricted
pursuant to paragraph (c) of this section, the patient shall be required
to open the sealed mail while in the presence of an appropriate person
for the sole purpose of ascertaining whether the mail contains
contraband material, i.e., implements which pose significant risk of
bodily harm to the patient or others or any drugs or medication. Any
such material will be held for the patient or disposed of in accordance
with instructions concerning patients' mail published by the Veterans
Health Administration, Department of Veterans Affairs, and/or the local
health care facility.
(iv) Each patient shall be afforded the opportunity to purchase, at
the patient's expense, letter writing material including stamps. In the
event a patient needs assistance in purchasing writing material, or in
writing, reading or sending mail, the medical facility will attempt, at
the patient's request, to provide such assistance by means of
volunteers, sufficient to mail at least one (1) letter each week.
(v) All information gained by staff personnel of a medical facility
during the course of assisting a patient in writing, reading, or sending
mail is to be kept strictly confidential except for any disclosure
required by law.
(2) Clothing. Each patient has the right to wear his or her own
clothing.
(3) Personal Possessions. Each patient has the right to keep and use
his or her own personal possessions consistent with available space,
governing fire safety regulations, restrictions on noise, and
restrictions on possession of contraband material, drugs and
medications.
(4) Money. Each patient has the right to keep and spend his or her
own money and to have access to funds in his or her account in
accordance with instructions concerning personal funds of patients
published by the Veterans Health Administration.
(5) Social Interaction. Each patient has the right to social
interaction with others.
(6) Exercise. Each patient has the right to regular physical
exercise and to be outdoors at regular and frequent intervals.
Facilities and equipment for such exercise shall be provided.
(7) Worship. The opportunity for religious worship shall be made
available to each patient who desires such opportunity. No patient will
be coerced into engaging in any religious activities against his or her
desires.
(c) Restrictions. (1) A right set forth in paragraph (b) of this
section may be restricted within the patient's treatment plan by written
order signed by the appropriate health or mental health professional if
--
(i) It is determined pursuant to paragraph (c)(2) of this section
that a valid and sufficient reason exists for a restriction, and
(ii) The order imposing the restriction and a progress note detaining
the indications therefor are both entered into the patient's permanent
medical record.
(2) For the purpose of this paragraph, a valid and sufficient reason
exists when, after consideration of pertinent facts, including the
patient's history, current condition and prognosis, a health or mental
health professional reasonably believes that the full exercise of the
specific right would --
(i) Adversely affect the patient's physical or mental health,
(ii) Under prevailing community standards, likely stigmatize the
patient's reputation to a degree that would adversely affect the
patient's return to independent living,
(iii) Significantly infringe upon the rights of or jeopardize the
health or safety of others, or
(iv) Have a significant adverse impact on the operation of the
medical facility, to such an extent that the patient's exercise of the
specific right should be restricted. In determining whether a patient's
specific right should be restricted, the health or mental health
professional concerned must determine that the likelihood and
seriousness of the consequences that are expected to result from the
full exercise of the right are so compelling as to warrant the
restriction. The Chief of Service or Chief of Staff, as designated by
local policy, should concur with the decision to impose such
restriction. In this connection, it should be noted that there is no
intention to imply that each of the reasons specified in paragraphs
(c)(2)(i) through (iv) of this section are logically relevant to each of
the rights set forth in paragraph (b)(1) of this section.
(3) If it has been determined under paragraph (c)(2) of this section
that a valid and sufficient reason exists for restricting any of the
patient's rights set forth in paragraph (c)(1) of this section, the
least restrictive method for protecting the interest or interests
specified in paragraphs (c)(2)(i) through (iv) of this section that are
involved shall be employed.
(4) The patient must be promptly notified of any restriction imposed
pursuant to this paragraph and the reasons therefor.
(5) All restricting orders must be reviewed at least once every 30
days by the practitioner and must be concurred in by the Chief of
Service or Chief of Staff.
(d) Restraint and seclusion of patients. (1) Each patient has the
right to be free from physical restraint or seclusion except in
situations in which there is a substantial risk of imminent harm by the
patient to himself, herself, or others and less restrictive means of
preventing such harm have been determined to be inappropriate or
insufficient. Patients will be physically restrained or placed in
seclusion only on the written order of a physician. The reason for any
restraint order will be clearly documented in the progress notes of the
patient's medical record. The written order may be entered on the basis
of telephonic authority received from a physician, but in such an event
the ordering physician must examine the patient and sign the written
order within twelve (12) hours of giving the order for restraint or
seclusion. In emergency situations, where inability to contact a
physician prior to restraint is likely to result in immediate harm to
the patient or others, the patient may be temporarily restrained by a
member of the staff until appropriate authorization can be received from
a physician. Use of restraints or seclusion shall be for no more than
twenty-four (24) hours, at which time the physician shall again be
consulted to determine if continuance of such restraint or seclusion is
required. Restraint or seclusion may not be used as a punishment, for
the convenience of staff, or as a substitute for treatment programs.
(2) While in restraint or seclusion, the patient must be seen at
least once every twelve (12) hours by an appropriate health professional
who will monitor and chart the patient's physical and mental condition
and by other ward personnel as frequently as is reasonable under
existing circumstances, but no less than once each hour.
(3) Each patient in restraint or seclusion shall have bathroom
privileges according to his or her needs.
(4) Each patient in restraint or seclusion shall have the opportunity
to bathe at least every twenty-four (24) hours.
(5) Each patient in restraint or seclusion shall be provided
nutrition and fluid appropriately.
(e) Medication. Patients have a right to be free from unnecessary or
excessive medication. Except in an emergency, medication will be
administered only on the written order of a physician in that patient's
medical record. The written order may be entered on the basis of
telephonic authority received from a physician, but in such event a
physician must countersign the written order within 24 hours of the
ordering of the medication. The attending physician shall be
responsible for all medication given or administered to a patient. The
attending physician shall review the drug regimen of each patient under
his or her care at least every thirty (30) days. It is recognized that
administration of certain medications will be reviewed more frequently.
Medication shall not be used as punishment, for the convenience of the
staff, or in quantities which interfere with the patient's treatment
program.
(f) Confidentiality. Information gained by staff from the patient or
the patient's medical record will be kept confidential and will not be
disclosed except in accordance with applicable law.
(g) Patient grievances. Each patient has the right to present
grievances with respect to perceived infringement of the rights
described in this section or concerning any other matter on behalf of
himself, herself or others, to staff members at the facility in which
the patient is receiving care, other Department of Veterans Affairs
officials, government officials, members of Congress or any other person
without fear or reprisal.
(h) Notice of patient's rights. Upon the admission of any patient,
the patient or his/her representative shall be informed of the rights
described in this section, shall be given a copy of a statement of those
rights and shall be informed of the fact that the statement of rights is
posted at each nursing station. All staff members assigned to work with
patients will be given a copy of the statement of rights and these
rights will be discussed with them by their immediate supervisor.
(i) Other rights. The rights described in this section are in
addition to and not in derogation of any statutory, constitutional or
other legal rights.
(Authority: 38 U.S.C. 501, 1721)
(47 FR 55486, Dec. 10, 1982)
38 CFR 17.34a Tentative Eligibility Determinations
38 CFR 17.35 Tentative eligibility determinations.
When an application for hospital care or other medical services,
except outpatient dental care, has been filed which requires an
adjudication as to service connection or a determination as to any other
eligibility prerequisite which cannot immediately be established, the
service (including transportation) may be authorized without further
delay if it is determined that eligibility for care probably will be
established. Tentative eligibility determinations under this section,
however, will only be made if:
(a) In emergencies. The applicant needs hospital care or other
medical services in emergency circumstances, or
(b) For persons recently discharged from service. The application
was filed within 6 months after date of honorable discharge from a
period of not less than 6 months of active duty.
(35 FR 6586, Apr. 24, 1970)
38 CFR 17.35 Hospital or Nursing Home Care and Medical Services in Foreign Countries
38 CFR 17.36 Hospital care and medical services in foreign countries.
The Secretary may furnish hospital care and medical services to any
veteran sojourning or residing outside the United States, without regard
to the veteran's citizenship:
(a) If necessary for treatment of a service-connected disability, or
any disability associated with and held to be aggravating a
service-connected disability;
(b) If the care is furnished to a veteran participating in a
rehabilitation program under 38 U.S.C. chapter 31 who requires care for
the reasons enumerated in 38 CFR 17.48(j)(2).
(Authority: 38 U.S.C. 1724)
(55 FR 11370, Mar. 28, 1990)
17.37 (Reserved)
38 CFR 17.38 Hospital or nursing home care at Veterans Memorial Medical
Center, Philippines.
Hospital nursing home care at the Veterans Memorial Medical Center,
Quezon City, Republic of the Philippines, may be authorized by the
United States Department of Veterans Affairs pursuant to the terms and
conditions set forth in 17.350-17.370 for United States veterans for:
(38 U.S.C. 1724)
(a) Any service-connected disability of a veteran of service in the
Armed Forces of the United States (including veterans of service in the
Philippine Scouts under laws in effect prior to the enactment of section
14 of the Armed Forces Voluntary Recruitment Act of 1945), who is
eligible for hospital care under 17.47 (a) or (b).
(b) A nonservice-connected disability of a veteran if such veteran is
unable to defray the expenses of necessary hospital care.
(Authority: 38 U.S.C. 1724(c))
(c) Transfers for nursing home care. Transfer of any United States
veteran hospitalized in the Philippines at Department of Veterans
Affairs expense to a nursing home facility may be authorized subject to
the following:
(1) The nursing home care facility is determined to meet the physical
and professional standards prescribed by the Chief Medical Director, and
(2) The cost of the nursing home care will not exceed the rates
specified in 17.51(b)(3).
(3) The nursing home care will not be for more than 6 months in the
aggregate in connection with any one transfer, except in the case of a
veteran whose hospitalization was primarily for a service-connected
disability. In such case entitlement to nursing home care under this
subparagraph is not subject to any limitation.
(Authority: 38 U.S.C. 1724)
(d) Extension of community nursing home care beyond 6 months. The
Director may authorize, for any veteran whose hospitalization was not
primarily for a service-connected disability, an extension of nursing
care in a public or private nursing home care facility at VA expense
beyond six months when the need for nursing home care continues to
exist, and
(1) Arrangements for payment of such care through a public assistance
program (such as Medicaid) for which the veteran has applied, have been
delayed due to unforeseen eligibility problems which can reasonably be
expected to be resolved within the extension period, or
(2) The veteran has made specific arrangements for private payment
for such care, and
(i) Such arrangements cannot be effectuated as planned because of
unforeseen, unavoidable difficulties, such as a temporary obstacle to
liquidation of property, and
(ii) Such difficulties can reasonably be expected to be resolved
within the extension period; or
(3) The veteran is terminally ill and life expectancy has been
medically determined to be less than six months.
(4) In no case may an extension under paragraph (d)(1) or (2) of this
section exceed 45 days.
(Authority: 38 U.S.C. 501; 1720(a))
(47 FR 58246, Dec. 30, 1982, as amended at 55 FR 11370, Mar. 28,
1990)
17.39 (Reserved)
38 CFR 17.42 Additional services for indigents.
In addition to the usual medical services agreed upon between the
governments of the United States and the Republic of the Philippines to
be made available to patients for whom the Department of Veterans
Affairs has authorized care at the Veterans Memorial Medical Center, any
such patient determined by the U.S. Department of Veterans Affairs to be
indigent or without funds may be furnished toilet articles and barber
services, including haircutting and shaving necessary for hygienic
reasons.
(33 FR 5299, Apr. 3, 1968, as amended at 47 FR 58247, Dec. 30, 1982)
38 CFR 17.42 Examinations and Observation and Examination
38 CFR 17.45 Persons entitled to hospital observation and physical
examination.
Hospitalization for observation and physical (including mental)
examination may be effected when requested by an authorized official, or
when found necessary in examination of the following persons:
(a) Claimants or beneficiaries of VA for purposes of disability
compensation, pension, participation in a rehabilitation program under
38 U.S.C. chapter 31, and Government insurance. (38 U.S.C. 1711(a))
(b) Claimants or beneficiaries referred to a diagnostic center for
study to determine the clinical identity of an obscure disorder.
(c) Employees of the Department of Veterans Affairs when necessary to
determine their mental or physical fitness to perform official duties.
(d) Claimants or beneficiaries of other Federal agencies:
(1) Department of Justice -- plaintiffs in Government insurance
suits.
(2) United States Civil Service Commission -- annuitants or
applicants for retirement annuity, and such examinations of prospective
appointees as may be requested.
(3) Office of Workers' Compensation Programs -- to determine
identity, severity, or persistence of disability.
(4) Railroad Retirement Board -- applicants for annuity under Public
No. 162, 75th Congress.
(5) Other Federal agencies.
(e) Pensioners of nations allied with the United States in World War
I and World War II, upon authorization from accredited officials of the
respective governments.
(13 FR 7156, Nov. 27, 1948, as amended at 16 FR 12091, Nov. 30, 1951;
19 FR 6716, Oct. 19, 1954; 32 FR 13813, Oct. 4, 1967; 39 FR 32606,
Sept. 10, 1974; 49 FR 5616, Feb. 14, 1984)
38 CFR 17.45a Examinations on an outpatient basis.
Physical examinations on an outpatient basis may be furnished to
applicants who have been tentatively determined to be eligible for
Department of Veterans Affairs hospital or domiciliary care to determine
their need for such care and to the same categories of persons for whom
hospitalization for observation and examination may be authorized under
17.45.
(35 FR 6586, Apr. 24, 1970)
38 CFR 17.45a Hospital, Domiciliary and Nursing Home Care
38 CFR 17.46 Persons entitled to hospital or domiciliary care.
Hospital or domiciliary care may be provided:
(a) Subject to the provisions of 17.46b through 17.48, for persons
eligible as veterans or on the basis of service in the uniformed
services.
(b) Not subject to the eligibility provisions of 17.46b through
17.48, for:
(1) Persons in the Armed Forces when duly referred with authorization
therefor, may be furnished hospital care. Emergency treatment may be
rendered, without obtaining formal authorization, to such persons upon
their own application, when absent from their commands. Identification
of active duty members of the uniformed services will be made by
military identification card.
(2) Hospital care may be provided, upon authorization, for
beneficiaries of the Public Health Service, Office of Workers'
Compensation Programs, and other Federal agencies.
(3) Pensioners of nations allied with the United States in World War
I and World War II may be supplied hospital care when duly authorized.
(c) Emergency hospital care may be provided for:
(1) Persons having no eligibility, as a humanitarian service.
(2) Persons admitted because of presumed discharge or retirement from
the Armed Forces, but subsequently found to be ineligible as such.
(3) Employees (not potentially eligible as ex-members of the Armed
Forces) and members of their families, when residing on reservations of
field facilities of the Department of Veterans Affairs, and when they
cannot feasibly obtain emergency treatment from private facilities.
(d) Hospital care when incidental to, and to the extent necessary
for, the use of a specialized Department of Veterans Affairs medical
resource pursuant to a sharing agreement entered into under 17.210, may
be authorized for any person designated by the other party to the
agreement as a patient to be benefited under the agreement.
(e) The authorization of services under any provision of this
section, except services for eligible veterans, is subject to charges as
required by 17.62.
(23 FR 6498, Aug. 22, 1958, as amended at 24 FR 8327, Oct. 14, 1959;
32 FR 6841, May 4, 1967; 34 FR 9340, June 13, 1969; 35 FR 6586, Apr.
24, 1970; 39 FR 32606, Sept. 10, 1974)
38 CFR 17.46a Hospital and nursing home care for Commonwealth Army
Veterans and New Philippine Scouts.
Hospital and nursing home care may be furnished to Commonwealth Army
Veterans and New Philippine Scouts within the limits of facilities in
the United States over which the Secretary has direct jurisdiction or
other Government facilities with which the Secretary contracts, for
service-connected disabilities.
(Authority: 38 U.S.C. 1734)
(47 FR 58247, Dec. 30, 1982)
38 CFR 17.46b Hospital care for certain retirees with chronic
disability (Executive Orders 10122, 10400 and 11733).
Hospital care may be furnished when beds are available to members or
former members of the uniformed services (Army, Navy, Air Force, Marine
Corps, Coast Guard, Coast and Geodetic Survey, now National Oceanic and
Atmospheric Administration hereinafter referred to as NOAA, and Public
Health Service) temporarily or permanently retired for physical
disability or receiving disability retirement pay who require hospital
care for chronic diseases and who have no eligibility for hospital care
under laws governing the Department of Veterans Affairs, or who having
eligibility do not elect hospitalization as Department of Veterans
Affairs beneficiaries. Care under this section is subject to the
following conditions:
(a) Persons defined in this section who are members or former members
of the active military, naval, or air service must agree to pay the
subsistence rate set by the Secretary of Veterans Affairs, except that
no subsistence charge will be made for those persons who are members or
former members of the Public Health Service, Coast Guard, Coast and
Geodetic Survey now NOAA, and enlisted personnel of the Army, Navy,
Marine Corps, and Air Force.
(b) Under this section, the term chronic diseases shall include
chronic arthritis, malignancy, psychiatric disorders, poliomyelitis with
residuals, neurological disabilities, diseases of the nervous system,
severe injuries to the nervous system, including quadriplegia,
hemiplegia and paraplegia, tuberculosis, blindness and deafness
requiring definitive rehabilitation, disability from major amputation,
and other diseases as may be agreed upon from time to time by the Chief
Medical Director and designated officials of the Department of Defense
and Department of Health and Human Services. For the purpose of this
section, blindness is defined as corrected visual acuity of 20/200 or
less in the better eye, or corrected central visual acuity of more than
20/200 if there is a field defect in which the peripheral field has
contracted to such an extent that its widest diameter subtends the
widest diameter of the field of the better eye at an angle no greater
than 20 .
(c) In the case of persons who are former members of the Coast and
Geodetic Survey, care may be furnished under this section even though
their retirement for disability was from the Environmental Science
Services Administration or NOAA.
(34 FR 9340, June 13, 1969, as amended at 39 FR 1841, Jan. 15, 1974;
47 FR 58247, Dec. 30, 1982)
38 CFR 17.46c Hospital care for research purposes.
Subject to the provisions of 17.62(g), any person who is a bona fide
volunteer may be admitted to a Department of Veterans Affairs hospital
when the treatment to be rendered is part of an approved Department of
Veterans Affairs research project and there are insufficient
veteran-patients suitable for the project.
(35 FR 11470, July 17, 1970)
38 CFR 17.47 Eligibility for hospital, domiciliary or nursing home care
of persons discharged or released from active military, naval, or air
service.
(a) Hospital care shall be furnished and nursing home care may be
furnished when needed to:
(1) A veteran who has a service-connected disability, for any
disability;
(2) A veteran whose discharge or release from the active military,
naval, or air service was for a disability incurred or aggravated in
line of duty for any disability;
(3) A veteran who is in receipt of, or, but for a suspension pursuant
to 38 U.S.C. 1151 (or both such a suspension and the receipt of retired
pay), would be entitled to disability compensation, but only to the
extent that such veteran's continuing eligibility for such care is
provided for in the judgment or settlement described in such section,
for any disability;
(Authority: Pub. L. 99-576)
(4) A veteran who is a former prisoner of war, for any disability;
(5) A veteran exposed to a toxic substance or radiation as authorized
in 38 U.S.C. 1710(e);
(6) A veteran of the Spanish-American War, the Mexican border period,
or World War I, for any disability; and
(7) A veteran for a nonservice-connected disability if the veteran is
unable to defray the expenses of necessary care as determined under
17.48(d)(1).
(Authority: 38 U.S.C. 1710, 1722; sec. 19011, Pub. L. 99-272)
(b) In furnishing hospital care under paragraph (a) of this section,
VA officials shall:
(1) If the veteran is in immediate need of hospitalization, furnish
care at VA facility where the veteran applies or, if that facility is
incapable of furnishing care, arrange to admit the veteran to the
nearest VA medical center, or Department of Defense hospital with which
VA has a sharing agreement under 38 U.S.C. 8111, which is capable of
providing the needed care, or if VA or DOD facilities are not available,
arrange for care on a contract basis if authorized by 17.50(b); or
(2) If the veteran needs non-immediate hospitalization, schedule the
veteran for admission at VA facility where the veteran applies, if the
schedule permits, or refer the veteran for admission or scheduling for
admission at the nearest VA medical center, or Department of Defense
facility with which VA has a sharing agreement under 38 U.S.C. 8111.
(Authority: 38 U.S.C. 1703, 1710; secs. 19011-19012, Pub. L.
99-272)
(c) To the extent resources and facilities are available, the Chief
Medical Director may furnish needed hospital and nursing home care in VA
facilities to a veteran for a nonservice-connected disability if the
veteran is eligible for care as determined under 17.48(d)(2).
(Authority: 38 U.S.C. 1710, 1722; sec. 19011, Pub. L. 99-272)
(d) To the extent resources and facilities are otherwise available
and are not otherwise required to assure that VA can furnish needed care
to veterans described in paragraph (a) or (c) of this section, the Chief
Medical Director may furnish needed hospital and nursing home care in VA
facilities to a veteran who is not described in paragraph (a) or (c) of
this section for any disability if the veteran agrees to pay to the
United States an amount as determined in 17.48(e).
(Authority: 38 U.S.C. 1710; sec. 19011, Pub. L. 99-272)
(e) Domiciliary care may be furnished when needed to:
(1) Any veteran whose annual income does not exceed the maximum
annual rate of pension payable to a veteran in need of regular aid and
attendance, or
(2) Any veteran who the Secretary determines had no adequate means of
support. An additional requirement for eligibility for domiciliary care
is the ability of the veteran to perform the following:
(i) Perform without assistance daily ablutions, such as brushing
teeth; bathing; combing hair; body eliminations.
(ii) Dress self, with a minimum of assistance.
(iii) Proceed to and return from the dining hall without aid.
(iv) Feed Self.
(v) Secure medical attention on an ambulatory basis or by use of
personally propelled wheelchair.
(vi) Have voluntary control over body eliminations or control by use
of an appropriate prosthesis.
(vii) Share in some measure, however slight, in the maintenance and
operation of the facility.
(viii) Make rational and competent decisions as to his or her desire
to remain or leave the facility.
(Authority: 38 U.S.C. 1710(b), sec. 102, Pub. L. 100-322)
(24 FR 8328, Oct. 4, 1959, as amended at 30 FR 1787, Feb. 9, 1965;
32 FR 13813, Oct. 4, 1967; 34 FR 9340, June 13, 1969; 39 FR 1841, Jan.
15, 1974; 45 FR 6935, Jan. 31, 1980; 51 FR 25064, July 10, 1986; 52
FR 11259, Apr. 8, 1987; 53 FR 9627, Mar. 24, 1988; 53 FR 32391, Aug.
25, 1988; 56 FR 5757, Feb. 13, 1991)
38 CFR 17.48 Considerations applicable in determining eligibility for
hospital, nursing home or domiciliary care.
(a)(1) For applicants discharged or released for disability incurred
or aggravated in line of duty and who are not in receipt of compensation
for service-connected or service-aggravated disability, the official
records of the Armed Forces relative to findings of line of duty for its
purposes will be accepted in determining eligibility for hospital care.
Where the official records of the Armed Forces show a finding of
disability not incurred or aggravated in line of duty and evidence is
submitted to the Department of Veterans Affairs which permits of a
different finding, the decision of the Armed Forces will not be binding
upon the Department of Veterans Affairs, which will be free to make its
own determination of line of duty incurrence or aggravation upon
evidence so submitted. It will be incumbent upon the applicant to
present controverting evidence and, until such evidence is presented and
a determination favorable to the applicant is made by the Department of
Veterans Affairs, the finding of the Armed Forces will control and
hospital care will not be authorized. Such controverting evidence, when
received from an applicant, will be referred to the adjudicating agency
which would have jurisdiction if the applicant was filing claim for
pension or disability compensation, and the determination of such agency
as to line of duty, which is promptly to be communicated to the head of
the field facility receiving the application for hospital care, will
govern the facility Director's disapproval or approval of admission,
other eligibility requirements having been met. Where the official
records of the Armed Forces show that the disability for which a veteran
was discharged or released from the Armed Forces under other than
dishonorable conditions was incurred or aggravated in the line of duty,
such showing will be accepted for the purpose of determining his or her
eligibility for hospitalization, notwithstanding the fact that the
Department of Veterans Affairs has made a determination in connection
with a claim for monetary benefits that the disability was incurred or
aggravated not in line of duty.
(2) In those exceptional cases where the official records of the
Armed Forces show discharge or release under other than dishonorable
conditions because of expiration of period of enlistment or any other
reason except disability, but also show a disability incurred or
aggravated in line of duty during the said enlistment; and the
disability so recorded is considered in medical judgment to be or to
have been of such character, duration, and degree as to have justified a
discharge or release for disability had the period of enlistment not
expired or other reason for discharge or release been given, the Chief
Medical Director, upon consideration of a clear, full statement of
circumstances, is authorized to approve admission of the applicant for
hospital care, provided other eligibility requirements are met. A
typical case of this kind will be one where the applicant was under
treatment for the said disability recorded during his or her service at
the time discharge or release was given for the reason other than
disability.
(b)(1) Under 17.47(a), veterans who are receiving disability
compensation awarded under 3.800 of this chapter, where a disease,
injury or the aggravation of an existing disease or injury occurs as a
result of VA examination, medical or surgical treatment, or of
hospitalization in a VA health care facility or of participation in a
rehabilitation program under 38 U.S.C. ch. 31, under any law
administered by VA and not the result of his/her own willful misconduct.
Treatment may be provided for the disability for which the compensation
is being paid or for any other disability. Treatment under the
authority of 17.47(a) may not be authorized during any period when
disability compensation under 3.800 of this title is not being paid
because of the provision of 3.800(a)(2), except to the extent
continuing eligibility for such treatment is provided for in the
judgment for settlement described in 3.800(a)(2) of this title.
(Authority: 38 U.S.C. 1710(a); sec. 701, Pub. L. 98-160, Pub. L.
99-272)
(2) For purposes of eligibility for domiciliary care, the phrase no
adequate means of support refers to an applicant for domiciliary care
whose annual income exceeds the annual rate of pension for a veteran in
receipt of regular aid and attendance, as defined in 38 U.S.C. 1503, but
who is able to demonstrate to competent VA medical authority, on the
basis of objective evidence, that deficits in health and/or functional
status render the applicant incapable of pursuing substantially gainful
employment, as determined by the Chief of Staff, and who is otherwise
without the means to provide adequately for self, or be provided for in
the community.
(Authority: 38 U.S.C. 1710(a); sec. 701, Pub. L. 98-160, Pub. L.
99-272)
(c) A disability, disease, or defect will comprehend any acute,
subacute, or chronic disease (or a general medical, tuberculous, or
neuropsychiatric type) of any acute, subacute, or chronic surgical
condition susceptible of cure or decided improvement by hospital care;
or any condition which does not require hospital care for an acute or
chronic condition but requires domiciliary care. Domiciliary care, as
the term implies, is the provision of a home, with such ambulant medical
care as is needed. To be provided with domiciliary care, the applicant
must consistently have a disability, disease, or defect which is
essentially chronic in type and is producing disablement of such degree
and probable persistency as will incapacitate from earning a living for
a prospective period.
(Authority: 38 U.S.C. 1701, 1710)
(d)(1) For purposes of determining eligibility for hospital or
nursing home care under 17.47(a), a veteran will be determined unable
to defray the expenses of necessary care if the veteran agrees to
provide verifiable evidence, as determined by the Secretary, that:
(i) The veteran is eligible to receive medical assistance under a
State plan approved under title XIX of the Social Security Act;
(Authority: 42 U.S.C. 1396 et seq.)
(ii) The veteran is in receipt of pension under 38 U.S.C. 1521; or
(iii) The veteran's attributable income does not exceed $15,000 if
the veteran has no dependents, $18,000 if the veteran has one dependent,
plus $1,000 for each additional dependent.
(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)
(2) For purposes of determining eligibility for hospital or nursing
home care under 17.47(c), a veteran will be determined eligible for
necessary care if the veteran agrees to provide verifiable evidence, as
determined by the Secretary, that: The veteran's attributable income
does not exceed $20,000 if the veteran has no dependents, $25,000 if the
veteran has one dependent, plus $1,000 for each additional dependent.
(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)
(3) Effective on January 1 of each year after calendar year 1986, the
amounts set forth in paragraph (d)(1) and (2) of this section shall be
increased by the percentage by which the maximum rates of pension were
increased under 38 U.S.C. 1111(a), during the preceding year.
(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)
(4) Determinations with respect to attributable income made under
paragraph (d)(1) and (2) of this section, shall be made in the same
manner, including the same sources of income and exclusions from income,
as determinations with respect to income are made for determining
eligibility for pension under 3.271 and 3.272 of this title. The term
attributable income means income of a veteran for the calendar year
preceding application for care, determined in the same manner as the
manner in which a determination is made of the total amount of income by
which the rate of pension for such veteran under 38 U.S.C. 1521 would be
reduced if such veteran were eligible for pension under that section.
(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)
(5) Notwithstanding the attributable income of a veteran, VA may
determine that such veteran is not eligible under paragraph (d)(1) and
(2) of this section if the corpus of the estate of the veteran is such
that under all the circumstances it is reasonable that some part of the
corpus of the estate of the veteran be consumed for the veteran's
maintenance. The corpus of the estate of a veteran shall be determined
in the same manner as determinations are made with respect to the
determinations of eligibility for pension under 3.275 of this chapter.
The term corpus of the estate of the veteran includes the corpus of the
estates of the veteran's spouse and dependent children, if any.
(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)
(6) In order to avoid hardship VA may determine that a veteran is
eligible for care notwithstanding that the veteran does not meet the
income requirements established in paragraph (d)(1)(iii) or (d)(2) of
this section, if projections of the veteran's income for the year
following application for care are substantially below the income
requirements established in paragraph (d)(1)(iii) or (d)(2) of this
section.
(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)
(e)(1) A veteran who received hospital or nursing home care under
17.47(d) shall be liable to the U.S., for each 90 days of care in a
365-day period, for an amount equal to the lesser of:
(i) The cost of furnishing such care, as determined by the Chief
Medical Director, and
(ii) In the case of hospital care, the amount of the inpatient
Medicare deductible for the first 90 day period, and one-half that
amount for each successive 90 day period, and in the case of nursing
home care, the amount of the inpatient Medicare deductible for each 90
day period.
(Authority: 38 U.S.C. 1722, sec. 19011, Pub. L. 99-272)
(2) If a veteran pays, or agrees to pay the inpatient Medicare
deductible in connection with either hospital or nursing home care, and
before using 90 days of such care begins receiving the other mode of
care (hospital or nursing home) in a 365 day period, the veteran will
not be required to make any payment for the second mode of care until
either:
(i) The number of days of hospital or nursing home care combined
exceeds 90 days, or
(ii) The beginning of the next 365 day period, whichever occurs
first.
If the veteran pays an amount equal to one-half of the inpatient
Medicare deductible in connection with receiving hospital care, and
before using 90 days of such care within the 365 day period, receives VA
nursing home care, the veteran will be required to pay one-half of the
inpatient Medicare deductible in connection with the number of days of
nursing home care that, when added to the days of hospital care, do not
exceed 90 days within the 365 day period.
(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)
(3) A veteran who receives outpatient care under 17.60(e) or (f) by
virtue of the veteran's eligibility for hospital care under 17.47(d)
shall be liable to the United States for each outpatient visit for an
amount equal to 20 percent of the average cost of an outpatient visit to
a VA facility during the fiscal year in which the treatment is
furnished, except that in any 90 day period in a 365 day period, the
total amount of deductibles paid for multiple outpatient visits shall
not exceed the amount of the inpatient Medicare deductible in effect at
the beginning of the 365 day period.
(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)
(4) A veteran who receives any combination of hospital, nursing home,
or outpatient care in any 90 day period in a 365 day period shall not be
required to pay an amount greater than the inpatient Medicare deductible
for care received during that 90 day period.
(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)
(5) The term inpatient Medicare deductible means the amount of the
inpatient hospital deductible in effect under 42 U.S.C. 1813(b) on the
first day of any 365 day period referred to in this paragraph.
(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)
(6) If VA determines that an individual was incorrectly charged a
copayment, VA will refund the amount of any copayment actually paid by
that individual.
(Authority: 38 U.S.C. 501; sec. 19011, Pub. L. 99-272)
(7) In the event a veteran provided inaccurate information on an
application and is incorrectly deemed eligible for care under 17.47 (a)
or (c), rather than 17.47(d), VA shall retroactively bill the veteran
for the applicable copayment.
(Authority: 38 U.S.C. 501 and 1710; sec. 19011, Pub. L. 99-272)
(8) A veteran who receives any combination of hospital, nursing home
or outpatient care shall not be required to pay an amount greater than
four times the amount of the inpatient Medicare deductible during any
365-day period.
(Authority: Pub. L. 99-576, sec. 237)
(f) If a veteran who receives hospital or nursing home care under
17.47(d), or outpatient care under 17.60 (e) or (f) by virtue of the
veteran's eligibility for hospital care under 17.47(d), fails to pay to
the United States the amounts agreed to under those sections shall be
grounds for determining, in accordance with guidelines promulgated by
the Chief Medical Director, that the veteran is not eligible to receive
further care under those sections until such amounts have been paid in
full.
(Authority: 38 U.S.C. 1710, 1721; sec. 19011, Pub. L. 99-272)
(g)(1) Persons hospitalized who have no service-connected
disabilities pursuant to 17.47, and/or persons receiving outpatient
medical services pursuant to paragraphs (e), (f), (i), (j), and/or (k)
of 17.60 who have no service-connected disabilities who it is believed
may be entitled to hospital care and/or medical services, or
reimbursement for the expenses of care or services for all or part of
the cost thereof by reason of the following:
(i) Membership in a union, fraternal or other organization, or
(ii) Coverage under an insurance policy, or contract, medical, or
hospital service agreement, membership, or subscription contract or
similar arrangement under which health services for individuals are
provided or the expenses of such services are paid, will not be
furnished hospital care or medical services without charge therefore to
the extent of the amount for which such parties referred to in
paragraphs (g)(1)(i) or (g)(1)(ii) of this section, are, will become, or
may be liable. Persons believed entitled to care under any of the plans
discussed above will be required to provide such information as the
Secretary may require. Provisions of this paragraph are effective April
7, 1986, except in the case of a health care policy or contract that was
entered into before that date, the effective date shall be the day after
the plan was modified or renewed or on which there was any change in
premium or coverage and will apply only to care and services provided by
VA after the date the plan was modified, renewed, or on which there was
any change in premium or coverage.
(Authority: 38 U.S.C. 1729; sec. 19013, Pub. L. 99-272)
(2) Persons hospitalized for the treatment of nonservice-connected
disabilities pursuant to 17.47, or persons receiving outpatient medical
services pursuant to paragraph (e), (f), (h), (i), (j), or (k) of
17.60, and who it is believed may be entitled to hospital care and/or
medical services or to reimbursement for all or part of the cost thereof
from any one or more of the following parties:
(i) Workers' Compensation or employer's liability statutes, State or
Federal;
(ii) By reason of statutory or other relationships with third
parties, including those liable for damages because of negligence or
other legal wrong;
(iii) By reason of a statute in a State, or political subdivision of
a State;
(A) Which requires automobile accident reparations or;
(B) Which provides compensation or payment for medical care to
victims suffering personal injuries as the result of a crime of personal
violence;
(iv) Right to maintenance and cure in admiralty;
will not be furnished hospital care or medical services without
charge therefore to the extent of the amount for which such parties are,
will become, or may be liable. Persons believed entitled to care under
circumstances described in paragraph (g)(2)(ii) of this section will be
required to complete such forms as the Secretary may require, such as a
power of attorney and assignment. Notice of this assignment will be
mailed promptly to the party or parties believed to be liable. When the
amount of charges is ascertained, a bill therefore will be mailed to
such party or parties. Persons believed entitled to care under
circumstances described in paragraph (g)(2)(i) or (g)(2)(iii) of this
section will be required to complete such forms as the Secretary may
require.
(Authority: 38 U.S.C. 1729, sec. 19013, Pub. L. 99-272)
(h) Women veterans will not be entitled to hospital care for
pregnancy and parturition unless it is complicated by a pathological
condition.
(i) Within the limits of Department of Veterans Affairs facilities,
any veteran who is receiving hospital or nursing home care in a hospital
under the direct jurisdiction of the Department of Veterans Affairs, or
hospital care in a Federal hospital under agreement, may be furnished
medical services to correct or treat any nonservice-connected disability
of such veteran, in addition to treatment incident to the disability for
which the veteran is hospitalized, if the veteran is willing, and such
services are reasonably necessary to protect the health of such veteran.
(j) Participating in a rehabilitation program under 38 U.S.C.
chapter 31 refers to any veteran
(1) Who is eligible for and entitled to participate in a
rehabilitation program under chapter 31.
(i) Who is in an extended evaluation period for the purpose of
determining feasibility, or
(ii) For whom a rehabilitation objective has been selected, or
(iii) Who is pursuing a rehabilitation program, or
(iv) Who is pursuing a program of independent living, or
(v) Who is being provided employment assistance under 38 U.S.C.
chapter 31, and
(2) Who is medically determined to be in need of hospital care or
medical services (including dental) for any of the following reasons:
(i) Make possible his or her entrance into a rehabilitation program;
or
(ii) Achieve the goals of the veteran's vocational rehabilitation
program; or
(iii) Prevent interruption of a rehabilitation program; or
(iv) Hasten the return to a rehabilitation program of a veteran in
interrupted or leave status; or
(v) Hasten the return to a rehabilitation program of a veteran placed
in discontinued status because of illness, injury or a dental condition;
or
(vi) Secure and adjust to employment during the period of employment
assistance; or
(vii) To enable the veteran to achieve maximum independence in daily
living.
(Authority: 38 U.S.C. 3104(a)(9); Pub. L. 96-466, sec. 101(a))
(k) Veterans eligible for treatment under chapter 17 of 38 U.S.C.
who are alcohol or drug abusers or who are infected with the human
immunodeficiency virus (HIV) shall not be discriminated against in
admission or treatment by any Department of Veterans Affairs health care
facility solely because of their alcohol or drug abuse or dependency or
because of their viral infection. This does not preclude the rule of
clinical judgment in determining appropriate treatment which takes into
account the patient's immune status and/or the infectivity of the HIV or
other pathogens (such as tuberculosis, cytemegalovirus,
cryptosporidiosis, etc.). Hospital Directors are responsible for
assuring that admission criteria of all programs in the medical center
do not discriminate solely on the basis of alcohol, drug abuse or
infection with human immunodeficiency virus. Quality Assurance Programs
should include indicators and monitors for nondiscrimination.
(Authority: 38 U.S.C. 7333)
(l) In seeking medical care from VA under 17.47 or 17.60, a veteran
shall furnish such information and evidence as the Secretary may require
to establish eligibility.
(Authority: 38 U.S.C. 1722; sec. 19011, Pub. L. 99-272)
(32 FR 13813, Oct. 4, 1967)
Editorial Note: For Federal Register citations affecting 17.48, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
38 CFR 17.49 Priorities for inpatient care.
The Chief Medical Director may establish priorities for admission to
hospital, nursing home, and domiciliary care consistent with 17.47 to
facilitate management of VA health care facilities and to help assure
prompt delivery of care.
(Authority: 38 U.S.C. 501 and 1721)
(51 FR 25066, July 10, 1986)
38 CFR 17.49 Use of Department of Defense, Public Health Service or Other Federal Hospitals
38 CFR 17.50 Use of Department of Defense, Public Health Service or
other Federal hospitals with beds allocated to the Department of
Veterans Affairs.
Hospital facilities operated by the Department of Defense or the
Public Health Service (or any other agency of the United States
Government) may be used for the care of Department of Veterans Affairs
patients pursuant to agreements between the Department of Veterans
Affairs and the department or agency operating the facility. When such
an agreement has been entered into and a bed allocation for Department
of Veterans Affairs patients has been provided for in a specific
hospital covered by the agreement, care may be authorized within the bed
allocation for any veteran eligible under 17.47. Care in a Federal
facility not operated by the Department of Veterans Affairs, however,
shall not be authorized for any military retiree whose sole basis for
eligibility is under 17.46b, or, except in Alaska and Hawaii, for any
retiree of the uniformed services suffering from a chronic disability
whose entitlement is under 17.46b, 17.47(b)(2) or 17.47(c)(2)
regardless of whether he or she may have dual eligibility under other
provisions of 17.47.
(39 FR 1842, Jan. 15, 1974, as amended at 45 FR 6936, Jan. 31, 1980)
38 CFR 17.50a Emergency use of Department of Defense, Public Health
Service or other Federal hospitals.
Hospital care in facilities operated by the Department of Defense or
the Public Health Service (or any other agency of the U.S. Government)
which do not have beds allocated for the care of Department of Veterans
Affairs patients may be authorized subject to the limitations enumerated
in 17.50 only in emergency circumstances for any veteran otherwise
eligible for hospital care under 17.47.
(33 FR 19010, Dec. 20, 1968)
38 CFR 17.50a Use of Public or Private Hospitals
38 CFR 17.50b Hospital care and medical services in non-VA facilities.
(a) When VA facilities or other government facilities are not capable
of furnishing economical hospital care or medical services because of
geographic inaccessibility or are not capable of furnishing care or
services required, VA may contract with non-VA facilities for care in
accordance with the provisions of this section. When demand is only for
infrequent use, individual authorizations may be used. Care in public
or private facilities, however, subject to the provisions of 17.50c
through f, will only be authorized, whether under a contract or an
individual authorization, for
(1) Hospital care or medical services to a veteran for the treatment
of --
(i) A service-connected disability; or
(ii) A disability for which a veteran was discharged or released from
the active military, naval, or air service or
(iii) A disability of a veteran who has a total disability permanent
in nature from a service-connected disability, or
(iv) For a disability associated with and held to be aggravating a
service-connected disability, or
(v) For any disability of a veteran participating in a rehabilitation
program under 38 U.S.C. ch. 31 and when there is a need for hospital
care or medical services for any of the reasons enumerated in 17.48(j).
(Authority: 38 U.S.C. 1703, 3104; sec. 101, Pub. L. 96-466; sec.
19012, Pub. L. 99-272)
(2) Medical services for the treatment of any disability of --
(i) A veteran who has a service-connected disability rated at 50
percent or more,
(ii) A veteran who has received VA inpatient care for treatment of
nonservice-connected conditions for which treatment was begun during the
period of inpatient care. The treatment period (to include care
furnished in both facilities of VA and non-VA facilities or any
combination of such modes of care) may not continue for a period
exceeding 12 months following discharge from the hospital except when it
is determined that a longer period is required by virtue of the
disabilities being treated, and
(iii) A veteran of the Mexican border period or World War I or who is
in receipt of increased pension or additional compensation based on the
need for aid and attendance or housebound benefits when it has been
determined based on an examination by a physician employed by VA (or, in
areas where no such physician is available, by a physician carrying out
such function under a contract or fee arrangement), that the medical
condition of such veteran precludes appropriate treatment in VA
facilities;
(Authority: 38 U.S.C. 1703; sec. 19012, Pub. L. 99-272)
(3) Hospital care or medical services for the treatment of medical
emergencies which pose a serious threat to the life or health of a
veteran receiving hospital care or medical services in a facility over
which the Secretary has direct jurisdiction or government facility with
which the Secretary contracts, and for which the facility is not staffed
or equipped to perform, and transfer to a public or private hospital
which has the necessary staff or equipment is the only feasible means of
providing the necessary treatment, until such time following the
furnishing of care in the non-VA facility as the veteran can be safely
transferred to a VA facility;
(Authority: 38 U.S.C. 1703; sec. 19012, Pub. L. 99-272)
(4) Hospital care for women veterans;
(Authority: 38 U.S.C. 1703; sec. 19012, Pub. L. 99-272)
(5) Through September 30, 1988, hospital care or medical services
that will obviate the need for hospital admission for veterans in the
Commonwealth of Puerto Rico, except that the dollar expenditure in
Fiscal year 1986 cannot exceed 85% of the Fiscal year 1985 obligations,
in Fiscal year 1987 the dollar expenditure cannot exceed 50% of the
Fiscal year 1985 obligations and in Fiscal year 1988 the dollar
expenditure cannot exceed 25% of the Fiscal year 1985 obligations.
(Authority: 38 U.S.C. 1703; sec. 102, Pub. L. 99-166; sec. 19012,
Pub. L. 99-272)
(6) Hospital care or medical services that will obviate the need for
hospital admission for veterans in Alaska, Hawaii, Virgin Islands and
other territories of the United States except that the annually
determined hospital patient load and incidence of the furnishing of
medical services to veterans hospitalized or treated at the expense of
VA in government and non-VA facilities in each such State or territory
shall be consistent with the patient load or incidence of the provision
of medical services for veterans hospitalized or treated by VA within
the 48 contiguous States.
(Authority: 38 U.S.C. 1703; sec. 19012, Pub. L. 99-272)
(7) Outpatient dental services and treatment, and related dental
appliances, for a veteran who is a former prisoner of war and was
detained or interned for a period of not less that 181 days.
(Authority: 38 U.S.C. 1703; sec. 19012, Pub. L. 99-272)
(8) Hospital care or medical services for the treatment of medical
emergencies which pose a serious threat to the life or health of a
veteran which developed during authorized travel to the hospital, or
during authorized travel after hospital discharge preventing completion
of travel to the originally designated point of return (and this will
encompass any other medical services necessitated by the emergency,
including extra ambulance or other transportation which may also be
furnished at VA expense.
(Authority: 38 U.S.C. 1701(5))
(9) Diagnostic services necessary for determination of eligibility
for, or of the appropriate course of treatment in connection with,
furnishing medical services at independent VA outpatient clinics to
obviate the need for hospital admission.
(Authority: 38 U.S.C. 1703; sec. 19012, Pub. L. 99-272)
(10) For any disability of a veteran receiving VA contract nursing
home care. The veteran is receiving contract nursing home care and
requires emergency treatment in non-VA facilities.
(Authority: 38 U.S.C. 1703(a))
(11) For completion of evaluation for observation and examination
(O&E) purposes, clinic directors or their designees will authorize
necessary diagnostic services at non-VA facilities (on an inpatient or
outpatient basis) in order to complete requests from VA Regional Offices
for O&E of a person to determine eligibility for VA benefits or
services.
(b) The Chief Medical Director shall only furnish care and treatment
under paragraph (a) of this section to veterans described in 17.47(d).
(1) To the extent that resources are available and are not otherwise
required to assure that VA can furnish needed care and treatment to
veterans described in 17.47 (a) and (c), and
(2) If the veteran agrees to pay the United States an amount as
determined in 17.48(e).
(Authority: 38 U.S.C. 1703, 1710 and 1712; sec. 19011-19012, Pub.
L. 99-272)
(51 FR 25066, July 10, 1986, as amended at 53 FR 32391, Aug. 25,
1988; 54 FR 53057, Dec. 27, 1989; 58 FR 32446, June 10, 1993)
38 CFR 17.50c Limitations on use of public or private hospitals.
The admission of any patient to a private or public hospital at
Department of Veterans Affairs expense will only be authorized if a
Department of Veterans Affairs medical center or other Federal facility
to which the patient would otherwise be eligible for admission is not
feasibly available. A Department of Veterans Affairs facility may be
considered as not feasibly available when the urgency of the applicant's
medical condition, the relative distance of the travel involved, or the
nature of the treatment required makes it necessary or economically
advisable to use public or private facilities. In those instances where
care in public or private hospitals at Department of Veterans Affairs
expense is authorized because a Department of Veterans Affairs or other
Federal facility was not feasibly available, as defined in this section,
the authorization will be continued after admission only for the period
of time required to stabilize or improve the patient's condition to the
extent that further care is no longer required to satisfy the purpose
for which it was initiated.
(39 FR 17223, May 14, 1974, as amended at 47 FR 58248, Dec. 30, 1982)
38 CFR 17.50d Necessity for prior authorization.
(a) The admission of a veteran to a non-Department of Veterans
Affairs hospital at Department of Veterans Affairs expense must be
authorized in advance. In the case of an emergency which existed at the
time of admission, an authorization may be deemed a prior authorization
if an application, whether formal or informal, by telephone, telegraph
or other communication, made by the veteran or by others in his or her
behalf is dispatched to the Department of Veterans Affairs (1) for
veterans in the 48 contiguous States and Puerto Rico, within 72 hours
after the hour of admission, including in the computation of time
Saturday, Sunday and holidays, or (2) for veterans in a noncontiguous
State, territory or possession of the United States (not including
Puerto Rico) if facilities for dispatch of application as described in
this section are not available within the 72-hour period, provided the
application was filed within 72 hours after facilities became available.
(b) When an application for admission by a veteran in one of the 48
contiguous States in the United States or in Puerto Rico has been made
more than 72 hours after admission, or more than 72 hours after
facilities are available in a noncontiguous State, territory of
possession of the United States, authorization for continued care at
Department of Veterans Affairs expense shall be effective as of the
postmark or dispatch date of the application, or the date of any
telephone call constituting an informal application.
(42 FR 55212, Oct. 14, 1977)
38 CFR 17.50e Use of hospitals under sharing agreements.
Hospital care in a Federal, State or local, public or private
hospital facility may be authorized for any veteran entitled to hospital
care under 17.47 when such care requires the use of a specialized
medical resource made available by that facility pursuant to an
agreement for sharing specialized medical resources.
(Authority: 38 U.S.C. 8153)
(47 FR 58248, Dec. 30, 1982)
38 CFR 17.50f Payment for authorized public or private hospital care.
Except as otherwise provided in this section, payment for public or
private hospital care authorized under 17.50b of this part shall be
based on a prospective payment system similar to that used in the
Medicare program for paying for similar inpatient hospital services in
the community. Payment shall be made using the Health Care Financing
Administration (HCFA) PRICER for each diagnosis-related group (DRG)
applicable to the episode of care.
(a) Payment shall be made of the full prospective payment amount per
discharge, as determined according to the methodology in subparts D and
G of 42 CFR part 412, as appropriate.
(b)(1) In the case of a veteran who was transferred to another
facility before completion of care, VA shall pay the transferring
hospital an amount calculated by the HCFA PRICER for each patient day of
care, not to exceed the full DRG rate as provided in paragraph (a) of
this section. The hospital that ultimately discharges the patient will
receive the full DRG payment.
(2) In the case of a veteran who has transferred from a hospital
and/or distinct part unit excluded by Medicare from the DRG-based
prospective payment system or from a hospital that does not participate
in Medicare, the transferring hospital will receive a payment for each
patient day of care not to exceed the amount provided in paragraph (i)
of this section.
(c) VA shall pay the providing facility the full DRG-based rate or
reasonable cost, without regard to any copayments or deductible required
by any Federal law that is not applicable to VA.
(d) If the cost or length of a veteran's care exceeds an applicable
threshold amount, as determined by the HCFA PRICER program, VA shall
pay, in addition to the amount payable under paragraph (a) of this
section, an outlier payment calculated by the HCFA PRICER program, in
accordance with subpart F of 42 CFR part 412.
(e) In addition to the amount payable under paragraph (a) of this
section, VA shall pay, for each discharge, an amount to cover the
non-Federal hospital's capital-related costs, kidney, heart and liver
acquisition costs incurred by hospitals with approved transplantation
centers, direct costs of medical education, and the costs of qualified
nonphysician anesthetists in small rural hospitals. These amounts will
be determined by the Chief Medical Director on an annual basis and
published in the ''Notices'' section of the Federal Register.
(f) Payment shall be made only for those services authorized by VA.
(g) Payments made in accordance with this section shall constitute
payment in full and the provider or agent for the provider may not
impose any additional charge on a veteran or his or her health care
insurer for any inpatient services for which payment is made by the VA.
(h) Medical services not included in inpatient operating costs which
the DRG payment covers (42 CFR part 412) shall be paid only to the
extent they are reasonable and not in excess of rates or fees the
provider of services charges the general public for similar services in
the community.
(i) Hospitals of distinct part hospital units excluded from the
prospective payment system by Medicare and hospitals that do not
participate in Medicare will be paid at the national cost-to-charge
ratio times the billed charges that are reasonable, usual, customary,
and not in excess of rates or fees the hospital charges the general
public for similar services in the community.
(j) A hospital participating in an alternative payment system that
has been granted a Federal waiver from the prospective payment system
under the provisions of 42 U.S.C. section 1395f(b)(3) or 42 U.S.C.
section 1395ww(c) for the purposes of Medicare payment shall not be
subject to the payment methodology set forth in this section so long as
such Federal waiver remains in effect.
(k) Payments for episodes of hospital care furnished in Alaska that
begin during the period starting on the effective date of this section
through the 364th day thereafter will be in the amount determined by the
HCFA PRICER plus 50 percent of the difference between the amount billed
by the hospital and the amount determined by the PRICER. Claims for
services provided during that period will be accepted for payment by VA
under this paragraph (k) until December 31 of the year following the
year in which this section became effective.
(Authority: Section 233, Pub. L. 99-576)
(55 FR 42852, Oct. 24, 1990)
38 CFR 17.50f Use of Community Nursing Home Care Facilities
38 CFR 17.51 Use of community nursing homes.
(a) Nursing home care in a contract public or private nursing home
facility may be authorized for the following:
(1) Subject to the limitations of paragraph (a)(5) of this section,
any veteran eligible for hospital, nursing home, or domiciliary care
under 17.47 who has attained the maximum benefit from such care and for
whom a protracted period of nursing home care will be required.
(Authority: 38 U.S.C. 1710, 1720; sec. 19011, Pub. L. 99-272)
(2) Any person who has been furnished care in any hospital of any of
the Armed Forces, who the appropriate Secretary concerned has determined
has received maximum hospital benefits but requires a protracted period
of nursing home care, and who upon discharge therefrom will become a
veteran.
(Authority: 38 U.S.C. 1720)
(3) Any veteran who requires nursing home care for a
service-connected disability without first requiring a period of
hospitalization. Admission may be authorized upon a determination of
need therefore by a physician employed by VA or, in areas where no such
physician is available, by carrying out such function under contract or
fee arrangement.
(Authority: 38 U.S.C. 1720; sec. 108, Pub. L. 99-166)
(4) Any veteran who has been discharged from a hospital under the
direct jurisdiction of VA and is currently receiving VA hospital based
home health services.
(Authority: Pub. L. 99-166)
(Authority: 38 U.S.C. 1720; sec. 108, Pub. L. 99-166)
(5) To the extent that resources are available and are not otherwise
required to assure that VA can furnish needed care and treatment to
veterans described in 17.47 (a) and (c), the Chief Medical Director may
furnish care under this paragraph to any veteran described in 17.47(d)
if the veteran agrees to pay the United States an amount as determined
in 17.48(e).
(Authority: 38 U.S.C. 1710, 1720; sec. 19011, Pub. L. 99-272)
(b) Such nursing home care will be subject to the following
restrictions:
(1) Any veteran eligible under paragraph (a)(1) of this section shall
be transferred to the nursing home care facility from a hospital,
nursing home or domiciliary under the direct jurisdiction of VA, except
as provided for in 17.51b.
(2) The nursing home care facility is determined to meet the physical
and professional standards prescribed by the Chief Medical Director, and
(3) The cost of the nursing home care will not exceed 45 percent of
the cost of care furnished by VA in a general medical center an
determined annually. However, the Secretary upon the recommendation of
the Chief Medical Director may approve a higher rate not to exceed 50
percent of the cost of such care.
(4) Except as provided for in 17.51a, nursing home care will not be
for more than 6 months in the aggregate in connection with any one
transfer, except in the case of a veteran who requires nursing home care
for a service-connected disability. In such case entitlement to nursing
home care under this paragraph is not subject to any time limitation.
(5) The standards prescribed by the Chief Medical Director and any
report of inspection of institutions furnishing nursing home care to
veterans shall, to the extent possible, be made available to all
Federal, State, and local agencies charged with the responsibility of
licensing or otherwise regulating or inspecting such institutions.
(Authority: 38 U.S.C. 1720(b))
(51 FR 25067, July 10, 1986)
38 CFR 17.51a Extensions of community nursing home care beyond six
months.
Directors of health care facilities may authorize, for any veteran
whose hospitalization was not primarily for a service-connected
disability, an extension of nursing care in a public or private nursing
home care facility at VA expense beyond six months when the need for
nursing home care continues to exist and
(a) Arrangements for payment of such care through a public assistance
program (such as Medicaid) for which the veteran has applied, have been
delayed due to unforeseen eligibility problems which can reasonably be
expected to be resolved within the extension period, or
(b) The veteran has made specific arrangements for private payment
for such care, and
(1) Such arrangements cannot be effectuated as planned because of
unforseen, unavoidable difficulties, such as a temporary obstacle to
liquidation of property, and
(2) Such difficulties can reasonably be expected to be resolved
within the extension period; or
(c) The veteran is terminally ill and life expectancy has been
medically determined to be less than six months.
(d) In no case may an extension under paragraph (a) or (b) of this
section exceed 45 days.
(Authority: 38 U.S.C. 501, 1720(a))
(53 FR 13121, Apr. 21, 1988)
38 CFR 17.51b Transfers from facilities for nursing home care in Alaska
and Hawaii.
Transfer of any veteran hospitalized in a non-VA hospital facility or
receiving domiciliary care at VA expense to a community nursing home
facility in Alaska or Hawaii may be authorized subject to the provisions
of 17.51, except paragraph (b)(1).
(Authority: 38 U.S.C. 1712A, Pub. L. 99-166)
(51 FR 25067, July 10, 1986)
38 CFR 17.51b Adult Day Health Care
Source: 52 FR 13441, Apr. 23, 1987, unless otherwise noted.
38 CFR 17.51c Definition of adult day health care program.
The adult day health care program is a therapeutic day care program
which provides medical and rehabilitation services to disabled veterans
in a congregate setting. The Veterans' Health Care Amendments of 1983,
Pub. L. 98-160, authorizes VA to furnish this program until September
30, 1988.
(Authority: 38 U.S.C. 1529(f)(1)(A))
38 CFR 17.51d Adult day health care in Department of Veterans Affairs
facilities.
(a) VA facilities may provide adult day health care to:
(1) Any veteran who has a service-connected disability rated at 50
percent or more who is determined by VA to be in need of such care.
(2) Any veteran who has been furnished care in a hospital under the
direct jurisdiction of the Secretary or any veteran who has been
furnished care by the Secretary in a hospital in Alaska or Hawaii if VA
determines that the veteran has received maximum benefits for such care
in such hospital, but will require a protracted period of adult day
health care which can be furnished in an institution furnishing adult
day health care.
(3) Any person (i) who has been furnished care in any hospital of any
of the Armed Forces, (ii) who the appropriate Secretary concerned and VA
have determined has received maximum hospital benefits but requires a
protracted period of adult day health care, and (iii) who upon discharge
from the armed forces will become a veteran.
(b) Adult day health care furnished in VA facilities shall not
include travel and incidental expenses (or transportation in lieu
thereof) except as authorized by 17.100.
(Authority: 38 U.S.C. 1720(f)(1)(A)(i))
38 CFR 17.51e Adult day health care in private facilities.
Veterans eligible under 17.51d for adult day health care may be
transferred to any public or private institution not under the
jurisdiction of the Secretary which furnishes adult day health care for
such care at VA expense if:
(a) The cost of adult day health care in such institution will not
exceed 45 percent of the cost of care furnished by VA in a general
hospital under the direct and exclusive jurisdiction of the Secretary,
as such cost may be determined annually by the Secretary, or not to
exceed 50 percent of such cost where determined necessary by the
Secretary, upon the recommendation of the Chief Medical Director, to
provide adequate care;
(b) A contract between the institution and VA is awarded in
accordance with Federal and VA acquisition law and regulations;
(c) A VA inspection finds that the institution meets the following
standards:
(1) The institution shall meet all Federal, State and local laws,
regulations, and codes pertaining to health and safety such as
provisions regulating:
(i) Construction, maintenance, and equipment;
(ii) Sanitation;
(iii) Buying, dispensing, safeguarding, administering, and disposing
of medications and controlled substances.
(2) The institution shall meet the applicable provisions of the
National Fire Protection Association's Life Safety Code, entitled NFPA
101 Life Safety Code 1985, dated February 7, 1985, (which is
incorporated by reference). Incorporation of the 1985 edition of the
Life Safety Code was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The code is
available for inspection at the Office of the Federal Register
Information Center, Room 8301, 1110 L Street, NW., Washington, DC.
Copies may be obtained from: National Fire Protection Association,
Battery March Park, Quincy, MA 02269. If any changes in this code are
also to be incorporated by reference, a notice to that effect will be
published in the Federal Register. The institution shall provide
sufficient staff to assist patients in the event of fire or other
emergency.
(3) The institution shall have the capability (including sufficient
qualified staff) to provide:
(i) Medical services including a medical director at least on a
consulting basis and the provision of direct patient care;
(ii) Services of a registered nurse;
(iii) Social services provided by a qualified social worker;
(iv) Rehabilitation services including occupational and physical
therapy;
(v) Assistance for daily living including bathing, feeding,
toileting, ambulation, and transferring;
(vi) Care management;
(vii) Nutrition services including counseling, regular meals, and
special diets;
(viii) Recreation therapy;
(ix) Transportation to and from home; and
(x) The maintenance of individual client records. These records
shall include a treatment plan, periodic reevaluations, progress notes,
discharges summaries, and other usual and customary information normally
included in a client record.
(Authority: 38 U.S.C. 1720(f)(1)(A))
38 CFR 17.51f Extension of adult day health care beyond six months.
(a) Directors of health care facilities may authorize, for any
veteran whose hospitalization was not primarily for a service-connected
disability, an extension of adult day health care in a VA facility or in
a public or private facility at VA expense beyond six months when the
need for adult day health care continues to exist and
(1) Arrangements for payment of such care through a public assistance
program (such as Medicaid) for which the veteran has applied, have been
delayed due to unforeseen eligibility problems which can reasonably be
expected to be resolved within the extension period, or
(2) The veteran has made specific arrangements for private payment of
such care, and
(i) Such arrangements cannot be effectuated as planned because of
unforeseen, unavoidable difficulties, such as a temporary obstacle to
liquidation of property, and
(ii) Such difficulties can reasonably be expected to be resolved
within the extension period; or
(3) The veteran is terminally ill and life expectancy has been
medically determined to be less than six months.
(4) In no case may an extension under (1) or (2) exceed 45 days.
(Authority: 38 U.S.C. 1720(f)(1)(A)(i))
38 CFR 17.51g Provision of services to adult day health care
institutions.
VA facilities may enter into agreements to provide resources (whether
equipment, space, or personnel) to institutions furnishing adult day
health care at VA expense under 17.51e if:
(a) The resources will be used solely to furnish adult day health
care, and
(b) The agreement provides VA with reimbursement for the full cost of
such resources including the cost of services and supplies and normal
depreciation and amortization of equipment. Such reimbursement may be
made by reduction in the charges to the United States or by payment to
the United States.
(Authority: 38 U.S.C. 1720(f)(1)(B))
38 CFR 17.51g Community Residential Care
Source: 54 FR 20842, May 15, 1989, unless otherwise noted.
38 CFR 17.51h Eligibility.
VA health care personnel may assist a veteran by referring such
veteran for placement in a privately or publicly-owned community
residential care facility if:
(a) At the time of initiating the assistance:
(1) The veteran is receiving VA medical services on an outpatient
basis or VA medical center, domiciliary, or nursing home care; or
(2) Such care or services were furnished the veteran within the
preceding 12 months;
(b) The veteran does not need hospital or nursing home care but is
unable to live independently because of medical (including psychiatric)
conditions and has no suitable family resources to provide needed
monitoring, supervision, and any necessary assistance in the veteran's
daily living activities; and
(c) The facility has been approved in accordance with 17.51j of this
part.
(Authority: 38 U.S.C. 1730)
38 CFR 17.51i Definitions.
For the purpose of 17.51h through 17.51s:
(a) The term community residential care means the monitoring,
supervision, and assistance, in accordance with a statement of needed
care, of the daily living activities of referred veterans in an approved
home in the community by the facility's provider.
(b) The term statement of needed care means a written description of
needed assistance in daily living activities devised by VA for each
referred veteran in the community residential care program.
(c) The term daily living activities includes:
(1) Walking;
(2) Bathing, shaving, brushing teeth, combing hair;
(3) Dressing;
(4) Eating;
(5) Getting in or getting out of bed;
(6) Laundry;
(7) Cleaning room;
(8) Managing money;
(9) Shopping;
(10) Using public transportation;
(11) Writing letters;
(12) Making telephone calls;
(13) Obtaining appointments;
(14) Self-administration of medications;
(15) Recreational and leisure activities; and
(16) Other similar activities.
(d) The term paper hearing means a review of the written evidence of
record by the hearing official.
(e) The term oral hearing means the in person testimony of
representatives of a community residential care facility and of VA
before the hearing official and the review of the written evidence of
record by that official.
(f) The term approving official means the Director or, if designated
by the Director, the Associate Director or Chief of Staff of a
Department of Veterans Affairs Medical Center or Outpatient Clinic which
has jurisdiction to approve a community residential care facility.
(g) The term hearing official means the Director or, if designated by
the Director, the Associate Director or Chief of Staff of a Department
of Veterans Affairs Medical Center or Outpatient Clinic which has
jurisdiction to approve a community residential care facility.
(Authority: 38 U.S.C. 1730)
38 CFR 17.51j Approval of community residential care facilities.
The approving official may approve a community residential care
facility, based on the report of a VA inspection and on any findings of
necessary interim monitoring of the facility, if that facility meets the
following standards:
(a) Health and safety standards. The facility must:
(1) Meet all State and local regulations including construction,
maintenance, and sanitation regulations;
(2) Meet the applicable provisions of the 1988 edition of the
National Fire Protection Association's Life Safety Code, NFPA 101,
including NFPA 101M, Alternative Approaches to Life Safety (which are
incorporated by reference). The institution shall provide sufficient
staff to assist patients in the event of fire or other emergency.
Incorporation by reference of the 1988 edition of the Life Safety Code
including NFPA 101M was approved by the Director of the Federal
Register, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The
Code is available for inspection at the Office of the Federal Register,
Room 8301, 800 North Capitol Street NW., suite 700, Washington, DC.
Copies may be obtained from the National Fire Protection Association,
Batterymarch Park, Quincy, MA 02269. If any changes in this Code are
also to be incorporated by reference, a notice to that effect will be
published in the Federal Register; and
(3) Have safe and functioning systems for heating, hot and cold
water, electricity, plumbing, sewage, cooking, laundry, artificial and
natural light, and ventilation.
(b) Health services. The facility must agree to assist residents in
obtaining the statement of needed care developed by VA.
(c) Interior plan. The facility must:
(1) Have comfortable dining areas, adequate in size for the number of
residents;
(2) Have confortable living room areas, adequate in size to
accommodate a reasonable proportion of residents; and
(3) Maintain at least one functional toilet and lavatory, and bathing
or shower facility for every six people living in the facility,
including provider and staff.
(d) Laundry service. The facility must provide or arrange for
laundry service.
(e) Residents' bedrooms. Residents' bedrooms must:
(1) Contain no more than four beds;
(2) Measure, exclusive of closet space, at least 100 square feet for
a single-resident room, or 80 square feet for each resident in a
multiresident room; and
(3) Contain a suitable bed for each resident and appropriate
furniture and furnishings.
(f) Nutrition. The facility must:
(1) Provide a safe and sanitary food service that meets individual
nutritional requirements and residents' preferences;
(2) Plan menus to meet currently recommended dietary allowances;
(g) Activities. The facility must plan and facilitate appropriate
recreational and leisure activities to meet individual needs specified
in the statement of heeded care.
(h) Residents' rights. The facility must have written policies and
procedures that ensure the following rights for each resident:
(1) Each resident has the right to:
(i) Be informed of the rights described in this section;
(ii) The confidentiality and nondisclosure of information obtained by
community residential care facility staff on the residents and the
residents' records subject to the requirements of applicable law;
(iii) Be able to inspect the residents' own records kept by the
community residential care facility;
(iv) Exercise rights as a citizen; and
(v) Voice grievances and make recommendations concerning the policies
and procedures of the facility.
(2) Financial affairs. Residents must be allowed to manage their own
personal financial affairs, except when the resident has been restricted
in this right by law. If a resident requests assistance from the
facility in managing personal financial affairs the request must be
documented.
(3) Privacy. Residents must:
(i) Be treated with respect, consideration, and dignity;
(ii) Have access, in reasonable privacy, to a telephone within the
facility;
(iii) Be able to send and receive mail unopened and uncensored; and
(iv) Have privacy of self and possessions.
(4) Work. No resident will perform household duties, other than
personal housekeeping tasks, unless the resident receives compensation
for these duties or is told in advance they are voluntary and the
patient agrees to do them.
(5) Freedom of association. Residents have the right to:
(i) Receive visitors and associate freely with persons and groups of
their own choosing both within and outside the facility;
(ii) Make contacts in the community and achieve the highest level of
independence, autonomy, and interaction in the community of which the
resident is capable;
(iii) Leave and return freely to the facility, and
(iv) Practice the religion of their own choosing or choose to abstain
from religious practice.
(6) Transfer. Residents have the right to transfer to another
facility or to an independent living situation.
(i) Records. (1) The facility must maintain records on each resident
in a secure place.
(2) Facility records must include:
(i) A copy of the statement of needed care;
(ii) Emergency notification procedures; and
(iii) A copy of all signed agreements with the resident.
(3) Records may only be disclosed with the resident's permission, or
when required by law.
(Approved by the Office of Management and Budget under control number
2900-0491)
(j) Staff requirements. (1) Sufficient, qualified staff must be on
duty and available to care for the resident and ensure the health and
safety of each resident.
(2) The community residential care provider and staff must have the
following qualifications: Adequate education, training, or experience
to maintain the facility.
(k) Cost of community residential care. (1) Payment for the charges
of community residential care is not the responsibility of the United
States Government or VA.
(2) The resident or an authorized personal representative and a
representative of the community residential care facility must agree
upon the charge and payment procedures for community residential care.
(3) The charges for community residential care must be reasonable:
(i) For residents in a community residential care facility as of June
14, 1989, the rates charged for care are pegged to the facility's basic
rate for care as of July 31, 1987. Increases in the pegged rate during
any calendar year cannot exceed the annual percentage increase in the
National Consumer Price Index (CPI) for that year;
(ii) For community residential care facilities approved after July
31, 1987, the rates for care shall not exceed 110 percent of the average
rate for approved facilities in that State as of March 31, 1987.
Increases in this rate during any calendar year cannot exceed the annual
percentage increase in the National Consumer Price Index (CPI) for that
year.
(iii) The approving official may approve a deviation from the
requirements of paragraphs (k)(3)(i) through (ii) of this section upon
request from a community residential care facility representative, a
resident in the facility, or an applicant for residency, if the
approving official determines that the cost of care for the resident
will be greater than the average cost of care for other residents, or if
the resident chooses to pay more for the care provided at a facility
which exceeds VA standards.
(Authority: 38 U.S.C. 1730)
(54 FR 20842, May 15, 1989, as amended at 54 FR 22754, May 26, 1989)
38 CFR 17.51k Exceptions to standards in community residential care
facilities.
(a) Facilities which have participated in VA's community residential
care program prior to (the effective date of these regulations) may
continue to be approved when the standard for 17.51j(c)(3) and/or
17.51j(e)(2) of this part are not met if:
(1) All standards other than 17.51j(c)(3) and/or 17.51j(e)(2) of
this part are met;
(2) There is at least one functional toilet, lavatory, and bathing or
shower facility for every eight people living in the facility, including
provider and staff;
(3) The resident's bedrooms measure, exclusive of closet space, at
least 80 square feet for a single-resident room, or 65 square feet for
each resident in a multiresident room.
(b) Community residential care facilities which do not meet the
requirements for continued approval because they do not comply with
paragraphs (a)(2) or (a)(3) of this section may apply in writing to the
Secretary of Veterans Affairs for an exception. The application must
include a detailed description of the facility, including a description
of the toilet, lavatory and bathing and shower facilities and/or
resident's bedroom size, and an analysis of alternative solutions.
(Authority: 38 U.S.C. 1730)
38 CFR 17.51l Duration of approval.
(a) Approval may be valid for up to 24 months if VA finds that the
facility complies with all standards during the current and all previous
VA inspections and any necessary interim monitoring for a period of two
years.
(b) Approval may be valid for up to 15 months if VA finds the
facility has complied with all standards except the records standard set
forth in 17.51j(i) of this part during the current and all previous VA
inspections and any necessary interim monitoring.
(c) Approval may be valid for up to 12 months if the VA finds that
the facility has complied with all standards except the laundry service
standard set forth in 17.51j(d) and the records standard set forth in
17.51j(i) of this part during the current and all previous VA
inspections and any necessary interim monitoring.
(d) Approval may be valid for up to 9 months if the VA finds that the
facility has complied with all standards except the laundry service
standard set forth in 17.51j(d) of this part; the bedroom standard set
forth in 17.51j(e) of this part; the activities standard set forth in
17.51j(g) of this part; and the records standard set forth in
17.51j(i) of this part during the current and all previous VA
inspections and any necessary interim monitoring.
(Authority: 38 U.S.C. 1730)
38 CFR 17.51m Notice of noncompliance with VA standards.
If the hearing official determines that an approved community
residential care facility does not comply with the standards set forth
in 17.51j of this part, the hearing official shall notify the community
residential care facility in writing of:
(a) The standards which have not been met;
(b) The date by which the standards must be met in order to avoid
revocation of VA approval;
(c) The community residential care facility's opportunity to request
an oral or paper hearing under 17.51n of this part before VA approval
is revoked; and
(d) The date by which the hearing official must receive the community
residential care facility's request for a hearing, which shall not be
less than 10 calendar days and not more than 20 calendar days after the
date of VA notice of noncompliance, unless the hearing official
determines that noncompliance with the standards threatens the lives of
community residential care residents in which case the hearing official
must receive the community residential care facility's request for an
oral or paper hearing within 36 hours of receipt of VA notice.
(Authority: 38 U.S.C. 1730)
38 CFR 17.51n Request for a hearing.
The community residential care facility operator must specify in
writing whether an oral or paper hearing is requested. The request for
the hearing must be sent to the hearing official. Timely receipt of a
request for a hearing will stay the revocation of VA approval until the
hearing official issues a written decision on the community residential
care facility's compliance with VA standards. The hearing official may
accept a request for a hearing received after the time limit, if the
community residential care facility shows that the failure of the
request to be received by the hearing official's office by the required
date was due to circumstances beyond its control.
(Authority: 38 U.S.C. 1730)
38 CFR 17.51o Notice and conduct of hearing.
(a) Upon receipt of a request for an oral hearing, the hearing
official shall:
(1) Notify the community residential care facility operator of the
date, time, and location for the hearing; and
(2) Notify the community residential care facility operator that
written statements and other evidence for the record may be submitted to
the hearing official before the date of the hearing. An oral hearing
shall be informal. The rules of evidence shall not be followed.
Witnesses shall testify under oath or affirmation. A recording or
transcript of every oral hearing shall be made. The hearing official
may exclude irrelevant, immaterial, or unduly repetitious testimony.
(b) Upon the receipt of a community residential care facility's
request for a paper hearing, the hearing official shall notify the
community residential care facility operator that written statements and
other evidence must be submitted to the hearing official by a specified
date in order to be considered as part of the record.
(c) In all hearings, the community residential care facility operator
and VA may be represented by counsel.
(Authority: 38 U.S.C. 1730)
38 CFR 17.51p Waiver of opportunity for hearing.
If representatives of a community residential care facility which
receive a notice of noncompliance under 17.51m of this part fail to
appear at an oral hearing of which they have been notified or fail to
submit written statements for a paper hearing in accordance with 17.51o
of this part, unless the hearing official determines that their failure
was due to circumstances beyond their control, the hearing official
shall:
(a) Consider the representatives of the community residential care
facility to have waived their opportunity for a hearing; and,
(b) Revoke VA approval of the community residential care facility and
notify the community residential care facility of this revocation.
(Authority: 38 U.S.C. 1730)
38 CFR 17.51q Written decision following a hearing.
(a) The hearing official shall issue a written decision within 20
days of the completion of the hearing. An oral hearing shall be
considered completed when the hearing ceases to receive in person
testimony. A paper hearing shall be considered complete on the date by
which written statements must be submitted to the hearing official in
order to be considered as part of the record.
(b) The hearing official's determination of a community residential
care facility's noncompliance with VA standards shall be based on the
preponderance of the evidence.
(c) The written decision shall include:
(1) A statement of the facts;
(2) A determination whether the community residential care facility
complies with the standards set forth in 17.51j of this part; and
(3) A determination of the time period, if any, the community
residential care facility shall have to remedy any noncompliance with VA
standards before revocation of VA approval occurs.
(d) The hearing official's determination of any time period under
paragraph (c)(3) of this section shall consider the safety and health of
the residents of the community residential care facility and the length
of time since the community residential care facility received notice of
the noncompliance.
(Authority: 38 U.S.C. 1730)
38 CFR 17.51r Revocation of VA approval.
(a) If a hearing official determines under 17.51q of this part that
a community residential care facility does not comply with the standards
set forth in 17.51j of this part and determines that the community
residential care facility shall not have further time to remedy the
noncompliance, the hearing official shall revoke approval of the
community residential care facility and notify the community residential
care facility of this revocation.
(b) Upon revocation of VA approval, VA health care personnel shall:
(1) Cease referring veterans to the community residential care
facility; and,
(2) Notify any veteran residing in the community residential care
facility of the facility's disapproval and request permission to assist
in the veteran's removal from the facility. If a veteran has a person
or entity authorized by law to give permission on behalf of the veteran,
VA health care personnel shall notify that person or entity of the
community residential care facility's disapproval and request permission
to assist in removing the veteran from the community residential care
facility.
(c) If the hearing official determines that a community residential
care facility fails to comply with the standards set forth in 17.51j of
this part and determines that the community residential care facility
shall have an additional time period to remedy the noncompliance, the
hearing official shall review at the end of the time period the evidence
of the community residential care facility's compliance with the
standards which were to have been met by the end of that time period and
determine if the community residential care facility complies with the
standards. If the community residential care facility fails to comply
with these or any other standards, the procedures set forth in
17.51m-17.51r of this part shall be followed.
(Authority: 38 U.S.C. 1730)
38 CFR 17.51s Availability of information.
VA standards will be made available to other Federal, State and local
agencies charged with the responsibility of licensing, or otherwise
regulating or inspecting community residential care facilities.
(Authority: 38 U.S.C. 1730)
38 CFR 17.51s Use of Services of Other Federal Agencies
38 CFR 17.52 Use of services of other Federal agencies.
Pursuant to agreements between the Department of Veterans Affairs and
other Federal departments or agencies, the Department of Veterans
Affairs may authorize other Federal agencies or departments to furnish
medical services on a fee basis for any veteran eligible for Department
of Veterans Affairs medical services. Except as provided in 17.50 and
17.50a, medical services will not be authorized under the provisions of
this section if furnishing the services involves transfer of a veteran
as an inpatient.
(35 FR 18198, Nov. 28, 1970)
38 CFR 17.53a Alcohol and drug dependence or abuse treatment and
rehabilitation in residential and nonresidential facilities by contract.
(a) Alcohol and drug dependence or abuse treatment and rehabilitation
may be authorized by contract in nonresidential facilities and in
residential facilities provided by halfway houses, therapeutic
communities, psychiatric residential treatment centers and other
community-based treatment facilities, when considered to be medically
advantageous and cost effective for the following:
(1) Veterans who have been furnished hospital care in facilities over
which the Secretary has direct jurisdiction and such transitional care
is reasonably necessary to complete treatment incident to such hospital
care,
(2) Persons in the Armed Forces who, upon discharge therefrom will
become eligible veterans, when duly referred with authorization for
Department of Veterans Affairs medical center hospital care in
preparation for treatment and rehabilitation in this program under the
following limitations:
(i) Such persons may be accepted by transfer only during the last 30
days of such person's enlistment or tour of duty,
(ii) The person requests transfer in writing for treatment for a
specified period of time during the last 30 days of such person's
enlistment period or tour of duty,
(iii) Treatment does not extend beyond the period of time specified
in the request unless such person requests in writing an extension for a
further specified period of time and such request is approved by the
Department of Veterans Affairs Medical Center Director authorizing
treatment and rehabilitation,
(iv) Such care and treatment will be provided as if the person were a
veteran, subject to reimbursement by the respective military service for
the costs of hospital care and control treatment provided while the
person is an active duty member.
(b) The maximum period for one treatment episode is limited to 60
days. The Department of Veterans Affairs Medical Center Director may
authorize one 30-day extension.
(c) Any person who has been discharged or released from active
military, naval or air service, and who, upon application for treatment
and rehabilitative services under the authority of this section is
determined to be legally ineligible for such treatment or rehabilitation
services shall be:
(1) Provided referral services to assist the person, to the maximum
extent possible, in obtaining treatment and rehabilitation services from
sources outside the Department of Veterans Affairs, not at Department of
Veterans Affairs expense and,
(2) If pertinent, advised of the right to apply to the appropriate
military, naval or air service and the Department of Veterans Affairs
for review of such person's discharge or release from such service.
(Authority: 38 U.S.C. 1720A)
(47 FR 57706, Dec. 28, 1982)
38 CFR 17.53b Contracts for residential treatment services for veterans
with alcohol or drug dependence or abuse disabilities.
(a) Contracts for treatment services authorized under 17.53a(a) may
be awarded in accordance with applicable Department of Veterans Affairs
and Federal procurement procedures. Such contracts will be awarded only
after the quality and effectiveness, including adequate protection for
the safety of the residents of the contractor's program, has been
determined and then only to contractors, determined by the Chief Medical
Director or designee to meet the following requirements.
(1) Meet fire safety requirements as follows:
(i) The building must meet the requirements of the applicable
residential occupancy chapters and the general requirement chapters
(1-7, 31) of the Life Safety Code (NFPA 101) published by the National
Fire Protection Association (NFPA), Batterymarch Park, Quincy, MA 02269,
1981 edition. The 1981 edition of the Life Safety Code is hereby
incorporated by reference into this section as though set forth in full
herein. This code is available for inspection at the Office of the
Federal Register, 800 North Capitol Street, NW., suite 700, Washington,
DC. Any equivalences or variances to Department of Veterans Affairs
requirements must be approved by the Director, Facility Engineering,
Planning, and Construction Office, Department of Veterans Affairs
Central Office, 810 Vermont Avenue, NW., Washington, DC 20420.
(ii) Where applicable, the home must have a current occupancy permit
issued by the local and state governments in the jurisdiction where the
home is located.
(iii) All Department of Veterans Affairs sponsored residents will be
mentally and physically capable of leaving the building, unaided, in the
event of an emergency. Halfway house, therapeutic community and other
residential program management must agree that all the other residents
in any building housing veterans will also have such capability.
(iv) There must be at least one staff member on duty 24 hours a day.
(v) Fire exit drills must be held at least quarterly. Residents must
be instructed in evacuation procedures when the primary and/or secondary
exits are blocked. A written fire plan for evacuation in the event of
fire shall be developed and reviewed annually. The plan shall outline
the duties, responsibilities and actions to be taken by the staff and
residents in the event of a fire emergency. This plan shall be
implemented during fire exit drills.
(vi) A written policy regarding tobacco smoking in the facility shall
be established and enforced.
(vii) Portable fire extinguishers shall be installed at the facility.
Use NFPA 10, Portable Fire Extinguishers, as guidance in selection and
location requirements of extingushers.
(viii) Requirements for fire protection equipment and systems shall
be in accordance with NFPA 101. Where installed, maintenance and
testing of these systems/equipment shall include the following:
(A) The fire alarm system shall be test operated at least
semi-annually.
(B) All smoke detectors shall be test operated, by activation of the
smoke detector, at least semi-annually.
(C) The monthly and annual inspections and the maintenance of the
extinguishers shall be in accordance with NFPA 10.
(D) All fire protection systems and equipment, such as the fire alarm
system, smoke detectors, and portable extinguishers, shall be inspected,
tested and maintained in accordance with the applicable NFPA fire codes
and the results documented.
(ix) An annual fire and safety inspection shall be conducted at the
halfway house or residential facility by qualified Department of
Veterans Affairs personnel. If a review of past Department of Veterans
Affairs inspections or inspections made by the local authorities
indicates that a fire and safety inspection would not be necessary, then
the visit to the facility may be waived.
(2) Be in compliance with existing standards of State safety codes
and local, and/or State health and sanitation codes.
(3) Be licensed under State or local authority.
(4) Where applicable, be accredited by the State.
(5) Comply with the requirements of the ''Confidentiality of Alcohol
and Drug Abuse Patient Records'' (42 CFR part II) and the
''Confidentiality of Certain Medical Records'' (38 U.S.C. 7332), which
shall be part of the contract.
(6) Demonstrate an existing capability to furnish the following:
(i) A supervised alcohol and drug free environment, including active
affiliation with Alcoholics Anonymous (AA) programs.
(ii) Staff sufficient in numbers and position qualifications to carry
out the policies, responsibilities, and programs of the facility.
(iii) Board and room.
(iv) Laundry facilities for residents to do their own laundry.
(v) Structured activities.
(vi) Appropriate group activities, including physical activities.
(vii) Health and personal hygiene maintenance.
(viii) Monitoring administration of medications.
(ix) Supportive social service.
(x) Individual counseling as appropriate.
(xi) Opportunities for learning/development of skills and habits
which will enable Department of Veterans Affairs sponsored residents to
adjust to and maintain freedom from dependence on or involvement with
alcohol or drug abuse or dependence during or subsequent to leaving the
facility.
(xii) Support for the individual desire for sobriety (alcohol/drug
abuse-free life style).
(xiii) Opportunities for learning, testing, and internalizing
knowledge of illness/recovery process, and for upgrading skills and
improving personal relationships.
(7) Data normally maintained and included in a medical record as a
function of compliance with State or community licensing standards will
be accessible.
(b) Representatives of the Department of Veterans Affairs will
inspect the facility prior to award of a contract to assure that
prescribed requirements can be met. Inspections may also be carried out
at such other times as deemed necessary by the Department of Veterans
Affairs.
(c) All requirements in this rule, and Department of Veterans Affairs
reports of inspection of residential facilities furnishing treatment and
rehabilitation services to eligible veterans shall to the extent
possible, be made available to all government agencies charged with the
responsibility of licensing or otherwise regulating or inspecting such
institutions.
(d) An individual case record will be created for each client which
shall be maintained in security and confidence as required by the
''Confidentiality of Alcohol and Drug Abuse Patient Records'' (42 CFR
part 2) and the ''Confidentiality of Certain Medical Records'' (38
U.S.C. 7332), and will be made available on a need to know basis to
appropriate Department of Veterans Affairs staff members involved with
the treatment program of the veterans concerned.
(e) Contractors under this section shall provide reports of budget
and case load experience upon request from a Department of Veterans
Affairs official.
(Authority: 38 U.S.C. 1720A)
(47 FR 57707, Dec. 28, 1982)
38 CFR 17.53c Contracts for outpatient services for veterans with
alcohol or drug dependence or abuse disabilities.
(a) Contracts for treatment services authorized under 17.53a may be
awarded in accordance with applicable Department of Veterans Affairs and
Federal procurement procedures. Such contracts will be awarded only
after the quality and effectiveness, including adequate protection for
the safety of the participants of the contractor's program, has been
determined and then only to contractors determined by the Chief Medical
Director or designee to be fully capable of meeting the following
standards:
(1) The following minimum fire safety requirements must be met:
(i) The building must meet the requirements of the applicable
business occupancy chapters and the general requirement chapters (1-7,
31) of the Life Safety Code (NFPA 101) published by the National Fire
Protection Association (NFPA), Batterymarch Park, Quincy, MA 02269, 1981
edition. The 1981 edition of the Life Safety Code (NFPA 101) is hereby
incorporated by reference into this section as though set forth in full
herein. This code is available for inspection at the Office of the
Federal Register, 800 North Capitol Street, NW., suite 700, Washington,
DC. Any equivalencies or variances to Department of Veterans Affairs
requirements must be approved by the Director, Facility Engineering,
Planning, and Construction Office, Department of Veterans Affairs
Central Office, 810 Vermont Avenue, NW., Washington, DC 20420.
(ii) Where applicable, the facility must have a current occupancy
permit issued by the local and state governments in the jurisdiction
where the home is located.
(iii) All Department of Veterans Affairs sponsored patients will be
mentally and physically capable of leaving the building, unaided, in the
event of an emergency.
(iv) Fire exit drills must be held at least quarterly. A written
plan for evacuation in the event of fire shall be developed and reviewed
annually. The plan shall outline the duties, responsibilities and
actions to be taken by the staff in the event of a fire emergency. This
plan shall be implemented during fire exit drills.
(v) Portable fire extinguishers shall be installed at the facility.
Use NFPA 10, Portable Fire Extinguishers, as guidance in selection and
location requirements of extinguishers.
(vi) Requirements for fire protection equipment and systems shall be
in accordance with NFPA 101. Where installed, maintenance and testing
of these systems/equipment shall include the following:
(A) The fire alarm system shall be test operated at least
semi-annually.
(B) All smoke detectors shall be test operated, by activation of the
smoke detector, at least sem-annually.
(C) The monthly and annual inspections and the maintenance of the
extinguishers shall be in accordance with NFPA 10.
(D) All fire protection systems and equipment, such as the fire alarm
system, smoke detectors, and portable extinguishers, shall be inspected,
tested and maintained in accordance with the applicable NFPA fire codes
and the results documented.
(vii) An annual fire and safety inspection shall be conducted at the
facility by qualified Department of Veterans Affairs personnel. If a
review of past Department of Veterans Affairs inspections or inspections
made by the local authorities indicates that a fire and safety
inspection would not be necessary, then the visit to the facility may be
waived.
(2) Conform to existing standards of State safety codes and local
and/or State health and sanitation codes.
(3) Be licensed under State or local authority.
(4) Where applicable, be accredited by the State.
(5) Comply with the requirements of the ''Confidentiality of Alcohol
and Drug Abuse Patient Records'' (42 CFR part 2) and the
''Confidentiality of Certain Medical Records'' (38 U.S.C. 7332), which
shall be part of the contract.
(6) Demonstrate an existing capability to furnish the following:
(i) A supervised, alcohol and drug free environment, including active
affiliation with Alcoholics Anonymous (AA) programs.
(ii) Staff sufficient in numbers and position qualifications to carry
out the policies, responsibilities, and programs of the facility.
(iii) Structured activities.
(iv) Appropriate group activities.
(v) Monitoring medications.
(vi) Supportive social service.
(vii) Individual counseling as appropriate.
(viii) Opportunities for learning/development of skills and habits
which will enable Department of Veterans Affairs sponsored residents to
adjust to and maintain freedom from dependence on or involvement with
alcohol or drug abuse or dependence during or subsequent to leaving the
facility.
(ix) Support for the individual desire for sobriety (alcohol/drug
abuse-free life style).
(x) Opportunities for learning, testing, and internalizing knowledge
of illness/recovery process, and to upgrade skills and improve personal
relationships.
(7) Data normally maintained and included in a medical record as a
function of compliance with State or community licensing standards will
be accessible.
(b) Representatives of the Department of Veterans Affairs will
inspect the facility prior to award of a contract to assure that
prescribed requirements can be met. Inspections may also be carried out
at such other times as deemed necessary by the Department of Veterans
Affairs.
(c) All requirements in this rule and Department of Veterans Affairs
reports of inspection of residential facilities furnishing treatment and
rehabilitation services to eligible veterans shall, to the extent
possible, be made available to all government agencies charged with the
responsibility of licensing or otherwise regulating or inspecting such
institutions.
(d) An individual case record will be created for each client which
shall be maintained in security and confidence as required by the
''Confidentiality of Alcohol and Drug Abuse Patient Records'' (42 CFR
part 2) and the ''Confidentiality of Certain Medical Records'' (38
U.S.C. 7332), and will be made available on a need to know basis to
appropriate Department of Veterans Affairs staff members involved with
the treatment program of the veterans concerned.
(Authority: 38 U.S.C. 1720A)
(47 FR 57708, Dec. 28, 1982)
38 CFR 17.53d Limitations on payment for alcohol and drug dependence or
abuse treatment and rehabilitation.
The authority to enter into contracts shall be effective for any
fiscal year only to such extent or in such amounts as are provided in
appropriation acts, and payments shall not exceed these amounts.
(Authority: Pub. L. 96-22, 38 U.S.C. 1720A)
(47 FR 57708, Dec. 28, 1982)
38 CFR 17.53d Medical Care for Survivors and Dependents of Certain Veterans
38 CFR 17.54 Medical care for survivors and dependents of certain
veterans.
(a) Medical care may be provided for --
(1) The spouse or child of a veteran who has a total disability,
permanent in nature, resulting from a service-connected disability, and
(2) The surviving spouse or child of a veteran who --
(i) Died as a result of a service-connected disability, or
(ii) At the time of death has a total disability, permanent in nature
resulting from a service-connected disability and --
(3) The surviving spouse or child of a person who died in the active
military, naval or air service in the line of duty and not due to such
person's own misconduct --
(Authority: 38 U.S.C. 1713(a)
who are not otherwise eligible for medical care as beneficiaries of
the Armed Forces under the provisions of chapter 55 of title 10 U.S.C.
(CHAMPUS) and --
(Authority: 38 U.S.C. 1713)
(4) An eligible child who is pursuing a full-time course of
instruction approved under title 38, U.S.C., chapter 36, and who incurs
a disabling illness or injury while pursuing such course; between
terms, semesters or quarters; or during a vacation or holiday period;
which is not the result of his or her own willful misconduct and which
results in the inability to continue or resume the chosen program of
education shall remain eligible for medical care until:
(i) The end of the six-month period beginning on the date the
disability is removed; or
(ii) The end of the two-year period beginning on the date of the
onset of the disability; or
(iii) The twenty-third birthday of the child,
whichever occurs first.
(Authority: 38 U.S.C. 1713(c))
(b) Medical care authorized by paragraph (a) of this section shall be
provided in the same or similar manner and subject to the same or
similar limitations as medical care furnished to certain dependents and
survivors of active duty and retired members of the Armed Forces being
furnished such care as beneficiaries of the Armed Forces. Furthermore,
it shall be provided in accordance with the terms and conditions set
forth in an agreement between the Secretary of Veterans Affairs and the
Secretary of Defense under which the Secretary of Veterans Affairs shall
include coverage for such medical care under the contract, or contracts,
entered into to provide medical care to beneficiaries of the Armed
Forces, and under which the Secretary of Defense shall fully reimburse
the Secretary of Defense for all costs and expenditures made for the
purpose of affording the medical care authorized in this section.
(c) In limited situations, the Chief Medical Director or designee may
authorize care and treatment to the class of beneficiaries covered by
this section in Department of Veterans Affairs medical facilities which
are equipped to provide the care and treatment, and which are not
otherwise being utilized for the care of veterans. Such medical care
may be furnished on either an inpatient or outpatient basis and may be
furnished in either Department of Veterans Affairs medical centers or
Department of Veterans Affairs outpatient clinics.
(Authority: 38 U.S.C. 1713(b))
(39 FR 1843, Jan. 15, 1974, as amended at 45 FR 6937, Jan. 31, 1980;
47 FR 58248, Dec. 30, 1982; 48 FR 14378, Apr. 4, 1983)
38 CFR 17.54 Medical Care for Czechoslovakian and Polish Veterans
38 CFR 17.55 Medical care for certain former members of Czechoslovakian
and Polish Armed Forces.
Hospital, domiciliary care, and medical services may be furnished to
former members of the Armed Forces of Poland or Czechoslovakia if they:
(a) Served during World War I or World War II in armed conflict
against an enemy of the United States, and
(b) Served during the same period in or with the Armed Forces of
France or Great Britain, and
(c) Have been citizens of the United States for 10 years, and
(d) Are not entitled to payment for equivalent care and services
under a program established by the foreign government concerned for
persons who served in its Armed Forces in World War I or World War II.
Such care or services may be furnished those individuals to the same
extent as if they had served in the U.S. Armed Forces. Qualifying
service may be established through an authenticated certification from
the French Ministry of Defense or the British War Office which clearly
indicates such military service, or otherwise through satisfactory
evidence, under guidelines prescribed by the Chief Medical Director, of
having served in the Czechoslovakian or Polish Armed Forces and in or
with the Armed Forces of France or Great Britain while in armed conflict
against an enemy of the United States during World War I or World War
II.
(Authority: 38 U.S.C. 109c)
(43 FR 57144, Dec. 6, 1978)
38 CFR 17.55 Vocational Training and Health-Care Eligibility Protection for Pension Recipients
38 CFR 17.56 Medical care for veterans receiving vocational training
under 38 U.S.C. chapter 15.
Hospital care, nursing home care and medical services may be provided
to any veteran who is participating in a vocational training program
under 38 U.S.C. chapter 15.
(a) For purposes of determining eligibility for this medical benefit,
the term participating in a vocational training program under 38 U.S.C.
chapter 15 means the same as the term participating in a rehabilitation
program under 38 U.S.C. chapter 31 as defined in 17.48(j). Eligibility
for such medical care will continue only while the veteran is
participating in the vocational training program.
(b) The term hospital care and medical services means class V dental
care, priority III medical services, nursing home care and non-VA
hospital care and/or fee medical/dental care if VA is unable to provide
the required medical care economically at VA or other government
facilities because of geographic inaccessibility or because of the
unavailability of the required services at VA facilities.
(Authority: 38 U.S.C. 1524, 1525, 1516)
(51 FR 19330, May 29, 1986, as amended at 56 FR 3422, Jan. 30, 1991)
38 CFR 17.56a Protection of health-care eligibility.
Any veteran whose entitlement to VA pension is terminated by reason
of income from work or training shall, subject to paragraphs (a) and (b)
of this section, retain for 3 years after the termination, the
eligibility for hospital care, nursing home care and medical services
(not including dental) which the veteran otherwise would have had if the
pension had not been terminated as a result of the veteran's receipt of
earnings from activity performed for remuneration or gain by the veteran
but only if the veteran's annual income from sources other than such
earnings would, taken alone, not result in the termination of the
veteran's pension.
(a) A veteran who participates in a vocational training program under
38 U.S.C. chapter 15 is eligible for the one-time 3 year retention of
hospital care, nursing home care and medical services benefits at any
time that the veteran's pension is terminated by reason of income from
the veteran's employment.
(b) A veteran who does not participate in a vocational training
program under 38 U.S.C. chapter 15 is eligible for the one-time 3 year
retention of hospital care and medical services benefits only if the
veteran's pension is terminated by reason of income from the veteran's
employment during the period February 1, 1985 through January 31, 1989.
(Authority: 38 U.S.C. 1524, 1525, 1516)
(51 FR 19330, May 29, 1986)
38 CFR 17.56a Readjustment Counseling
38 CFR 17.57 Readjustment counseling and related mental health
services.
(a) Readjustment counseling, including a general mental and
psychological assessment to ascertain whether an individual has mental
or psychological problems associated with readjustment to civilian life,
and, if indicated, related mental health services will be furnished,
under the conditions stated, to veterans who have served on active duty
during the Vietnam era.
(Authority: 38 U.S.C. 1712A; Pub. L. 99-166)
(b) Mental health services may be provided, subject to the conditions
of 17.60(f), only when the Department of Veterans Affairs physician or
psychologist who conducts the general assessment determines that the
veteran needs such services to facilitate readjustment to civilian life.
In areas where no Department of Veterans Affairs physican or
psychologist is available, the Chief Medical Director or designee may
arrange for contracts with physicians or psychologists to conduct such
assessments.
(c) When the physician or psychologist conducting the assessment
determines that the veteran needs services, authorized under paragraph
(a) or (b) of this section, to facilitate readjustment to civilian life,
the needed readjustment counseling and related mental health services
will be provided within the Department of Veterans Affairs or other
government facilities, or, when such facilities are not capable of
furnishing the services required or cannot do so economically because of
geographic inaccessibility, by contract under 17.58.
(d) Mental health services under 17.60f may be furnished if
essential to the effective treatment and readjustment of a veteran
furnished services under paragraph (b) of this section.
(Authority: 38 U.S.C. 1712A)
(45 FR 39847, June 12, 1980; 45 FR 41942, June 23, 1980, as amended
at 47 FR 58248, Dec. 30, 1982; 51 FR 15990, Apr. 22, 1986)
38 CFR 17.58 Contracts for readjustment counseling or mental health
services.
(a) Contracts for conducting general mental and psychological
assessments authorized to be contracted for under 17.57(b) may be
awarded by the Chief Medical Director or designee, but only to
responsible contractors determined by that official to be fully capable
of making the general assessments.
(b) Contracts for providing readjustment counseling and related
mental health services authorized under 17.57 may be awarded by the
Chief Medical Director or designee in accordance with applicable
Department of Veterans Affairs and Federal procurement procedures.
(c) A provider of readjustment counseling and related mental health
services must meet the following requirements to be eligible for award
of a contract under paragraph (b) of this section.
(1) Be committed in principle, as evidenced by the provider's by-laws
or established statement of goals and procedures, to furnishing
readjustment or rehabilitative services to Vietnam era veterans, or have
a mission statement reflecting a commitment to provide mental health or
rehabilitative services.
(2) Demonstrate by means of an established written protocol, plan or
procedure an existing capability to furnish Vietnam era veterans the
following services:
(i) Family counseling,
(ii) Job and career counseling,
(iii) Substance abuse counseling,
(iv) Psychological counseling,
(v) Social or cultural counseling,
(vi) Physical assessment, medical treatment or therapy, and
(vii) Peer group therapy.
(3) Demonstrate, where incapable of furnishing directly all of the
services listed in paragraph (c)(2) of this section, the following:
(i) The manner by which it will assure that those services, which it
is not capable of furnishing directly, will be delivered when needed,
for example through an agreement with a community mental health center,
consulting psychiatrist, or other mechanism,
(ii) The existence of systems to assure that such services as the
provider is incapable of furnishing directly are delivered and to assure
that the quality of such services is satisfactory,
(iii) That the consultant or other entity with which the primary
contractor arranges for providing services listed in paragraph (c)(2) of
this section, meets the other requirements of this paragraph as a
prerequisite of contract award.
(4) Have evidence, prior to submitting an application to contract
under this section, that the provider has satisfactorily furnished to
other Vietnam era veterans those services for which the provider seeks
to contract.
(5) Include at least one psychiatrist or clinical psychologist on its
regular staff (in the case of a contract proposal from an entity which
does not have either a psychiatric or clinical psychologist on its
regular staff, but which lists a psychiatric or clinical psychologist as
a consultant who is on call during regular working hours or otherwise
determined by the Chief Medical Director or designee to be reasonably
available to perform services under the contract, at no additional cost
to the Department of Veterans Affairs, this staffing criterion may be
considered to be met),
(6) Include at least one staff member who is a Vietnam era veteran or
who has had documented, relevant experience in working with Vietnam era
veterans, and
(7) Have a commitment to a set of established practices which include
the following:
(i) Individualized plans for rendering readjustment counseling and
related mental health services to each Vietnam era veteran,
(ii) Scrupulous safeguarding of the records, reports or other private
information of clients against disclosure, except with the client's
informed written consent, and
(iii) A spirit or atmosphere of helpfulness and dedication to
stimulate motivation for self help in the clients.
(d) In making and approving awards under this section the Chief
Medical Director or designee will give preference to the following
factors:
(1) Experience in rendering readjustment counseling and related
mental health services to Vietnam era veterans.
(2) Evidence of commitment to the purpose of 38 U.S.C. 1712A, and to
the interest of Vietnam era veterans generally.
(3) The degree to which the anticipated quantity and quality of the
proposed services appears favorable in relation to the rates of
compensation and other fees requested, particularly as contrasted with
comparable data from other providers.
(4) Substantial and reliable evidence that the provider's staff
conveys a spirit of helpfulness to its clientele and successfully
motivates them for self help, particularly if this can be objectively
demonstrated.
(Authority: 38 U.S.C. 1712A)
(45 FR 39847, June 12, 1980, as amended at 47 FR 58249, Dec. 30,
1982; 54 FR 34983, Aug. 23, 1989)
38 CFR 17.58 Outpatient Treatment
38 CFR 17.59 Outpatient care for research purposes.
Subject to the provisions of 17.62(g), any person who is a bona fide
volunteer may be furnished outpatient treatment when the treatment to be
rendered is part of an approved Department of Veterans Affairs research
project and there are insufficient veteran-patients suitable for the
project.
(35 FR 11470, July 17, 1970)
38 CFR 17.60 Eligibility for outpatient services.
(a) VA shall furnish on an ambulatory or outpatient basis medical
services as are needed, to the following applicants under the conditions
stated, except that applications for dental treatment must also meet the
provisions of 17.123.
(Authority: 38 U.S.C. 1712)
(1) For service-connected disability. Medical services on an
ambulatory or outpatient basis shall be provided to any veteran for a
service-connected disability (including a disability that was incurred
or aggravated in the line of duty and for which the veteran was
discharged or released from the active military, naval, or air service).
(2) For verterans 50 percent or more disabled from a
service-connected disability. Medical services on an ambulatory or
outpatient basis shall be provided for any disability of a veteran who
has a service-connected disability rated at 50 percent or more.
(3) For veterans in receipt of compensation under section 1151 of
title 38 U.S.C. Medical services on an ambulatory or outpatient basis
shall be provided to any veteran for a disability for which the veteran
is in receipt of compensation under section 1151 of title 38 U.S.C. or
for which the veteran would be entitled to compensation under that
section (but in the case of such a suspension, such medical services may
be furnished only to the extent that such person's continuing
eligibility for medical services is provided for in the judgment or
settlement).
(4) For compensation and pension examinations. A compensation and
pension examination shall be performed for any veteran who is directed
to have such an examination by VA.
(Authority: 38 U.S.C. 111 and 501)
(5) For adjunct treatment. Medical services on an ambulatory or
outpatient basis shall be provided to veteans for an adjunct
nonservice-connected condition associated with and held to be
aggravating a disability from a disease or injury adjudicated as being
service-connected.
(b) VA shall furnish on an ambulatory or outpatient basis medical
services as necessary to the following applicants in preparation for
hospital admission; to obviate the need of a hospital admission; or
such medical services necessary to complete an episode of treatment
incident to hospital, nursing home, or domiciliary care, under the
conditions stated below except that applicants for dental treatment must
also meet the applicable provisions of 17.123.
(1) For veterans with a service-connected rating of 30 to 40 percent.
Medical services on an ambulatory or outpatient basis shall be provided
to any veteran who has service-connected disability rated at 30 or 40
percent.
(2) For veterans whose annual income does not exceed the maximum
annual rate of pension with aid and attendance. Medical services on an
ambulatory or outpatient basis shall be provided to any veteran who is
eligible for hospital care and whose annual income does not exceed the
maximum annual rate of pension that would be applicable to the veteran
if the veteran were eligible for pension.
(Authority: 38 U.S.C. 1503, 1521(d), and 1710(a))
(c) The term ''shall furnish'' in paragraphs (a) and (b) means that,
if the veteran is in immediate need of outpatient medical services, VA
shall furnish care at the VA facility where the veteran applies. If the
needed medical services are not available there, VA shall arrange for
care at the nearest VA medical facility or Department of Defense
facility (with which VA has a sharing agreement) that can provide the
needed care. If VA and Department of Defense facilities are not
available, VA shall arrange for care on a fee basis, but only if the
veteran is eligible to receive medical services in non-VA facilities
under 17.50b.
If the veteran is not in immediate need of outpatient medical
services, VA shall schedule the veteran for care where the veteran
applied, if the schedule there permits, or refer the veteran for
scheduling to the nearest VA medical center or Department of Defense
facility (with which VA has a sharing agreement).
(d) VA may furnish on an ambulatory or outpatient basis medical
services as needed to the following applicants, except that applications
for dental treatment must also meet the provisions of 17.123.
(1) For former prisoners of war. Medical services on an ambulatory
or outpatient basis may be provided to any veteran who is a former
prisoner of war.
(2) World War I and Mexican border period. Medical services on an
ambulatory or outpatient basis may be provided to any veteran of World
War I or the Mexican border period.
(3) For veterans who are housebound or in need of aid and attendance.
Medical services on an ambulatory or outpatient basis may be provided
to any veteran who is in receipt of increased pension or additional
compensation or allowances based on the need of regular aid and
attendance or by reason of being permanently housebound (or who, but for
receipt of retired pay, would be in receipt of such pension,
compensation or allowance).
(4) For Commonwealth Army Veterans and New Philippine Scouts.
Medical services on an ambulatory or outpatient basis may be furnished
to Commonwealth Army veterans and New Philippine Scouts within the
limits of facilities in the United States over which the VA has direct
jurisdiction or other Federal facilities with which the Secretary
contracts, for the treatment of service-connected disabilities.
(Authority 38 U.S.C. 1734)
(5) For veterans participating in a rehabilitation program under 38
U.S.C. chapter 31. Medical services on an ambulatory or outpatient
basis may be provided as determined medically necessary for a veteran
participating in a rehabilitation program under 38 U.S.C. chapter 31 as
defined in 17.48(j).
(e) VA may furnish on an ambulatory or outpatient basis medical
services necessary in preparation for hospital admission to the
following applicants; to obviate the need of a hospital admission; or
such medical services necessary to complete an episode of treatment
incident to hospital, nursing home, or domiciliary care, under the
conditions stated below except that applications for dental treatment
must also meet the applicable provisions of 17.123. Medical services to
complete an episode of hospital, nursing home, or domiciliary care may
not be provided for a period in excess of 12 months after discharge from
such care, except where a staff physician determines that a longer
period is required by virtue of the disability being treated.
(1) For any veteran who has a service-connected disability rating of
less than 30 percent. Medical services on an ambulatory or outpatient
basis may be provided to veterans who have a service-connected
disability rating of less than 30 percent; including zero percent
service-connected veterans.
(2) For veterans exposed to toxic substances in Vietnam. Medical
services on an ambulatory or outpatient basis may be provided to
veterans who served during the Vietnam Era in the Republic of Vietnam
and who claim their need for treatment is as a result of exposure to
toxic substances while in Vietnam.
(3) For veterans exposed to ionizing radiation. Medical services on
an ambulatory or outpatient basis may be provided to veterans who claim
their need for treatment is as a result of exposure to ionizing
radiation following the detonation of a nuclear device during such
service or who were exposed to ionizing radiation following the
detonation of such devices in Japan during World War II.
(4) Category ''A'' veterans whose income exceeds the maximum rate of
pension. Medical services on an ambulatory or outpatient basis may be
provided to veterans who were not otherwise eligible and whose income
exceeds the pension rate of a veteran in need of regular aid and
attendance but is below that of a Category ''A'' veteran based upon
completion of the ''Means Test''. Section 1722 of title 38 U.S.C. lists
the criteria for the determination of inability to defray necessary
expenses; income thresholds (Means Test).
(5) Category ''B'' veterans. Medical services on an ambulatory or
outpatient basis may be provided to veterans who are determined to be
Category ''B'' based upon completion of the ''Means Test''.
(6) Category ''C'' veterans. Medical services on an ambulatory or
outpatient basis may be provided to veterans who are determined to be
Category ''C'' based upon completion of the ''Means Test'' and who agree
to make the co-payment.
(7) Veterans eligible for hospital care under 38 U.S.C. 1710.
Ambulatory or outpatient medical services may be provided to any veteran
eligible for hospital care under 38 U.S.C. 1710 not otherwise specified
above.
(f) Home health services. Home health services determined by VA to
be necessary for effective and economical treatment of a disability may
be furnished to any veteran to include home improvement and structural
alterations as are necessary to assure continuation of treatment for the
veteran's disability or to provide access to the home or to essential
lavatory and sanitary facilities. The cost to VA or reimbursement by VA
to the veteran will not exceed $4,100 for home improvements or
structural alterations for veterans being treated under 17.60(a)
(1)-(3) and will not exceed $1,200 for any other veteran being treated
under this section.
(Authority: 38 U.S.C. 1717)
(55 FR 20150, May 15, 1990, as amended at 58 FR 25565, Apr. 27, 1993)
38 CFR 17.60a Outpatient medical services for military retirees and
other beneficiaries.
Outpatient medical services for military retirees and other
beneficiaries for which charges shall be made as required by 17.62, may
be authorized for persons properly referred by authorized officials of
other Federal agencies for which the Secretary of Veterans Affairs may
agree to render such service under the conditions stipulated by the
Secretary and pensioners of nations allied with the United States in
World War I and World War II when duly authorized.
(32 FR 13815, Oct. 4, 1967, as amended at 45 FR 6937, Jan. 31, 1980;
47 FR 58249, Dec. 30, 1982)
38 CFR 17.60b Outpatient medical services for Department of Veterans
Affairs employees and others in emergencies.
(a) Outpatient medical services for which charges shall be made as
required by 17.62 may be authorized for employees of the Department of
Veterans Affairs, their families, and the general public in emergencies,
subject to conditions stipulated by the Secretary of Veterans Affairs.
(b) Emergency outpatient medical services may be authorized for
individuals attending national conventions of Department of Veterans
Affairs recognized services organizations, if the service organization
has contracted with the Department of Veterans Affairs to reimburse the
Department of Veterans Affairs for the cost of such emergency medical
services. Reimbursement is not required for individuals eligible for
such services under other provisions of this part.
(Authority: 38 U.S.C. 1711(c)(1))
(47 FR 58249, Dec. 30, 1982)
38 CFR 17.60c Sharing specialized medical resources on an outpatient
basis.
The use of a specialized medical resource or any medical service
incidental to, and necessary for, its use under a sharing agreement
entered into under 17.210, may be authorized on an outpatient basis if:
(a) In the case of a specialized medical resource and services made
available by the other party to the sharing agreement, the patient is a
veteran eligible under any provision of 17.60, or
(b) In the case of a specialized medical resource and services
available within the limits of Department of Veterans Affairs
facilities, the patient is a person designated by the other party to the
sharing agreement as a patient to be benefited under the agreement.
(32 FR 13816, Oct. 4, 1967)
38 CFR 17.60d Prescriptions filled.
Any prescription, which is not part of authorized Department of
Veterans Affairs hospital or outpatient care, for drugs and medicines
ordered by a private or non-Department of Veterans Affairs doctor of
medicine or doctor of osteopathy duly licensed to practice in the
jurisdiction where the prescription is written, shall be filled by a
Department of Veterans Affairs pharmacy, provided:
(a) The prescription is for:
(1) A veteran who by reason of being permanently housebound or in
need of regular aid and attendance is in receipt of increased
compensation under 38 U.S.C. chapter 11, or increased pension under
3.1(u) (Section 306 Pension) or 3.1(w) (Improved Pension), of this
title, as a veteran of the Mexican Border Period, World War I, World War
II, the Korean Conflict, or the Vietnam Era (or, although eligible for
such pension, is in receipt of compensation as the greater benefit), or
(2) A veteran in need of regular aid and attendance who was formerly
in receipt of increased pension as described in paragraph (a)(1) of this
section whose pension has been discontinued solely by reason of excess
income, but only so long as such veteran's annual income does not exceed
the maximum annual income limitation by more than $1,000, and
(Authority: Pub. L. 95-588)
(b) The drugs and medicines are prescribed as specific therapy in the
treatment of any of the veteran's illnesses or injuries.
(32 FR 13816, Oct. 4, 1967, as amended at 36 FR 4782, Mar. 12, 1971;
45 FR 6937, Jan. 31, 1980; 47 FR 58249, Dec. 30, 1982)
38 CFR 17.60e Prescriptions in Alaska, and territories and possessions.
In Alaska and territories and possessions, where there are no
Department of Veterans Affairs pharmacies, the expenses of any
prescriptions filled by a private pharmacist which otherwise could have
been filled by a Department of Veterans Affairs pharmacy under 17.60d,
may be reimbursed.
(32 FR 13816, Oct. 4, 1967)
38 CFR 17.60f Mental health services.
(a) Following the death of a veteran, bereavement counseling
involving services defined in 17.30(l)(2) of this part, may be
furnished to persons who were receiving mental health services in
connection with treatment of the veteran under 17.47, 17.54, 17.57 or
17.60 (a), (b), or (f) of this part, prior to the veteran's death, but
may only be furnished in instances where the veteran's death had been
unexpected or occurred while the veteran was participating in a VA
hospice or similar program. Bereavement counseling may be provided only
to assist individuals with the emotional and psychological stress
accompanying the veteran's death, and only for a limited period of time,
as determined by the Medical Center Director, but not to exceed 60 days.
The Medical Center Director may approve a longer period of time when
medically indicated.
(b) For purposes of paragraph (a) of this section, an unexpected
death is one which occurs when in the course of an illness the provider
of care did not or could not have anticipated the timing of the death.
Ordinarily, the provider of care can anticipate the patient's death and
can inform the patient and family of the immediacy and certainty of
death. If that has not taken place, a death can be described as
unexpected.
(Authority: 38 U.S.C. 1701(6)(B))
(53 FR 7186, Mar. 7, 1988)
38 CFR 17.60g Priorities for medical services.
Unless compelling medical reasons indicate otherwise, eligible
veterans shall be furnished outpatient medical services on a priority
basis in the following order:
(a) To any veteran for a service-connected disability.
(b) To any veteran with a service-connected disability, rated at 50
percent or more.
(c) To any veteran with a disability rated as service-connected,
including any veteran being examined to determine the existence or
rating of a service-connected disability.
(Authority: Pub. L. 96-22, sec. 101)
(d) To any veteran who is a former prisoner of war or to any veteran
eligible for treatment for conditions which may have resulted from
exposure to dioxin or toxic substances or ionizing radiation.
(Authority: Pub. L. 97-37, sec. 5(c); Pub. L. 97-72, sec. 102(b))
(e) To any veteran eligible under the provisions of 17.60(i).
(Authority: 38 U.S.C. 1712 (i))
(f) To any veteran who is in receipt of pension under 38 U.S.C.
1521.
(g) To any other nonservice-connected veteran deemed unable to defray
the expenses of necessary care as determined by 17.48(d)(1).
(h) To any nonservice-connected veteran deemed unable to defray the
expenses of necessary care as determined by 17.48(d)(2).
(i) To any nonservice-connected veteran eligible for VA hospital care
under 17.47(d) if the veteran agrees to pay the United States an amount
as determined by 17.48(e).
(Authority: 38 U.S.C. 1712; sec. 19011, Pub. L. 99-272)
(47 FR 58249, Dec. 30, 1982, as amended at 51 FR 25068, July 10,
1986)
38 CFR 17.60h Immunizations under national programs.
Veterans receiving care for any disability in a Department of
Veterans Affairs health care facility may have administered to them
vaccines for immunization as part of a national immunization program.
Participation by veterans in a national immunization program must be
voluntary.
(Authority: 38 U.S.C. 1712(j))
(45 FR 6938, Jan. 31, 1980)
38 CFR 17.60h Breaking Appointments
38 CFR 17.61 Refusal of treatment by unnecessarily breaking
appointments.
A patient under medical treatment who breaks an appointment without a
reasonable excuse will be informed that breaking an additional
appointment will be deemed to be a refusal to accept VA treatment. If
such a patient fails to keep a second appointment, without at least 24
hours notice, such action will be deemed as a refusal to accept VA
treatment. Thereafter, no further treatment will be furnished until a
new application is filed, and the veteran has agreed to cooperate by
keeping appointments. Treatment will not be discontinued until the
treating physician has reviewed the treatment files, concurred in the
action and signed a statement to this effect in the record.
Consideration will be given to the veteran's ability to make a rational
decision concerning the need for medical care and/or examination. The
veteran will be advised of the final decision. Nothing in this section
will be construed to prevent treatment for an emergent condition that
may arise during or subsequent to this action. Where an appointment is
broken without notice and satisfactory reasons are advanced for breaking
the appointment and circumstances were such that notice could not be
given, the patient will not be deemed to have refused treatment.
(Authority: 38 U.S.C. 7304)
(51 FR 8672, Mar. 13, 1986)
38 CFR 17.61 Charges, Waivers, and Collections
38 CFR 17.62 Charges for care or services.
Charges at the indicated rates shall be made for Department of
Veterans Affairs hospital care or medical services (including, but not
limited to, dental services, supplies, medicines, orthopedic and
prosthetic appliances, and domiciliary or nursing home care) as follows:
(a) Furnished in error or on tentative eligibility. Charges at rates
prescribed by the Chief Medical Director shall be made for inpatient or
outpatient care or services (including domiciliary care) authorized for
any person on the basis of eligibility as a veteran or a tentative
eligibility determination under 17.35 but he or she was subsequently
found to have been ineligible for such care or services as a veteran
because the military service or any other eligibility requirement was
not met, or
(b) Furnished in a medical emergency. Charges at rates prescribed by
the Chief Medical Director shall be made for any inpatient or outpatient
care or services rendered any person in a medical emergency who was not
eligible for such care or services as a veteran, if:
(1) The care or services were rendered as a humanitarian service,
under 17.46(c)(1) or 17.60b to a person neither claiming eligibility
as a veteran nor for whom the establishment of eligibility as a veteran
was expected, or
(2) The person for whom care or services were rendered was a
Department of Veterans Affairs employee or a member of a Department of
Veterans Affairs employee's family; or
(c) Furnished beneficiaries of the Department of Defense or other
Federal agencies. Except as provided for in paragraph (f) of this
section and the second sentence of this paragraph, charges at rates
prescribed by the Office of Management and Budget shall be made for any
inpatient or outpatient care or services authorized for a member of the
Armed Forces on active duty or for any beneficiary or designee of any
other Federal agency. Charges for services provided a member or former
member of a uniformed service who is entitled to retired or retainer
pay, or equivalent pay, will be at rates prescribed by the Secretary
(E.O. 11609, dated July 22, 1971, 36 FR 13747), or
(d) Furnished pensioners of allied nations. Charges at rates
prescribed by the Chief Medical Director shall be made for any inpatient
or outpatient care or services rendered a pensioner of a nation allied
with the United States in World War I and World War II; or
(e) Furnished under sharing agreements. Charges at rates agreed upon
in an agreement for sharing specialized medical resources shall be made
for all medical care or services, either on an inpatient or outpatient
basis, rendered to a person designated by the other party to the
agreement as a patient to be benefited under the agreement; or
(f) Furnished military retirees with chronic disability. Charges for
subsistence at rates prescribed by the Chief Medical Director shall be
made for the period during which hospital care is rendered when such
care is rendered to a member or former member of the Armed Forces
required to pay the subsistence rate under 17.47 (b)(2) and (c)(2).
(g) Furnished for research purposes. Charges will not be made for
medical services, including transportation, furnished as part of an
approved Department of Veterans Affairs research project, except that if
the services are furnished to a person who is not eligible for the
services as a veteran, the medical care appropriation shall be
reimbursed from the research appropriation at the same rates used for
billings under paragraph (b) of this section.
(h) Furnished for nonservice-connected disabilities. (1) Charges at
rates prescribed by the Secretary shall be made for inpatient or
outpatient care and services rendered a veteran for nonservice-connected
disabilities,
(i) Incident to the veteran's employment and the disability is
covered under a workers' compensation law or plan that provides
reimbursement or indemnification for the cost of such care and services,
(ii) As the result of a motor vehicle accident in a State which
required automobile accident reparations insurance, or
(iii) As the result of a crime of personal violence that occurred in
a State, or a political subdivision of a State, in which a person so
injured is entitled to receive health care and services for that injury
at the expense of the State or subdivision.
(Authority: 38 U.S.C. 1729, sec. 19013, Pub. L. 99-272)
(2) Charges at rates prescribed by the Secretary shall be made for
inpatient or outpatient care and services rendered to a veteran who has
no service-connected disabilities and who is entitled to care, or
reimbursement for the expenses of care, under an insurance policy, or
contract medical, or hospital service agreement, membership, or
subscription contract, or similar agreement for the purpose of
providing, paying for, or reimbursing expenses for health service.
(i) No deductible and/or coinsurance charge prescribed by any such
policy, contract, membership or agreement shall be made to or required
from the otherwise eligible veteran as a condition to receiving care.
(ii) VA medical, financial, and other records shall, to the extent
reasonably necessary and permitted by law, be made available for
inspection and review by the parties to any kind of agreement referred
to in paragraph (h) (1) and (2) of this section with respect to which
recovery or collection sought by VA for the purpose of verifying that
services for which recovery or collection is sought were furnished and
that the provision of such services meets criteria generally applicable
under the health plan contract involved.
(Authority: 38 U.S.C. 1729(h)(i); Pub. L. 99-272)
(3) The method for computing the charges for medical care and
services is based on the Cost Distribution Report, which sets forth the
actual basic costs and per diem rates by type of inpatient care and
outpatient visit. Factors for depreciation of buildings and equipment
and Central Office overhead are added, based on accounting manual
instructions. Additional factors are added for interest on capital
investment and for standard fringe benefit costs covering government
employee retirement and disability costs. The current year billing
rates are projected on prior year actual rates by applying the budgeted
percentage increase. In addition, based on the detail available in the
Cost Distribution Report, VA intends to, on each bill break down the
all-inclusive rate into its three principal components; namely,
physician cost, ancillary services cost, and nursing, room and board
cost. The rates generated by the foregoing methodology are the same
rates prescribed by the Office of Management and Budget and published in
the Federal Register for use under the Federal Medical Care Recovery
Act, 42 U.S.C. sections 2651-2653.
(Authority: 38 U.S.C. 1729; sec. 19013, Pub. L. 99-272)
(4) The reasonable cost of care or services sought to be recovered or
collected from a third party liable under a health plan contract may not
exceed the amount that such third party demonstrates to the satisfaction
of the Secretary it would pay for the care or services in accordance
with the prevailing rates at which the third party makes payments for
comparable care under health plan contracts to facilities (other than
facilities of departments or agencies of the United States) in the same
geographic area.
(Authority: 38 U.S.C. 1729; sec. 19013, Pub. L. 99-272)
(5) Any contract or agreement into which the Secretary enters with a
person under 31 U.S.C. 3718 for collection services to recover
indebtedness owed the United States under this section shall provide,
with respect to such services, that such person is subject to 38 U.S.C.
5701 and 7332.
(Authority: 38 U.S.C. 1729; sec. 19013, Pub. L. 99-272)
(6) Amounts collected or recovered on behalf of the United States
under this section shall be deposited into the Treasury as miscellaneous
receipts.
(Authority: 38 U.S.C. 1729; sec. 19013, Pub. L. 99-272)
(i) Furnished at national conventions. Charges specified in
contractual agreements with Department of Veterans Affairs recognized
service organizations shall be made for emergency medical services
furnished at national conventions of such organizations to individuals
not eligible for such services under other provisions of this part.
(Authority: 38 U.S.C. 1711(c))
(32 FR 11382, Aug. 5, 1967, as amended at 34 FR 7807, May 16, 1969;
35 FR 11470, July 17, 1970; 36 FR 18794, Sept. 22, 1971; 47 FR 50861,
Nov. 10, 1982; 47 FR 58249, Dec. 1982; 52 FR 3010, Jan. 30, 1987)
38 CFR 17.63 Collection of claims.
The collection of claims against persons in default of payment of
charges made under any provision of 17.62 shall be aggressive, on a
timely basis with effective follow-up, and the provisions referable to
claims collections in 1.900 series of this chapter are for application.
(32 FR 11382, Aug. 5, 1967)
38 CFR 17.64 Referrals of compromise settlement offers.
Any offer to compromise or settle any charges or claim for $20,000 or
less asserted by the Department of Veterans Affairs in connection with
the medical program shall be referred as follows:
(a) To Chiefs of Fiscal activities. If the debt represents charges
made under 17.62(a), the compromise offer shall be referred to the
Chief of the Fiscal activity of the facility for application of the
collection standards in 1.900 et seq. of this chapter, provided:
(1) The debt does not exceed $1,000, and
(2) There has been a previous denial of waiver of the debt by a field
station Committee on Waivers and Compromises.
(b) To District Counsel. If the debt in any amount represents
charges for medical services for which there is or may be a claim
against a third party tort-feasor or under workers' compensation laws or
Pub. L. 87-693; 76 Stat. 593 (see 1.903 of this chapter) or involves
a claim contemplated by 1.902 of this chapter over which the Department
of Veterans Affairs lacks jurisdiction, the compromise offer (or request
for waiver or proposal to terminate or suspend collection action) shall
be promptly referred to the field station District Counsel having
jurisdiction in the area in which the claim arose, or
(c) To Committee on Waivers and Compromises. If one of the following
situations contemplated in paragraph (c)(1) through (3) of this section
applies
(1) If the debt represents charges made under 17.62(a), but is not
of a type contemplated in paragraph (a) of this section, or
(2) If the debt represents charges for medical services made under
17.62(b), or
(3) A claim arising in connection with any transaction of the
Veterans Health Administration for which the instructions in paragraph
(a) or (b) of this section or in 17.65a(c) are not applicable, then,
the compromise offer should be referred for disposition under 1.900 et
seq. of this chapter to the field station Committee on Waivers and
Compromises which shall take final action.
(39 FR 26403, July 19, 1974, as amended at 47 FR 58250, Dec. 30,
1982)
38 CFR 17.65 Terminations and suspensions.
Any proposal to suspend or terminate collection action on any charges
or claim for $20,000 or less asserted by the Department of Veterans
Affairs in connection with the medical program shall be referred as
follows:
(a) Of charges for medical services. If the debt represents charges
made under 17.62 (a) or (b) questions concerning suspension or
termination of collection action shall be referred to the Chief of the
Fiscal activity of the station for application of the collection
standards in 1.900 et seq. of this chapter, or
(b) Of other debts. If the debt is of a type other than those
contemplated in paragraph (a) of this section, questions concerning
suspension or termination of collection action shall be referred in
accordance with the same referral procedures for compromise offers
(except the Fiscal activity shall make final determinations in
terminations or suspensions involving claims of $150 or less pursuant to
the provisions of 1.900 et seq. of this chapter.)
(34 FR 7807, May 16, 1969, as amended at 39 FR 26403, July 19, 1974)
38 CFR 17.65a Waivers.
Applications or requests for waiver of debts or claims asserted by
the Department of Veterans Affairs in connection with the medical
program generally will be denied by the facility Fiscal activity on the
basis there is no legal authority to waive debts, unless the question of
waiver should be referred as follows:
(a) Of charges for medical services. If the debt represents charges
made under 17.62(a), the application or request for waiver should be
referred for disposition under 1.900 et seq. of this chapter to the
field facility Committee on Waivers and Compromises which shall take
final action, or
(b) Of claims against third persons and other claims. If the debt is
of a type contemplated in 17.64(b), the waiver question should be
referred in accordance with the same referral procedures for compromise
offers in such categories of claims, or
(c) Other debts. If the debt represents any claim or charges other
than those contemplated in paragraphs (a) and (b) of this section, and
is a debt for which waiver has been specifically provided for by law or
under the terms of a contract, initial action shall be taken at the
station level for referral of the request for waiver through channels
for action by the appropriate designated official. If, however, the
question of waiver may also involve a concurrent opportunity to
negotiate a compromise settlement, the application shall be referred to
the Committee on Waivers and Compromises.
(39 FR 26403, July 19, 1974)
38 CFR 17.65a Disciplinary Control of Beneficiaries Receiving Hospital, Domiciliary or Nursing Home Care
38 CFR 17.66 Authority for disciplinary action.
The good conduct of beneficiaries receiving hospitalization for
observation and examination or for treatment, or receiving domiciliary
or nursing home care in facilities under direct and exclusive
jurisdiction of the Department of Veterans Affairs, will be maintained
by corrective and disciplinary procedure formulated by the Department of
Veterans Affairs. Such corrective and disciplinary measures, to be
selectively applied in keeping with the comparative gravity of the
particular offense, will consist, in respect to hospital patients, of
such penalties as the withholding for a determined period of pass
privileges, exclusion from entertainments, or disciplinary discharge;
and, in respect to domiciled members, such penalties as confinement to
sections or grounds, deprivation of privileges, enforced furlough, or
disciplinary discharge. Also, for any violation of the Department of
Veterans Affairs rules set forth in 1.218, or other Federal laws on
Department of Veterans Affairs property, a beneficiary is subject to the
penalty prescribed for the offense.
(38 FR 24366, Sept. 7, 1973)
38 CFR 17.66 Ceremonies
17.70 (Reserved)
38 CFR 17.71 Services or ceremonies on Department of Veterans Affairs
hospital or center reservations.
(a) Services or ceremonies on Department of Veterans Affairs hospital
or center reservations are subject to the following limitations:
(1) All activities must be conducted with proper decorum, and not
interfere with the care and treatment of patients. Organizations must
provide assurance that their members will obey all rules in effect at
the hospital or center involved, and act in a dignified and proper
manner;
(2) Partisan activities are inappropriate and all activities must be
nonpartisan in nature. An activity will be considered partisan and
therefore inappropriate if it includes commentary in support of, or in
opposition to, or attempts to influence, any current policy of the
Government of the United States or any State of the United States. If
the activity is closely related to partisan activities being conducted
outside the hospital or center reservations, it will be considered
partisan and therefore inappropriate.
(b) Requests for permission to hold services or ceremonies will be
addressed to the Secretary, or the Director of the Department of
Veterans Affairs hospital or center involved. Such applications will
describe the proposed activity in sufficient detail to enable a
determination as to whether it meets the standards set forth in
paragraph (a) of this section. If permission is granted, the Director
of the hospital or center involved will assign an appropriate time, and
render assistance where appropriate. No organization will be given
exclusive permission to use the hospital or center reservation on any
particular occasion. Where several requests are received for separate
activities, the Director will schedule each so as to avoid overlapping
or interference, or require appropriate modifications in the scope or
timing of the activity.
(35 FR 2389, Feb. 3, 1970)
38 CFR 17.71 Reimbursement for Loss By Natural Disaster of Personal Effects of Hospitalized or Nursing Home Patients
38 CFR 17.75 Conditions of custody.
When the personal effects of a patient who has been or is
hospitalized or receiving nursing home care in a Department of Veterans
Affairs hospital or center were or are duly delivered to a designated
location for custody and loss of such personal effects has occurred or
occurs by fire, earthquake, or other natural disaster, either during
such storage or during laundering, reimbursement will be made as
provided in 17.76 and 17.77.
(39 FR 1843, Jan. 15, 1974)
38 CFR 17.76 Submittal of claim for reimbursement.
The claim for reimbursement for personal effects damaged or destroyed
will be submitted by the patient to the Director. The patient will
separately list and evaluate each article with a notation as to its
condition at the time of the fire, earthquake, or other natural disaster
i.e. whether new, worn, etc. The date of the fire, earthquake, or other
natural disaster will be stated. It will be certified by a responsible
official that each article listed was stored in a designated location at
the time of loss by fire, earthquake, or other natural disaster or was
in process of laundering. The patient will further state whether the
loss of each article was complete or partial, permitting of some further
use of the article. The responsible official will certify that the
amount of reimbursement claimed on each article of personal effects is
not in excess of the fair value thereof at time of loss. The
certification will be prepared in triplicate, signed by the responsible
officer who made it, and countersigned by the Director of the medical
center. After the above papers have been secured, voucher will be
prepared, signed, and certified, and forwarded to the Fiscal Officer for
approval, payment to be made in accordance with fiscal procedure. The
original list of property and certificate are to be attached to voucher.
(39 FR 1843, Jan. 15, 1974, as amended at 49 FR 5616, Feb. 14, 1984)
38 CFR 17.77 Claims in cases of incompetent patients.
Where the patient is insane and incompetent, the patient will not be
required to make claim for reimbursement for personal effects lost by
fire, earthquake, or other natural disaster as required under the
provisions of 17.76. The responsible official will make claim for the
patient, adding the certification in all details as provided for in
17.76. After countersignature of this certification by the Director,
payment will be made as provided in 17.76, and the amount thereby
disbursed will be turned over to the Director for custody.
(39 FR 1843, Jan. 15, 1974, as amended at 49 FR 5616, Feb. 14, 1984)
38 CFR 17.77 Reimbursement to Employees for the Cost of Repairing or Replacing Certain Personal Property Damaged or Destroyed by Patients or Members
38 CFR 17.78 Adjudication of claims.
(a) Claims comprehended. Claims for reimbursing Department of
Veterans Affairs employees for cost of repairing or replacing their
personal property damaged or destroyed by patients or members while such
employees are engaged in the performance of their official duties will
be adjudicated by the Director of the medical center concerned. Such
claims will be considered under the following conditions, both of which
must have existed and, if either one is lacking, reimbursement or
payment for the cost or repair of the damaged article will not be
authorized:
(1) The claim must be for an item of personal property normally used
by the employee in his or her day to day employment, e.g., eyeglasses,
hearing aids, clothing, etc., and,
(2) Such personal property was damaged or destroyed by a patient or
domiciliary member while the employee was engaged in the performance of
official duties.
Reimbursement or payment as provided in this paragraph will be made
in a fair and reasonable amount, taking into consideration the condition
and reasonable value of the article at the time it was damaged or
destroyed.
(b) Effective date for filing claim. Claims for reimbursing
employees for the cost of repairing or replacing personal property
damaged as set forth in paragraph (a) of this section, may be considered
under this section only for such property damaged or destroyed on or
after enactment of Pub. L. 87-574, August 6, 1962.
(28 FR 5083, May 22, 1963, as amended at 39 FR 1843, Jan. 15, 1974;
49 FR 5616, Feb. 14, 1984)
38 CFR 17.78 Payment and Reimbursement of the Expenses of Medical Services Not Previously Authorized
38 CFR 17.80 Payment or reimbursement of the expenses of hospital care
and other medical services not previously authorized.
To the extent allowable, payment or reimbursement of the expenses of
care, not previously authorized, in a private or public (or Federal)
hospital not operated by the Department of Veterans Affairs, or of any
medical services not previously authorized including transportation
(except prosthetic appliances, similar devices, and repairs) may be paid
on the basis of a claim timely filed, under the following circumstances:
(a) For veterans with service connected disabilities. Care or
services not previously authorized were rendered to a veteran in need of
such care or services:
(1) For an adjudicated service-connected disability;
(2) For nonservice-connected disabilities associated with and held to
be aggravating an adjudicated service-connected disability;
(3) For any disability of a veteran who has a total disability
permanent in nature resulting from a service-connected disability (does
not apply outside of the States, Territories, and possessions of the
United State, the District of Columbia, and the Commonwealth of Puerto
Rico);
(4) For any illness, injury or dental condition in the case of a
veteran who is participating in a rehabilitation program under 38 U.S.C.
ch. 31 and who is medically determined to be in need of hospital care or
medical services for any of the reasons enumerated in 17.48(j); and
(Authority: 38 U.S.C. 1724, 1728)
(b) In a medical emergency. Care and services not previously
authorized were rendered in a medical emergency of such nature that
delay would have been hazardous to life or health, and
(c) When Federal facilities are unavailable. VA or other Federal
facilities were not feasibly available, and an attempt to use them
beforehand or obtain prior VA authorization for the services required
would not have been reasonable, sound, wise, or practicable, or
treatment had been or would have been refused.
(Authority: 38 U.S.C. 1724, 1728, 7304)
(39 FR 1844, Jan. 15, 1974, as amended at 49 FR 5616, Feb. 14, 1984;
51 FR 8672, Mar. 13, 1986; 56 FR 3422, Jan. 30, 1991)
38 CFR 17.80a Limitations on payment or reimbursement of the costs of
emergency hospital care and medical services not previously authorized.
Claims for payment or reimbursement of the costs of emergency
hospital care or medical services not previously authorized will not be
approved for any period beyond the date on which the medical emergency
ended. For the purpose of payment or reimbursement of the expense of
emergency hospital care or medical services not previously authorized,
an emergency shall be deemed to have ended at that point when a VA
physician has determined that, based on sound medical judgment, a
veteran:
(a) Who received emergency hospital care could have been transferred
from the non-VA facility to a VA medical center for continuation of
treatment for the disability, or
(b) Who received emergency medical services, could have reported to a
VA medical center for continuation of treatment for the disability.
From that point on, no additional care in a non-VA facility will be
approved for payment by VA.
(Authority: 38 U.S.C. 501(c)(1))
(49 FR 15548, Apr. 19, 1984)
38 CFR 17.81 Payment or reimbursement of the expenses of repairs to
prosthetic appliances and similar devices furnished without prior
authorization.
The expenses of repairs to prosthetic appliances, or similar
appliances, therapeutic or rehabilitative aids or devices, furnished
without prior authorization, but incurred in the care of an adjudicated
service-connected disability (or, in the case of a veteran who is
participating in a rehabilitation program under 38 U.S.C. ch. 31 and
who is determined to be in need of the repairs for any of the reasons
enumerated in 17.48(g)) may be paid or reimbursed on the basis of a
timely filed claim, if
(Authority: 38 U.S.C. 1728)
(a) Obtaining the repairs locally was necessary, expedient, and not a
matter of preference to using authorized sources, and
(b) The costs were reasonable, except that where it is determined the
costs were excessive or unreasonable, the claim may be allowed to the
extent the costs were deemed reasonable and disallowed as to the
remainder. In no circumstances will any claim for repairs be allowed to
the extent the costs exceed $125.
(Authority: 38 U.S.C. 1728, 7304)
(33 FR 19011, Dec. 20, 1968, as amended at 49 FR 5616, Feb. 14, 1984;
51 FR 8672, Mar. 13, 1986)
38 CFR 17.82 Claimants.
A claim for payment or reimbursement of services not previously
authorized may be filed by the veteran who received the services (or
his/her guardian) or by the hospital, clinic, or community resource
which provided the services, or by a person other than the veteran who
paid for the services.
(39 FR 1844, Jan. 15, 1974, as amended at 45 FR 53807, Aug. 13, 1980)
38 CFR 17.83 Preparation of claims.
Claims for costs of services not previously authorized shall be on
such forms as shall be prescribed and shall include the following:
(a) The claimant shall specify the amount claimed and furnish bills,
vouchers, invoices, or receipts or other documentary evidence
establishing that such amount was paid or is owed, and
(b) The claimant shall provide an explanation of the circumstances
necessitating the use of community medical care, services, or supplies
instead of Department of Veterans Affairs care, services, or supplies,
and
(c) The claimant shall furnish such other evidence or statements as
are deemed necessary and requested for adjudication of the claim.
(33 FR 19011, Dec. 20, 1968, as amended at 39 FR 1844, Jan. 15, 1974)
38 CFR 17.84 Where to file claims.
Claims for payment or reimbursement of the expenses of services not
previously authorized should be filed as follows:
(a) For services rendered in the U.S. Claims for the expenses of care
or services rendered in the United States, including the Territories or
possessions of the United States, should be filed with the Chief,
Outpatient Service, or Clinic Director of the VA facility designated as
a clinic or jurisdiction which serves the region in which the care or
services were rendered, and
(Authority: 38 U.S.C. 7304)
(b) For services rendered in the Philippines. Claims for the
expenses of care or services rendered in the Republic of the Philippines
should be filed with the Department of Veterans Affairs Regional Office,
Manila, and
(c) For services rendered in Canada. Claims for the expenses of care
or services rendered in Canada should be filed with the Chief,
Outpatient Service, Department of Veterans Affairs Medical Center, 50
Irving Street NW., Washington, DC 20422, and
(d) For services rendered in other foreign countries. Claims for the
expenses of care or services rendered in other foreign countries may be
filed with the American Embassy or consulate in the country where
services were provided. Claims will be developed and forwarded to the
VA Medical Center, Washington, DC, for final action. Claims may be
submitted directly to the VA Medical Center, Washington, DC, if the
veteran has returned to the United States before having had a chance to
contact the appropriate Embassy or Consulate.
(Authority: 38 U.S.C. 7304)
(e) For services rendered in Puerto Rico. Claims for the expenses of
care or services rendered in the Commonwealth of Puerto Rico should be
filed with the Department of Veterans Affairs Medical and Regional
Office Center, San Juan, PR.
(33 FR 19011, Dec. 20, 1968, as amended at 39 FR 1844, Jan. 15, 1974;
45 FR 53807, Aug. 13, 1980; 51 FR 8673, Mar. 13, 1986)
38 CFR 17.85 Timely filing.
Claims for payment or reimbursement of the expenses of medical care
or services not previously authorized must be filed within the following
time limits:
(a) A claim must be filed within 2 years after the date the care or
services were rendered (and in the case of continuous care, payment will
not be made for any part of the care rendered more than 2 years prior to
filing claim), or
(b) In the case of case or services rendered prior to a VA
adjudication allowing service-connection:
(1) The claim must be filed within 2 years of the date the veteran
was notified by VA of the allowance of the award of service-connection.
(2) VA payment may be made for care related to the service-connected
disability received only within a 2-year period prior to the date the
veteran filed the original or reopened claim which resulted in the award
of service-connection but never prior to the effective date of the award
of service-connection within that 2-year period.
(3) VA payment will never be made for any care received beyond this
2-year period whether service connected or not.
(Authority: 38 U.S.C. 7304)
(33 FR 19012, Dec. 20, 1968, as amended at 39 FR 1844, Jan. 15, 1974;
45 FR 53807, Aug. 13, 1980; 51 FR 8673, Mar. 13, 1986)
38 CFR 17.86 Date of filing claims.
The date of filing any claim for payment or reimbursement of the
expenses of medical care and services not previously authorized shall be
the postmark date of a formal claim, or the date of any preceding
telephone call, telegram, or other communication constituting an
informal claim.
(39 FR 1844, Jan. 15, 1974)
38 CFR 17.87 Allowable rates and fees.
When it has been determined that a veteran has received public or
private hospital care, the expenses of which may be paid under 17.80 of
this part, the payment of such expenses shall, except as otherwise
provided in this section, be based on a prospective payment system
similar to that used in the Medicare program for paying for similar
inpatient hospital services in the community. Payment shall be made by
using the HCFA PRICER for each diagnosis-related group (DRG) applicable
to the episode of care.
(a) Payment shall be made of the full prospective payment amount per
discharge, as determined according to the methodology in subparts D and
G of 42 CFR part 412, as appropriate.
(b)(1) In the case of a veteran who was transferred to another
facility before completion of care, VA shall pay the transferring
hospital an amount calculated by the HCFA PRICER for each patient day of
care, not to exceed the full DRG rate as provided in paragraph (a) of
this section. The hospital that ultimately discharges the patient will
receive the full DRG payment.
(2) In the case of a veteran who has transferred from a hospital
and/or distinct part unit excluded by Medicare from the DRG-based
prospective payment system and hospitals that do not participate in
Medicare, the transferring hospital will receive a payment for each
patient day of care not to exceed that provided in paragraph (i) of this
section.
(c) VA shall pay the providing facility the full DRG-based rate
without regard to any copayments or deductible required by any Federal
law that is not applicable to VA.
(d) If the cost of length of a veteran's care exceeds an applicable
threshold amount, as determined by the HCFA PRICER program, VA shall
pay, in addition to the amount payable under paragraph (a) of this
section, an outlier payment calculated by the HCFA PRICER program, in
accordance with subpart F of 42 CFR part 412.
(e) In addition to the amount payable under paragraph (a) of this
section, VA shall pay, for each discharge, an amount to cover the
non-Federal hospital's capital-related costs, kidney, heart and liver
acquisition costs incurred by hospitals with approved transplantation
centers, direct costs of medical education, and the costs of qualified
nonphysician anesthetists in small rural hospitals. These amounts will
be determined by the Chief Medical Director on an annual basis and
published in the ''Notices'' section of the Federal Register.
(f) Payment shall be made only for those services authorized by VA.
(g) Payment by VA shall constitute payment in full and the provider
or agent for the provider may not impose any additional charge on a
veteran or his or her health care insurer for any inpatient services for
which payment is made by VA.
(h) Medical services not included in inpatient operating costs which
the DRG covers (42 CFR part 412) shall be paid or reimbursed only to the
extent they are reasonable and not in excess of rates or fees the
hospital or provider of services charges the general public for similar
services in the community.
(i) Hospital or distinct part hospital units excluded from the
prospective payment system by Medicare and hospitals that do not
participate in Medicare will be paid at the national cost to charge
ratio times the billed charges that are reasonable, usual, customary,
and not in excess of the rates or fees the hospital charges the general
public for similar services in the community.
(j) A hospital participating in an alternative payment system that
has been granted a Federal waiver from the prospective payment system
under the provisions of 42 U.S.C. section 1395f(b)(3) or 42 U.S.C.
section 1395ww(c) for the purposes of Medicare payment shall not be
subject to the payment methodology set forth in this section so long as
such Federal waiver remains in effect. VA pays such a hospital in
accordance with paragraph (i) of this section.
(k) Payments for episodes of hospital care furnished in Alaska that
begin during the period starting on the effective date of this section
through the 364th day thereafter will be in the amount determined by the
HCFA PRICER plus 50 percent of the difference between the amount billed
by the hospital and the amount determined by the PRICER. In order to
cover this special dispensation period, claims for services provided on
the enactment date of this regulation, and extending during this period,
will be accepted for payment by VA until December 31 of the year
following the year in which these regulations were enacted.
(Authority: Section 233, Pub. L. 99-576)
(55 FR 42853, Oct. 24, 1990)
38 CFR 17.88 Retroactive payments prohibited.
When a claim for payment or reimbursement of expenses of services not
previously authorized has not been timely filed in accordance with the
provisions of 17.85, the expenses of any such care or services rendered
prior to the date of filing the claim shall not be paid or reimbursed.
In no event will a bill or claim be paid or allowed for any care or
services rendered prior to the effective date of any law, or amendment
to the law, under which eligibility for the medical services at
Department of Veterans Affairs expense has been established.
(39 FR 1844, Jan. 15, 1974)
38 CFR 17.89 Payment for treatment dependent upon preference
prohibited.
No reimbursement or payment of services not previously authorized
will be made when such treatment was procured through private sources in
preference to available Government facilities.
(39 FR 1844, Jan. 15, 1974)
38 CFR 17.90 Payment of abandoned claims prohibited.
Any informal claim for the payment or reimbursement of medical
expenses which is not followed by a formal claim, or any formal claim
which is not followed by necessary supporting evidence, within 1 year
from the date of the request for a formal claim or supporting evidence
shall be deemed abandoned, and payment or reimbursement shall not be
authorized on the basis of such abandoned claim or any future claim for
the same expenses. For the purpose of this section, time limitations
shall be computed from the date following the date of request for a
formal claim or supporting evidence.
(33 FR 19012, Dec. 20, 1968)
38 CFR 17.91 Appeals.
When any claim for payment or reimbursement of expenses of medical
care or services rendered in non-Department of Veterans Affairs
facilities or from non-Department of Veterans Affairs resources has been
disallowed, the claimant shall be notified of the reasons for the
disallowance and of the right to initiate an appeal to the Board of
Veterans Appeals by filing a Notice of Disagreement, and shall be
furnished such other notices or statements as are required by part 19 of
this chapter, governing appeals.
(33 FR 19012, Dec. 20, 1968)
38 CFR 17.91 Delegations of Authority
38 CFR 17.95 Authority to adjudicate reimbursement claims.
The Department of Veterans Affairs medical installation having
responsibility for the fee basis program in the region or territory
(including the Republic of the Philippines) served by such medical
installation shall adjudicate all claims for the payment or
reimbursement of the expenses of services not previously authorized
rendered in the region or territory.
(39 FR 1844, Jan. 15, 1974)
38 CFR 17.96 Authority to adjudicate foreign reimbursement claims.
The VA Medical Center, Washington, DC, shall adjudicate claims for
the payment or reimbursement of the expenses of services not previously
authorized rendered in any foreign country except the Republic of the
Philippines.
(39 FR 1844, Jan. 15, 1974, as amended at 45 FR 6938, Jan. 31, 1980)
38 CFR 17.98 Authority to approve sharing agreements, contracts for
scarce medical specialist services and contracts for other medical
services.
The Chief Medical Director is delegated authority to enter into
(a) Sharing agreements authorized under the provisions of 38 U.S.C.
8153 and 17.210 and which may be negotiated pursuant to the provisions
of 41 CFR 8-3.204(c);
(b) Contracts with schools and colleges of medicine, osteopathy,
dentistry, podiatry, optometry, and nursing, clinics, and any other
group or individual capable of furnishing such services to provide
scarce medical specialist services at Department of Veterans Affairs
health care facilities (including, but not limited to, services of
physicians, dentists, podiatrists, optometrists, nurses, physicians'
assistants, expanded function dental auxiliaries, technicians, and other
medical support personnel); and
(c) When a sharing agreement or contract for scarce medical
specialist services is not warranted, contracts authorized under the
provisions of 38 U.S.C. 513 for medical and ancillary services. The
authority under this section generally will be exercised by approval of
proposed contracts or agreements negotiated at the health care facility
level. Such approval, however, will not be necessary in the case of any
purchase order or individual authorization for which authority has been
delegated in 17.99. All such contracts and agreements will be
negotiated pursuant to 41 CFR chapters 1 and 8.
(Authority: 38 U.S.C. 512, 513, 7409, 8153)
(45 FR 6938, Jan. 31, 1980)
38 CFR 17.99 Authority to procure fee basis services, community
hospital or nursing home care and individually authorized services.
The Director of a VA medical center, domiciliary, or outpatient
clinic, or his or her designated contracting officer, may enter into:
(a) Arrangements authorized under the provisions of 38 U.S.C. 513 and
1703 for providing medical services on a fee basis or on an individually
authorized basis; (b) contracts or arrangements on an individually
authorized basis pursuant to 17.50b to provide care in public and
private hospitals; and (c) contracts authorized by 38 U.S.C. 1720 for
furnishing nursing home care in community facilities.
(Authority: Pub. L. 99-272, sec. 19011)
(35 FR 18198, Nov. 28, 1970, as amended at 45 FR 6938, Jan. 31, 1980;
56 FR 3422, Jan. 30, 1991)
38 CFR 17.99 Transportation of Claimants and Beneficiaries
38 CFR 17.100 Transportation of claimants and beneficiaries.
(a) Each fiscal year, the Secretary shall determine whether VA will
pay beneficiary travel in that year. If travel will be provided, it
shall be paid in accordance with this section.
(Authority: 38 U.S.C. 111)
(b) Transportation at Government expense shall be authorized for the
following categories of VA beneficiaries, subject to the deductible
established in 17.101, ''Limitations'':
(1) A veteran or other person traveling in connection with treatment
for a service-connected disability (irrespective of percent of
disability).
(2) A veteran with a service-connected disability rated at 30 percent
or more, for treatment of any condition.
(3) A veteran receiving VA pension benefits.
(4) A veteran whose annual income, as determined under 38 U.S.C.
1503, does not exceed the maximum annual rate of pension which would be
payable if the veteran were eligible for pension, or who is unable to
defray the expenses of travel.
(c) Transportation at Government expense shall be authorized for the
following VA beneficiaries without their being subject to the deductible
established in 17.101, ''Limitations'':
(1) A veteran traveling in connection with a scheduled compensation
or pension examination.
(2) A veteran or other person traveling by a specialized mode of
transportation such as an ambulance, ambulette, air ambulance,
wheelchair van, or other vehicle specially designed to transport
disabled individuals provided:
(i) A physician determines that the special mode of travel is
medically required;
(ii) The person is unable to defray the expenses of the travel; and
(iii) The travel is authorized in advance or was undertaken in
connection with a medical emergency such that delay to obtain
authorization would be hazardous to the person's life or health.
(3) Patient is in receipt of VA pension (or has annual income that
does not exceed the pension rate).
(d) For the purposes of this section, the term ''other person''
refers to:
(1) An attendant when it has been determined in advance that the
beneficiary's physical or mental condition requires the presence of an
attendant.
(2) A dependent or survivor receiving care in a VA facility under 38
U.S.C. 1713.
(3) Members of the veteran's immediate family, the veteran's legal
guardian, or the individual in whose household the veteran certifies an
intention to live, when the veteran is receiving services under 38
U.S.C. 1701(6)(B).
(e) A veteran or other person shall be considered unable to defray
the expenses of travel if:
(1) Annual income for the year immediately preceding the application
for benefits does not exceed the maximum annual rate of pension which
would be payable if the person were eligible for pension; or
(2) The person is able to demonstrate that due to circumstances such
as loss of employment, or incurrence of a disability, income in the year
of application will not exceed the maximum annual rate of pension which
would be payable if the person were eligible for pension; or
(3) The person has a service-connected disability rated at least 30
percent; or
(4) The person is traveling in connection with treatment of a
service-connected disability.
(Authority: 38 U.S.C. 111)
(f) Admission. (1) Admission of applicants under 17.47 and 17.54.
(2) Hospital admission for observation and examination.
(g) Readmissions. Hospital readmissions, when medically determined
necessary to observe progress, modify treatment or diet, etc.
(h) Preparatory and posthospital care. When necessary to the
provision of medical services furnished veterans under 17.60(e) and
(f).
(i) Authorized absence. Transportation will not be furnished
beneficiaries who are on authorized absence, to depart from or return to
Department of Veterans Affairs health care facilities, except that if a
patient in such status develops an emergent condition and the patient
(or guardian, if there be one) is without funds to return such patient
to a Department of Veterans Affairs health care facility, travel may be
approved by the Director of the Department of Veterans Affairs facility
to which the patient is to be returned.
(j) Discharge. (1) Subject to the limitations of this section, upon
regular discharge from hospitalization for treatment, observation and
examination, or from nursing home care, return transportation to the
point from which the beneficiary had proceeded; or to another point if
no additional expense be thereby caused the Government.
(2) A patient in a terminal condition may be discharged to his or her
home or transferred to a hospital suitable and nearer that home,
regardless of whether travel so required exceeds that covered in
proceeding to the hospital of original admission.
(3) Transportation may be furnished to a point other than that from
which a patient had proceeded to a hospital upon a showing of bona fide
change of address of the patient's residence during the period of
hospital care.
(4) No return transportation will be supplied a patient who receives
an irregular discharge from hospital or nursing home care, unless the
patient executes an affidavit of inability to defray the expense of
return transportation.
(k) Outpatient services. (1) Outpatient physical examination,
subject to limitations described in 17.101, ''Limitations''.
(2) Outpatient treatment for service-connected conditions, including
adjunct treatment thereof; for veterans under 17.60 (h) and (i); and
for nonservice-connected disabilities of veterans who are participating
in a rehabilitation program under 38 U.S.C. chapter 31 and who are
medically determined to be in need of medical services for any of the
reasons enumerated in 17.48(g), subject to limitations described in
17.101, ''Limitations''.
(Authority: 38 U.S.C. 111(b))
(l) Accessories of transportation. The accessories of
transportation, meals and lodging en route, and accompaniment by an
attendant or attendants, may be authorized when determined necessary for
the travel.
(m) Furnishing transportation and other expenses incident thereto.
In furnishing transportation and other expenses incident thereto, as
defined, VA may (1) issue requests for transportation, meals, and
lodging; or (2) reimburse the claimant, beneficiary or representative,
for payment made for such purpose, upon due certification of vouchers
submitted therefor.
The provisions of 17.100, 17.101 or 17.102 will be complied with
in all instances when transportation costs are claimed.
(Authority: 38 U.S.C. 111)
(n) Transportation of other than Department of Veterans Affairs
beneficiaries. Transportation of beneficiaries of other Federal
agencies, incident to medical services rendered upon requests of those
agencies, will not be furnished by the Department of Veterans Affairs,
except that facility vehicles may be used subject to reimbursement, and
with the exception of beneficiaries of the Bureau of Old Age and
Survivors Insurance in the Philippines on a reimbursable basis under
agreement with that agency. Transportation incident to medical services
rendered allied beneficiaries under agreement will be subject to
reimbursement by the governments concerned.
(21 FR 10387, Dec. 28, 1956)
Editorial Note: For Federal Register citations affecting 17.100,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
38 CFR 17.101 Limitations.
(a) VA shall deduct from amounts payable to persons under 17.100(b),
an amount equal to $3 for each one-way trip to a VA facility, up to a
maximum of $18 in any calendar month. Persons required to make more
than six one-way visits per calendar month will receive full travel
reimbursement after the $18 cap is met.
(b) The provisions of paragraph (a) of this section may be waived
when imposition of the deductible would cause severe financial hardship.
Loss of employment, or sudden illness or disability causing the
beneficiary's income in the year of application to fall below the
maximum level of VA pension, shall be deemed to constitute severe
financial hardship.
(c) Transportation will not be authorized for the cost of travel by
taxi or a hired car for visually impaired veterans (as a special mode),
or by privately owned vehicle in any amount in excess of the cost of
such travel by other forms of public transportation unless public
transportation is not reasonably accessible or would be medically
inadvisable.
(d) Transportation will not be authorized for the cost of travel in
excess of the actual expense incurred by any person as certified by that
person in writing.
(Authority: 38 U.S.C. 111)
(56 FR 52476, Oct. 21, 1991)
38 CFR 17.102 Approval of unauthorized travel of claimants and
beneficiaries.
(a) Payment may be approved for travel performed under 17.100(a)
through (g) without prior authorization only in those cases where the
Department of Veterans Affairs determines that there was a need for
prompt medical care which was approved and:
(1) The circumstances prevented a request for prior travel
authorization, or
(2) Due to Department of Veterans Affairs delay or error prior
authorization for travel was not given, or
(3) There was a justifiable lack of knowledge on the part of a third
party acting for the veteran that a request for prior authorization was
necessary.
(b) In other cases, payment may be approved for such travel without
prior authorization only upon a finding by the Secretary or designee
that failure to secure prior authorization was justified.
(29 FR 11183, Aug. 4, 1964, as amended at 45 FR 6938, Jan. 31, 1980.
Redesignated at 56 FR 52475, Oct. 21, 1991)
38 CFR 17.103 Travel incident to research.
Subject to the provisions of 17.62(g), travel may be furnished when
necessary to provide inpatient or outpatient treatment which is part of
an approved Department of Veterans Affairs research project.
(35 FR 11470, July 17, 1970. Redesignated at 56 FR 52475, Oct. 21,
1991)
38 CFR 17.103 Prosthetic, Sensory, and Rehabilitative Aids
38 CFR 17.115 Prosthetic and similar appliances.
Artificial limbs, braces, orthopedic shoes, hearing aids,
wheelchairs, medical accessories, similar appliances including invalid
lifts and therapeutic and rehabilitative devices, and special clothing
made necessary by the wearing of such appliances, may be purchased, made
or repaired for any veteran upon a determination of feasibility and
medical need, provided:
(a) As part of outpatient care. The appliances or repairs are a
necessary part of outpatient care for which the veteran is eligible
under 17.60(a) through (d), and (k) through (m) (or a necessary part of
outpatient care authorized under 17.60a) or
(b) As part of hospital care. The appliances or repairs are a
necessary part of inpatient care for any service-connected disability or
any nonservice-connected disability, if:
(1) The nonservice-connected disability is associated with an
aggravating a service-connected disability, or
(2) The nonservice-connected disability is one for which hospital
admission was authorized, or
(3) The nonservice-connected disability is associated with and
aggravating a nonservice-connected disability for which hospital
admission was authorized, or
(4) The nonservice-connected disability is one for which treatment
may be authorized under the provisions of 17.48(f), or
(c) As part of domiciliary care. The appliances or repairs are
necessary for continued domiciliary care, or are necessary to treat a
member's service-connected disability, or nonservice-connected
disability associated with and aggravating a service-connected
disability, or
(d) As part of nursing home care. The appliances or repairs are a
necessary part of nursing home care furnished in facilities under the
direct and exclusive jurisdiction of the Department of Veterans Affairs.
(32 FR 13816, Oct. 4, 1967, as amended at 33 FR 12315, Aug. 31, 1968;
34 FR 9341, June 13, 1969; 35 FR 17948, Nov. 21, 1970; 54 FR 34983,
Aug. 23, 1989)
38 CFR 17.115a Repairs or replacements necessitated by accidents caused
by service-connected disability.
Any artificial limb, truss, brace, hearing aid, spectacles, or
similar appliance (not including dental appliances) reasonably necessary
to a veteran and belonging to him or her which was damaged or destroyed
by a fall or other accident caused by a service-connected disability for
which the veteran is in receipt of, or but for the receipt of retirement
pay would be entitled to, disability compensation, may be repaired or
replaced.
(32 FR 13816, Oct. 4, 1967)
38 CFR 17.115b Invalid lifts for recipients of aid and attendance
allowance or special monthly compensation.
An invalid lift may be furnished if:
(a) The applicant is a veteran who is receiving (1) special monthly
compensation (including special monthly compensation based on the need
for aid and attendance) under the provisions of 38 U.S.C. 1114(r), or
(2) comparable compensation benefits at the rates prescribed under 38
U.S.C. 1134, or (3) increased pension based on the need for aid and
attendance or a greater compensation benefit rather than aid and
attendance pension to which he or she has been adjudicated to be
presently eligible; and
(b) The veteran has loss, or loss of use, of both lower extremities
and at least one upper extremity (loss of use may result from paralysis
or other impairment to muscle power and includes all cases in which the
veteran cannot use his or her extremities or is medically prohibited
from doing so because of a serious disease or disability); and
(c) The veteran has been medically determined incapable of moving
himself or herself from his or her bed to a wheelchair, or from his or
her wheelchair to his or her bed, without the aid of an attendant,
because of the disability involving the use of his or her extremities;
and
(d) An invalid lift would be a feasible means by which the veteran
could accomplish the necessary maneuvers between bed and wheelchair, and
is medically determined necessary.
(33 FR 12315, Aug. 31, 1968, as amended at 36 FR 3117, Feb. 13, 1971;
54 FR 34983, Aug. 23, 1989)
38 CFR 17.115c Therapeutic and rehabilitative devices for recipients of
aid and attendance allowance or special monthly compensation.
Therapeutic and rehabilitative devices, including medical equipment
and supplies (excluding medicines) may be furnished, if:
(a)(1) The applicant is a veteran who is receiving special monthly
compensation (including special monthly compensation based on the need
for aid and attendance) under the provisions of 38 U.S.C. 1114(r), or
(2) comparable compensation benefits at the rates prescribed under 38
U.S.C. 1134, or (3) increased pension based on the need for aid and
attendance or a greater compensation benefit rather than aid and
attendance pension to which he or she has been adjudicated to be
presently eligible, and
(b) The device, equipment or item supplied is medically determined
necessary and is of a type or category of devices or supplies determined
to be available under this section.
(33 FR 12315, Aug. 31, 1968, as amended at 36 FR 3117, Feb. 18, 1971;
54 FR 34983, Aug. 23, 1989)
38 CFR 17.115d Devices to assist in overcoming the handicap of
deafness.
Devices for assisting in overcoming the handicap of deafness
(including telecaptioning television decoders) may be furnished to any
veteran who is profoundly deaf (rated 80% or more disabled for hearing
impairment by the Department of Veterans Affairs) and is entitled to
compensation on account of such hearing impairment.
(Authority: 38 U.S.C. 3902)
(53 FR 46607, Nov. 18, 1988)
38 CFR 17.116 Training in the use of appliances.
Beneficiaries supplied prosthetic and similar appliances will be
additionally entitled to fitting and training in the use of the
appliances. Such training will usually be given in Department of
Veterans Affairs facilities and by Department of Veterans Affairs
employees, but may be obtained under contract if determined necessary.
(26 FR 5871, June 30, 1961)
38 CFR 17.118 Dog-guides and equipment for blind.
(a) Blind ex-members of the Armed Forces entitled to disability
compensation for a service-connected disability may be furnished a
trained dog-guide. In addition, they may be furnished necessary travel
expense to and from their places of residence to the point where
adjustment to the dog-guide is available and meals and lodging during
the period of adjustment, provided they are required to be away from
their usual places of residence during the period of adjustment.
(b) Mechanical and/or electronic equipment considered necessary as
aids to overcoming the handicap of blindness may also be supplied to
beneficiaries defined in paragraph (a) of this section.
(26 FR 5872, June 30, 1961)
38 CFR 17.118 Automotive Equipment and Driver Training
38 CFR 17.119 Minimum standards of safety and quality for automotive
adaptive equipment.
(a) The Chief Medical Director or designee is authorized to develop
and establish minimum standards of safety and quality for adaptive
equipment provided under 38 U.S.C. chapter 39.
(b) In the performance of this function, the following considerations
will apply:
(1) Minimum standards of safety and quality will be developed and
promulgated for basic adaptive equipment specifically designed to
facilitate operation and use of standard passenger motor vehicles by
persons who have specified types of disablement and for the installation
of such equipment.
(2) In those instances where custombuilt adaptive equipment is
designed and installed to meet the peculiar needs of uniquely disabled
persons and where the incidence of probable usage is not such as to
justify development of formal standards, such equipment will be
inspected and, if in order, approved for use by a qualified designee of
the Chief Medical Director.
(3) Adaptive equipment, available to the general public, which is
manufactured under standards of safety imposed by a Federal agency
having authority to establish the same, shall be deemed to meet required
standards for use as adaptive equipment. These include such items as
automatic transmissions, power brakes, power steering and other
automotive options.
(c) For those items where specific Department of Veterans Affairs
standards of safety and quality have not as yet been developed, or where
such standards are otherwise provided as with custom-designed or factory
option items, authorization of suitable adaptive equipment will not be
delayed. Approval of such adaptive equipment, however, shall be subject
to the judgment of designated certifying officials that it meets
implicit standards of safety and quality adopted by the industry or as
later developed by the Department of Veterans Affairs.
(40 FR 8819, Mar. 3, 1975)
38 CFR 17.119a Eligibility for automobile adaptive equipment.
Automobile adaptive equipment may be authorized if the Chief Medical
Director or designee determines that such equipment is deemed necessary
to insure that the eligible person will be able to operate the
automobile or other conveyance in a manner consistent with such person's
safety and so as to satisfy the applicable standards of licensure
established by the State of such person's residency or other proper
licensing authority.
(a) Persons eligible for adaptive equipment are:
(1) Veterans who are entitled to receive compensation for the loss or
permanent loss of use of one or both feet; or the loss or permanent
loss of use of one or both hands; or ankylosis of one or both knees, or
one of both hips if the disability is the result of injury incurred or
disease contracted in or aggravated by active military, naval or air
service.
(2) Members of the Armed Forces serving on active duty who are
suffering from any disability described in paragraph (a)(1) of this
section incurred or contracted during or aggravated by active military
service are eligible to receive automobile adaptive equipment.
(b) Payment or reimbursement of reasonable costs for the repair,
replacement, or reinstallation of adaptive equipment deemed necessary
for the operation of the automobile may be authorized by the Chief
Medical Director or designee.
(Authority: 38 U.S.C. 3902)
(53 FR 46607, Nov. 18, 1988)
38 CFR 17.119b Definition-adaptive equipment.
The term, adaptive equipment, means equipment which must be part of
or added to a conveyance manufactured for sale to the general public to
make it safe for use by the claimant, and enable that person to meet the
applicable standards of licensure. Adaptive equipment includes any term
specified by the Chief Medical Director or designee as ordinarily
necessary for any of the classes of losses or combination of such losses
specified in 17.119a of this part, or as deemed necessary in an
individual case. Adaptive equipment includes, but is not limited to, a
basic automatic transmission, power steering, power brakes, power window
lifts, power seats, air-conditioning equipment when necessary for the
health and safety of the veteran, and special equipment necessary to
assist the eligible person into or out of the automobile or other
conveyance, regardless of whether the automobile or other conveyance is
to be operated by the eligible person or is to be operated for such
person by another person; and any modification of the interior space of
the automobile or other conveyance if needed because of the physical
condition of such person in order for such person to enter or operate
the vehicle.
(Authority: 38 U.S.C. 3901, 3902)
(53 FR 46608, Nov. 18, 1988)
38 CFR 17.119c Limitations on assistance.
(a) An eligible person shall not be entitled to adaptive equipment
for more than two automobiles or other conveyances at any one time or
during any four-year period except when due to circumstances beyond
control of such person, one of the automobiles or conveyances for which
adaptive equipment was provided during the applicable four-year period
is no longer available for the use of such person.
(1) Circumstances beyond the control of the eligible person are those
where the vehicle was lost due to fire, theft, accident, court action,
or when repairs are so costly as to be prohibitive or a different
vehicle is required due to a change in the eligible person's physical
condition.
(2) For purposes of paragraph (a)(1) of this section, an eligible
person shall be deemed to have access to and use of an automobile or
other conveyance for which the Department of Veterans Affairs has
provided adaptive equipment if that person has sold, given or
transferred the vehicle to a spouse, family member or other person
residing in the same household as the eligible person, or to a business
owned by such person.
(Authority: 38 U.S.C. 3903)
(b) Eligible persons may be reimbursed for the actual cost of
adaptive equipment subject to a dollar amount for specific items
established from time to time by the Chief Medical Director.
(Authority: 38 U.S.C. 3902)
(c) Reimbursement for a repair to an item of adaptive equipment is
limited to the current vehicles of record and only to the basic
components authorized as automobile adaptive equipment. Reimbursable
amounts for repairs are limited to the cost of parts and labor based on
the amounts published in generally acceptable commercial estimating
guides for domestic automobiles.
(Authority: 38 U.S.C. 3902)
(53 FR 46608, Nov. 18, 1988)
38 CFR 17.119d Obtaining vehicles for special driver training courses.
The Secretary may obtain by purchase, lease, gift or otherwise, any
automobile, motor vehicle, or other conveyance deemed necessary to
conduct special driver training courses at Department of Veterans
Affairs health care facilities. The Secretary may sell, assign,
transfer or convey any such automobile, vehicle or conveyance to which
the Department of Veterans Affairs holds title for such price or under
such terms deemed appropriate by the Secretary. Any proceeds received
from such disposition shall be credited to the applicable Department of
Veterans Affairs appropriation.
(Authority: 38 U.S.C. 3903(e)(3))
(45 FR 6939, Jan. 31, 1980. Redesignated at 54 FR 46607, Nov. 18,
1988)
38 CFR 17.119d Dental Services
38 CFR 17.120 Authorization of dental examinations.
When a detailed report of dental examination is essential for a
determination of eligibility for benefits, dental examinations may be
authorized for the following classes of claimants or beneficiaries:
(a) Those having a dental disability adjudicated as incurred or
aggravated in active military, naval, or air service or those requiring
examination to determine whether the dental disability is service
connected.
(b) Those having disability from disease or injury other than dental,
adjudicated as incurred or aggravated in active military, naval, or air
service but with an associated dental condition that is considered to be
aggravating the basic service-connected disorder.
(c) Those for whom a dental examination is ordered as a part of a
general physical examination.
(d) Those requiring dental examination during hospital, nursing home,
or domiciliary care.
(e) Those held to have suffered dental injury or aggravation of an
existing dental injury, as the result of examination, hospitalization,
or medical or surgical (including dental) treatment that had been
awarded.
(f) Veterans who are participating in a rehabilitation program under
38 U.S.C. chapter 31 are entitled to such dental services as are
professionally determined necessary for any of the reasons enumerated in
17.48(g).
(Authority: 38 U.S.C. 1712(b); ch. 31)
(g) Those for whom a special dental examination is authorized by the
Chief Medical Director or the Assistant Chief Medical Director for
Dentistry.
(h) Persons defined in 17.60(d).
(13 FR 7162, Nov. 27, 1948, as amended at 21 FR 10388, Dec. 28, 1956;
23 FR 6503, Aug. 22, 1958; 27 FR 11424, Nov. 20, 1962; 29 FR 1463,
Jan. 29, 1964; 30 FR 1789, Feb. 9, 1965; 32 FR 13817, Oct. 4, 1967;
33 FR 5300, Apr. 3, 1968; 35 FR 6586, Apr. 24, 1970; 49 FR 5617, Feb.
14, 1984)
38 CFR 17.123 Authorization of outpatient dental treatment.
Outpatient dental treatment may be authorized by the Chief, Dental
Service, for beneficiaries defined in 17.60(a) to (d) to the extent
prescribed and in accordance with the applicable classification and
provisions set forth in this section.
(a) Class I. Those having a service-connected compensable dental
disability or condition, may be authorized any dental treatment
indicated as reasonably necessary to maintain oral health and
masticatory function. There is no time limitation for making
application for treatment and no restriction as to the number of repeat
episodes of treatment.
(b) Class II. (1)(i) Those having a service-connected noncompensable
dental condition or disability shown to have been in existence at time
of discharge or release from active service, which took place after
September 30, 1981, may be authorized any treatment indicated as
reasonably necessary for the one-time correction of the
service-connected noncompensable condition, but only if:
(A) They served on active duty during the Persian Gulf War and were
discharged or released, under conditions other than dishonorable, from a
period of active military, naval, or air service of not less than 90
days, or they were discharged or released under conditions other than
dishonorable, from any other period of active military, naval, or air
service of not less than 180 days;
(B) Application for treatment is made within 90 days after such
discharge or release.
(C) The certificate of discharge or release does not bear a
certification that the veteran was provided, within the 90-day period
immediately before such discharge or release, a complete dental
examination (including dental X-rays) and all appropriate dental
treatment indicated by the examination to be needed, and
(D) Department of Veterans Affairs dental examination is completed
within six months after discharge or release, unless delayed through no
fault of the veteran.
(ii) Those veterans discharged from their final period of service
after August 12, 1981, who had reentered active military service within
90 days after the date of a discharge or release from a prior period of
active military service, may apply for treatment of service-connected
noncompensable dental conditions relating to any such periods of service
within 90 days from the date of their final discharge or release.
(iii) If a disqualifying discharge or release has been corrected by
competent authority, application may be made within 90 days after the
date of correction.
(2)(i) Those having a service-connected noncompensable dental
condition or disability shown to have been in existence at time of
discharge or release from active service, which took place before
October 1, 1981, may be authorized any treatment indicated as reasonably
necessary for the one-time correction of the service-connected
noncompensable condition, but only if:
(A) They were discharged or released, under conditions other than
dishonorable, from a period of active military, naval or air service of
not less than 180 days.
(B) Application for treatment is made within one year after such
discharge or release.
(C) Department of Veterans Affairs dental examination is completed
within 14 months after discharge or release, unless delayed through no
fault of the veteran.
(ii) Those veterans discharged from their final period of service
before August 13, 1981, who had reentered active military service within
one year from the date of a prior discharge or release, may apply for
treatment of service-connected noncompensable dental conditions relating
to any such prior periods of service within one year of their final
discharge or release.
(iii) If a disqualifying discharge or release has been corrected by
competent authority, application may be made within one year after the
date of correction.
(Authority: 38 U.S.C. 1712)
(c) Class II (a). Those having a service-connected noncompensable
dental condition or disability adjudicated as resulting from combat
wounds or service trauma may be authorized any treatment indicated as
reasonably necessary for the correction of such service-connected
noncompensable condition or disability.
(d) Class II(b). Those having a service-connected noncompensable
dental condition or disability and who had been detained or interned as
prisoners of war for a period of less than 90 days may be authorized any
treatment as reasonably necessary for the correction of such
service-connected dental condition or disability.
(Authority: Pub. L. 100-322; 38 U.S.C. 1712(b)(l)(F))
(e) Class II(c). Those who were prisoners of war for 90 days or
more, as determined by the concerned military service department, may be
authorized any needed dental treatment.
(Authority: Pub. L. 100-322, 38 U.S.C. 1712(b)(1)(F))
(f) Class IIR (Retroactive). Any veteran who had made prior
application for and received dental treatment from the Department of
Veterans Affairs for noncompensable dental conditions, but was denied
replacement of missing teeth which were lost during any period of
service prior to his/her last period of service may be authorized such
previously denied benefits under the following conditions:
(1) Application for such retroactive benefits is made within one year
of April 5, 1983.
(2) Existing Department of Veterans Affairs records reflect the prior
denial of the claim.
All Class IIR (Retroactive) treatment authorized will be completed on
a fee basis status.
(Authority: 38 U.S.C. 1712)
(g) Class III. Those having a dental condition professionally
determined to be aggravating disability from an associated
service-connected condition or disability may be authorized dental
treatment for only those dental conditions which, in sound professional
judgment, are having a direct and material detrimental effect upon the
associated basic condition or disability.
(h) Class IV. Those whose service-connected disabilities are rated
at 100% by schedular evaluation or who are entitled to the 100% rate by
reason of individual unemployability may be authorized any needed dental
treatment.
(Authority: 38 U.S.C. 1712)
(i) Class V. A veteran who is participating in a rehabilitation
program under 38 U.S.C. chapter 31 may be authorized such dental
services as are professionally determined necessary for any of the
reasons enumerated in 17.48(g).
(Authority: 38 U.S.C. 1712(b); chapter 31)
(j)(1) Class VI. Those who served in the active military or naval
forces during the Spanish-American War, Indian Wars, Philippine
Insurrection, or Boxer Rebellion may be authorized any dental treatment
indicated as reasonably necessary to maintain oral health and
masticatory function. There is no time limit for making application for
treatment and no restriction as to the number of repeat episodes of
treatment.
(2) Any veteran scheduled for admission or otherwise receiving care
and services under chapter 17 of 38 U.S.C. may receive outpatient dental
care which is medically necessary, i.e., is for a dental condition
clinically determined to be complicating a medical condition currently
under treatment.
(Authority: 38 U.S.C. 1712)
(20 FR 9505, Dec. 20, 1955, as amended at 26 FR 11214, Nov. 28, 1961;
27 FR 11424, Nov. 20, 1962; 29 FR 18219, Dec. 23, 1964; 32 FR 13817,
Oct. 4, 1967; 33 FR 5300, Apr. 3, 1968; 45 FR 47680, July 16, 1980;
48 FR 16681, Apr. 19, 1983; 49 FR 5617, Feb. 14, 1984; 54 FR 25449,
June 15, 1989; 57 FR 4367, Feb. 5, 1992; 57 FR 41701, Sept. 11, 1992)
38 CFR 17.123a Eligibility for Class II dental treatment without rating
action.
When an application has been made for class II dental treatment under
17.123(b), the applicant may be deemed eligible and dental treatment
authorized on a one-time basis without rating action if:
(a) The examination to determine the need for dental care has been
accomplished within the specified time limit after date of discharge or
release unless delayed through no fault of the veteran, and sound dental
judgment warrants a conclusion the condition originated in or was
aggravated during service and the condition existed at the time of
discharge or release from active service, and
(Authority: 38 U.S.C. 1712)
(b) The treatment will not involve replacement of a missing tooth
noted at the time of Department of Veterans Affairs examination except:
(1) In conjunction with authorized extraction replacement, or
(2) When a determination can be made on the basis of sound
professional judgment that a tooth was extracted or lost on active duty.
(c) Individuals whose entire tour of duty consisted of active or
inactive duty for training shall not be eligible for treatment under
this section.
(37 FR 6847, Apr. 5, 1972, as amended at 48 FR 16682, Apr. 19, 1983)
38 CFR 17.123b Posthospital outpatient dental treatment.
The Chief, Dental Service may authorize outpatient dental care which
is reasonably necessary to complete treatment of a nonservice-connected
dental condition which was begun while the veteran was receiving
Department of Veterans Affairs authorized hospital care.
(Authority: 38 U.S.C. 1712(b)(5))
(45 FR 6939, Jan. 31, 1980)
38 CFR 17.123c Patient responsibility in making and keeping dental
appointments.
Any veteran eligible for dental treatment on a one-time completion
basis only and who has not received such treatment within 3 years after
filing the application shall be presumed to have abandoned the claim for
dental treatment.
(45 FR 6939, Jan. 31, 1980)
38 CFR 17.124 Emergency outpatient dental treatment.
When outpatient emergency dental care is provided, as a humanitarian
service, to individuals who have no established eligibility for
outpatient dental care, the treatment will be restricted to the
alleviation of pain or extreme discomfort, or the remediation of a
dental condition which is determined to be endangering life or health.
The provision of emergency treatment to persons found ineligible for
dental care will not entitle the applicant to further dental treatment.
Individuals provided emergency dental care who are found to be
ineligible for such care will be billed.
(Authority: 38 U.S.C. 501)
(50 FR 14704, Apr. 15, 1985; 50 FR 21604, May 28, 1985)
38 CFR 17.129 Dental services for hospital or nursing home patients and
domiciled members.
Persons receiving hospital, nursing home, or domiciliary care
pursuant to the provisions of 17.46 and 17.47, will be furnished such
dental services as are professionally determined necessary to the
patients' or members' overall hospital, nursing home, or domiciliary
care.
(30 FR 1790, Feb. 9, 1965)
38 CFR 17.129 Sickle Cell Anemia
38 CFR 17.135 Voluntary participation in sickle cell anemia program.
Patients who are otherwise eligible for medical care under existing
regulations in 38 CFR part 17, are potential candidates for
participation in a Department of Veterans Affairs system-wide program
for sickle cell disorders. Participation in this program shall be
wholly voluntary and shall not be a prerequisite to eligibility for or
receipt of any other service or assistance from, or to participation in,
any other program under title 38 U.S.C.
(39 FR 9542, Mar. 12, 1974)
38 CFR 17.135 Autopsies
38 CFR 17.155 Autopsies.
(a) Except as provided in this section, no autopsy will be performed
by the Department of Veterans Affairs unless there is no known surviving
spouse or known next of kin; or without the consent of the surviving
spouse or, in a proper case, the next of kin, unless the patient or
domiciled person was abandoned by the spouse, if any, or, if no spouse,
by the next of kin for a period of not less than 6 months next preceding
death. Where no inquiry has been made for or in regard to the decedent
for a period of 6 months next preceding his death, he or she shall be
deemed to have been abandoned.
(b) If there is no known surviving spouse or known next of kin, or if
the decedent shall have been abandoned or if the request is sent and the
spouse or, in proper cases, the next of kin fails to reply within the
reasonable time stated in such request of the Department of Veterans
Affairs for permission to perform the autopsy, the Director is hereby
authorized to cause an autopsy to be performed if in the Director's
discretion he or she concludes that such autopsy is reasonably required
for any necessary purpose of the Department of Veterans Affairs,
including the completion of official records and advancement of medical
knowledge.
(c) If it is suspected that death resulted from crime or the cause of
death is unknown and if the United States has jurisdiction over the area
where the body is found, the Director of the Department of Veterans
Affairs facility will inform the appropriate District Counsel of the
known facts concerning the death. Thereupon the District Counsel will
transmit all such information to the United States Attorney for such
action as may be deemed appropriate and will inquire whether the United
States Attorney objects to an autopsy if otherwise it be appropriate.
If the United States Attorney has no objection, the procedure as to
autopsy will be the same as if the death had not been reported to him or
her.
(d) If the United States does not have exclusive jurisdiction over
the area where the body is found the local coroner will be informed. If
the local coroner declines to assume jurisdiction the procedure will be
the same as is provided in paragraph (c) of this section. If a Federal
crime is indicated by the evidence, the procedure of paragraph (c) of
this section will also be followed.
(e) The laws of the decedent's domicile are determinative as to
whether the spouse or the next of kin is the proper person to grant
permission to perform an autopsy and of the question as to the order of
preference among such persons. Usually the spouse is first entitled,
except in some situations of separation; followed by children, parents,
brothers and sisters, etc. When the next of kin as defined by the laws
of decedent's domicile consists of a number of persons as children,
parents, brothers and sisters, etc., permission to perform an autopsy
may be accepted when granted by the person in the appropriate class who
assumes the right and duty of burial.
(f) The Director of a Department of Veterans Affairs facility is
authorized to cause an autopsy to be performed on a veteran who dies
outside of a Department of Veterans Affairs facility while undergoing
post-hospital care under the provisions of 17.60, if the Director
determines such autopsy is reasonably required for any necessary purpose
of the Department of Veterans Affairs, including the completion of
official records and advancement of medical knowledge. Such authority
also encompasses the furnishing of transportation of the body at
Department of Veterans Affairs expense to the Department of Veterans
Affairs facility and return of the body. Consent for the autopsy will
be obtained as provided for in paragraph (e) of this section.
(16 FR 5701, June 15, 1951, as amended at 18 FR 2414, Apr. 24, 1953;
24 FR 8330, Oct. 14, 1959; 35 FR 6586, Apr. 24, 1970; 36 FR 23386,
Dec. 9, 1971; 45 FR 6939, Jan. 31, 1980)
38 CFR 17.155 Veterans Canteen Service
38 CFR 17.160 Organization.
The Veterans Canteen Service (VCS), established by Pub. L. 636, 79th
Congress, as amended, will function as a unit within the Veterans Health
Administration and will have exclusive responsibility for all its
activities. To effectuate the purpose of the act, an organization has
been established consisting of a VCS central office located at
Washington, DC, and a canteen at each Department of Veterans Affairs
hospital, center, and domiciliary.
(54 FR 34983, Aug. 23, 1989)
38 CFR 17.161 Delegation of authority.
In connection with the Veterans Canteen Service, the Chief Medical
Director is hereby delegated authority as follows:
(a) To exercise the powers and functions of the Secretary with
respect to the maintenance and operation of the Veterans Canteen
Service.
(b) To designate the Assistant Chief Medical Director for
Administration to administer the overall operation of the Veterans
Canteen Service and to designate selected employees of the Veterans
Canteen Service to perform the functions described in the enabling
statute, 38 U.S.C. ch. 75, so as to effectively maintain and operate the
Veterans Canteen Service.
(20 FR 337, Jan. 14, 1955, as amended at 36 FR 23386, Dec. 9, 1971;
45 FR 6939, Jan 3l, 1980)
38 CFR 17.161 Aid to States for Care of Veterans in State Homes
38 CFR 17.165 Recognition of a State home.
A State-operated facility which provides hospital, domiciliary or
nursing home care to veterans must be formally recognized by the
Secretary as a State home before Federal aid payments can be made for
the care of such veterans. Any agency of a State (exclusive of a
territory or possession) responsible for the maintenance or
administration of a State home may apply for recognition by the
Department of Veterans Affairs for the purpose of receiving aid for the
care of veterans in such State home. A State home may be recognized if:
(Authority: 38 U.S.C. 501, 1741)
(a) The State home is a facility which exists primarily for the
accommodation of veterans incapable of earning a living and who are in
need of domiciliary or nursing home care, and
(b) The majority of such veterans who are nursing home care patients
or domiciliary members in the home are veterans who may be included in
the computation of the amount of aid payable from the Department of
Veterans Affairs, and
(c) The personnel, building and other facilities and improvements at
the home are devoted primarily to the care of veterans, and
(d) In the case of recognition of State homes having nursing home
care facilities the requirements of 17.166a(b) are met.
(35 FR 3166, Feb. 19, 1970, as amended at 45 FR 6939, Jan. 31, 1980)
38 CFR 17.165a Filing applications.
Applications for Department of Veterans Affairs recognition of a
State home may be filed with the Chief Medical Director, Department of
Veterans Affairs. After arranging for an inspection of the State home's
facilities for furnishing domiciliary, nursing home or hospital care,
the Chief Medical Director will make a recommendation to the Secretary
who will notify the State official in writing of a decision.
(35 FR 3166, Feb. 19, 1970, as amended at 45 FR 6939, Jan. 31, 1980)
38 CFR 17.165b Approval of annexes and new facilities.
Separate applications for recognition must be filed for any annex,
branch, enlargement, expansion, or relocation of a recognized home which
is not on the same or contiguous grounds on which the parent facility is
located. When a recognized State home establishes nursing home or
hospital care facilities which have not been inspected and approved by
the Department of Veterans Affairs, a request for separate approval of
such facilities must be made. The prohibitions in 17.165c are also
applicable to applications for aid on behalf of any veteran cared for in
a new annex, branch or enlarged, expanded or relocated facilities or in
new nursing home or hospital facilities during the period prior to
notice of recognition or notice of approval of such facilities.
(Authority: 38 U.S.C. 1741, 501)
(35 FR 3166, Feb. 19, 1970, as amended at 45 FR 6939, Jan. 31, 1980)
38 CFR 17.165c Aid for period prior to recognition prohibited.
Payment of Federal aid will not be made for domiciliary, nursing home
or hospital care for any period prior to the date of notification of
recognition of a State home, and aid for domiciliary, nursing home or
hospital care furnished any veteran in such home will not be paid for
any period prior to the receipt of application for such care on behalf
of such veteran except as provided for in 17.166d.
(Authority: 38 U.S.C. 1743)
(45 FR 6939, Jan. 31, 1980)
38 CFR 17.165d Prerequisites for payments to State homes.
No payment or grant may be made to any State home unless the State
home meets the standards prescribed by the Secretary. These standards,
with respect to nursing home care, shall be no less stringent than those
prescribed by the Secretary for community nursing homes.
(Authority: 38 U.S.C. 1742(a))
(45 FR 6939, Jan. 31, 1980)
38 CFR 17.166 Aid for domiciliary care.
Aid may be paid to the designated State official for domiciliary care
furnished in a recognized State home for any veteran if the veteran is
eligible for domiciliary care in a Department of Veterans Affairs
facility.
(Authority: 38 U.S.C. 1741)
(45 FR 6939, Jan. 31, 1980)
38 CFR 17.166a Aid for nursing home care.
Aid may be paid to the designated State official for nursing home
care furnished in a recognized State home for any veteran if:
(a) The veteran needs nursing home care and:
(1) Has a service-connected disability for which nursing home care is
being provided, or
(2) Has a nonservice-connected disability and is unable to defray the
expenses of nursing home care and so states under oath, or
(3) Was discharged or released from active military, naval or air
service for disability incurred or aggravated in line of duty, or
(4) Is in receipt of, or but for the receipt of retirement pay would
be entitled to receive, disability compensation, and
(b) The quarters in which the nursing home care is provided are in an
area clearly designated for such care and not intermingled with those of
either hospital patients or domiciliary members.
(Authority: 38 U.S.C. 1741, 1742(a))
(45 FR 6939, Jan. 31, 1980)
38 CFR 17.166b Aid for hospital care.
Aid may be paid to the designated State official for hospital care
furnished in a recognized State home for any veteran if:
(a) The veteran is eligible for hospital care in a Department of
Veterans Affairs facility, and
(b) The quarters in which the hospital care is carried out are in an
area clearly designated for such care, specifically established, staffed
and equipped to provide hospital type care, are not intermingled with
the quarters of nursing home care patients or domiciliary members, and
meet such other minimum standards as the Department of Veterans Affairs
may prescribe.
(45 FR 6940, Jan. 31, 1980)
38 CFR 17.166c Amount of aid payable.
The amount of aid payable to a recognized State home shall be at the
per diem rates established by title 38 U.S.C., section 1741(a)(1) for
domiciliary care; section 1741(a)(2) for nursing home care; and
section 1741(a)(3) for hospital care. In no case shall the payments
made with respect to any veteran exceed one-half of the cost of the
veteran's care in the State home. VA will publish the actual per diem
rates, whenever they change, in a Federal Register notice.
(Authority: 38 U.S.C. 1741)
(50 FR 32568, Aug. 13, 1985)
38 CFR 17.166d Department of Veterans Affairs approval of eligibility
required.
Federal aid will be paid only for the care of veterans whose separate
eligibility for hospital, domiciliary or nursing home care has been
approved by the Department of Veterans Affairs. To obtain such
approval, State homes will complete a Department of Veterans Affairs
application form for each veteran for the type of care to be provided
and submit it to the Department of Veterans Affairs office of
jurisdiction for determination of eligibility. Payments shall be made
only from the date the Department of Veterans Affairs office of
jurisdiction receives such application; however, if such request is
received by the Department of Veterans Affairs office of jurisdiction
within 10 days after the beginning of the care of such veteran for which
he or she is determined to be eligible, payment shall be made on account
of such veteran from the date care began.
(Authority: 38 U.S.C. 1743)
(35 FR 3167, Feb. 19, 1970, as amended at 45 FR 6940, Jan. 31, 1980)
38 CFR 17.167 Inspection of recognized State homes.
Representatives of the Department of Veterans Affairs may inspect any
State home at such times as are deemed necessary. Such inspections
shall be concerned with the physical plant; records relating to
admissions, discharges and occupancy; fiscal records; and all other
areas of interest necessary to a determination of compliance with
applicable laws and regulations relating to the payment of Federal aid.
The authority to inspect carries with it no authority over the
management or control of any State home.
(Authority: 38 U.S.C. 1742)
(30 FR 221, Jan. 8, 1965, as amended at 35 FR 3167, Feb. 19, 1970)
38 CFR 17.168 Audit of State homes.
The State must comply with the Single Audit Act of 1984 (part 41 of
this chapter).
(Authority: 31 U.S.C. 7501-7507)
(52 FR 23825, June 25, 1987)
38 CFR 17.168 Grants to States for Construction or Acquisition of State
Home Facilities
Note: The purpose of the regulations concerning grants to States for
construction or acquisition of State home facilities is to effectuate
the provisions of 38 U.S.C. 8131-8137 and to assist the several States
to construct or acquire State home facilities for furnishing domiciliary
or nursing home care to veterans, and to expand, remodel, or alter
existing buildings for furnishing domiciliary, nursing home or hospital
care to veterans in State homes.
38 CFR 17.170 Definitions.
For the purpose of the regulations concerning grants to States for
construction or acquisition of State home facilities:
(a) The veteran population of each State shall be determined on the
basis of the latest figures certified by the Department of Commerce.
(Authority: 38 U.S.C. 8131(a))
(b) The term State means each of the several States, the District of
Columbia, the Virgin Islands, and the Commonwealth of Puerto Rico.
(Authority: 38 U.S.C. 8131(b))
(c) The term construction means the construction of new domiciliary
or nursing home buildings, the expansion, remodeling, or alteration of
existing buildings for the provision of domiciliary, nursing home, or
hospital care in State homes and the provision of initial equipment for
any such buildings. The term includes necessary support systems and
work performed over and above that required for maintenance and repair.
Generally, facilities such as parking lots, landscaping, sidewalks,
streets, storm sewers, etc., are excluded except to the extent the work
is inextricably involved with new construction or the remodeling,
modification or alteration of existing facilities.
(Authority: 38 U.S.C. 8131(c))
(d) The term cost of construction means the amount which the
Secretary determines to be necessary for a State home construction
project, including architect fees, supervision and site inspection
services, printing and advertising costs, but excluding land acquisition
costs.
(Authority: 38 U.S.C. 8131(d))
(e) The term State agency means that State agency or instrumentality
of a State designated by a State as authorized to apply for assistance
to construct or acquire State home facilities for veterans and
thereafter administer those facilities.
(f) The term acquisition means the purchase of a facility for use as
a State veterans home for the provision of domiciliary and/or nursing
home care to veterans. An acquisition includes any remodeling or
alteration needed to meet existing standards.
(g) The term cost of acquisition means the amount which the Secretary
determines to be necessary to acquire and renovate a facility for the
provision of domiciliary or nursing home care as a State home.
(h) As used in connection with a request from a State for a grant to
assist in the construction or acquisition of a State veterans home:
(1) The term preapplication means the State's submission to the
Secretary of a preapplication for Federal Assistance on Standard Form
424 with an accompanying space program and schematics for the project;
and
(2) The term application means the submission to the Secretary of an
application for Federal Assistance for a project on Standard Form 424
after the Department of Veterans Affairs has reviewed the State's
preapplication for the project and informed the State that it is a
feasible project for Federal participation.
(i) The term life safety project means a State veterans nursing home
or domiciliary project which would remedy an existing condition which
has been cited by the Department of Veterans Affairs, a State or local
agency (including a Fire Marshal), or the Joint Commission on
Accreditation of Hospitals, as threatening to the lives or safety of
patients within the facility.
(j) The term renovation project means a project to expand, remodel or
alter a State veterans nursing home or domiciliary which is not a life
safety project and does not result in the addition of domiciliary or
nursing home beds.
(45 FR 38357, June 9, 1980, as amended at 52 FR 23825, June 25, 1987;
56 FR 20353, May 3, 1991)
38 CFR 17.171 Maximum number of nursing home beds for veterans by
State.
(a) For purposes of these regulations, appendix A prescribes the
maximum number of beds which may be necessary to provide adequate
nursing home care and domiciliary care to veterans residing in each
State. When the nursing home beds to be constructed or acquired in a
State will result in more than 2 1/2 beds per 1,000 veterans, the State
shall provide sufficient justification for the Secretary to determine
that the additional beds are required in that State. In making this
determination, the Secretary shall consider the following factors: (1)
Demographic characteristics of the State's veteran population, (2)
availability, suitability and cost of alternative nursing home beds to
meet the needs of veterans in the State, (3) waiting lists for existing
State nursing home facilities and (4) any other criteria which the
Secretary shall deem appropriate to provide adequate nursing home care.
(Authority: 38 U.S.C. 8134(1))
(b) At the time an application is filed by a State for a grant under
the regulations concerning grants to States for construction of State
home facilities, such State must submit a certified statement listing
the total number of State-operated nursing home care beds for veterans
together with all other State projects under construction for beds to
furnish nursing home care to veterans in such State.
(Authority: 38 U.S.C. 8135(a)(3))
The maximum number of beds to provide adequate nursing home care and
domiciliary care to veterans residing in each State not to exceed four
beds per 1,000 veteran population for nursing home care and two beds per
1,000 veteran population for domiciliary care is established as follows:
(45 FR 38357, June 9, 1980, as amended at 48 FR 1490, Jan. 13, 1983;
52 FR 23826, 23829, June 25, 1987; 56 FR 20353, May 3, 1991)
38 CFR 17.172 Scope of grants program.
(a) Subject to the availability of an appropriation, a grant may be
made to a State which has submitted an application for assistance to
construct (or to acquire) State home facilities (if the application has
been approved by the Secretary) as prescribed in 17.170 through
17.177.
(b) The Department of Veterans Affairs may offer a State a grant
which is less than the amount of the grant requested subject to the
State's provision of assurance that adequate financial support will be
available for the project and for its maintenance, repair, and operation
when complete. If VA offers a grant to a State for less than the amount
requested and the State refuses to accept it, these Federal funds will
be applied to other applications which have met all Federal requirements
in the order of their priority on the list which was established by the
Secretary under 17.173(d) of this part for that fiscal year.
(c) If a State accepts the grant for less than the amount requested,
the State may request that its application for additional funds be
ranked on the next priority list for additional Federal funds.
(Authority: 38 U.S.C. 8135(b)(2)(D))
(52 FR 23826, June 25, 1987, as amended at 56 FR 20354, May 3, 1991)
38 CFR 17.173 Applications with respect to projects.
(a) A State desiring to receive Federal assistance for construction
or acquisition of a State home facility shall submit to the Secretary a
preapplication (if the need for Federal funding exceeds $100,000) and an
application for such assistance in compliance with the uniform
requirements for grant-in-aid to State and local governments prescribed
in the Office of Management and Budget Circular No. A-102, Revised.
The applicant will submit as part of the application or as an attachment
thereto:
(1) The amount of the grant requested with respect to such project
which may not exceed 65 percent of the estimated cost of construction or
acquisition and construction of such project.
(2) A description of the site for such project.
(3) Plans and specifications as required by 17.170 through 17.177.
(4) Any comments or recommendations made by appropriate State (and
areawide) clearinghouses pursuant to policies outlined in Executive
Order 12372, Intergovernmental Review of Federal Programs (part 40 of
this chapter).
(5) The State application for Federal assistance shall include
environmental documentation for the project by submitting a Categorical
Exclusion (CE), Environmental Assessment (EA), or an Environmental
Impact Statement (EIS). The environmental documentation will require
approval by the Department of Veterans Affairs before final award of a
construction or acquisition grant for a State veterans home. (See 26.6
of this chapter for compliance requirements.) If the proposed actions
involving construction or acquisition do not individually or
cumulatively have a significant effect on the human environment, the
applicant shall submit a letter noting a Categorical Exclusion. If
construction outside the walls of an existing structure will involve
more than 75,000 gross square feet (GSF), the application shall include
an environmental assessment to determine if an Environmental Impact
Statement is necessary for compliance with section 102(2)(c) of the
National Environmental Policy Act of 1969. When the application
submission requires an environmental assessment, the State shall briefly
describe the possible beneficial and/or harmful effect which the project
may have on the following impact categories:
(i) Transportation;
(ii) Air quality;
(iii) Noise;
(iv) Solid waste;
(v) Utilities;
(vi) Geology (soils/hydrology/flood plains);
(vii) Water quality;
(viii) Land use;
(ix) Vegetation, wildlife, aquatic, and ecology/wetlands;
(x) Economic activities;
(xi) Cultural resources;
(xii) Aesthetics;
(xiii) Residential population;
(xiv) Community services and facilities;
(xv) Community plans and projects; and
(xvi) Other.
If an adverse environmental impact is anticipated, the action to be
taken to minimize the impact should be explained in the environmental
assessment.
(Authority: 38 U.S.C. 8135(a))
(b) The applicant must furnish reasonable assurance that:
(1) Upon completion of such project the facilities will be used
principally to furnish to veterans the level of care for which such
application is made, and that not more than 25 per centum of the bed
occupancy at any one time will consist of patients who are not receiving
such level of care as veterans, and that such level of care will meet
the standards prescribed by the Secretary.
(2) Title to such site is or will be vested solely in the applicant,
State home, or other agency or instrumentality of the State.
(3) Adequate financial support will be available for the construction
of the project, and for its maintenance, repair and operation when
complete.
(4) The State will make such reports in such form and containing such
information as the Secretary may from time to time reasonably require,
and give the Secretary, upon demand, access to the records upon which
such information is based.
(5) The rates of pay for laborers and mechanics engaged in
construction of the project will not be less than the prevailing local
wage rates for similar work as determined in accordance with the Act of
March 3, 1931 (40 U.S.C. 276a through 276a-5) known as the Davis-Bacon
Act.
(Authority: 38 U.S.C. 8135(a)(8))
(6) Contractors engaged in the construction of the project will be
required to comply with the provisions of Executive Order 11246 of
September 24, 1965 (30 FR 12319), as amended by Executive Order 11375 of
October 13, 1967 (32 FR 14303), and by Executive Order 12086 of October
5, 1978 (43 FR 46501), and rules, regulations, or orders as the
Secretary of Labor may issue or adopt.
(7) Grantees will comply with the Federal requirements contained in
title 38, Code of Federal Regulations, parts 43 and 44 and assurances
contained in SF-424D, Assurances-Construction Programs.
(Authority: 38 U.S.C. 8135(a))
(8) The structures constructed will be of fire, earthquake, and other
natural disaster resistant construction.
(Authority: 38 U.S.C. 8105)
(9) In the case of a project for acquisition of a facility, the State
agency must provide reasonable assurance that the total cost of
acquisition of the facility, including any expansion, remodeling and
alteration to meet all building requirements and codes, and for all
other purposes, shall not be greater than the estimated cost of
construction of an equivalent new State home facility.
(Authority: 38 U.S.C. 8135(a)(9))
(10) An audit will be performed in compliance with the Single Audit
Act of 1984 (See part 41 of this chapter).
(Authority: 31 U.S.C. 7501-7507)
(c) Upon receipt of an application for a grant for a project for
construction or acquisition of a State veterans home, the Secretary or
designee shall:
(1) Determine whether the application meets the requirements of 38
U.S.C. 8135 and 17.170 through 17.177 and appendix A to 17.171 of
this title and whether the application contains sufficient information
for the Secretary to establish its priority. The Secretary shall
consider the following factors when making a determination for purposes
of this section that a project is primarily a State veterans nursing
home, domiciliary or hospital project:
(i) The number of State veterans nursing home, domiciliary, and/or
hospital beds that would be constructed or acquired by the project;
(ii) The amount of nursing home, domiciliary, or hospital project
space that will result from the construction or acquisition project;
(iii) The estimated number of veteran patients who would benefit from
the construction or acquisition project.
(Authority: 38 U.S.C. 8135(b))
(2) Notify the State submitting the application whether the
application conforms with such requirements, and, if it does not, notify
the State
(i) Of the actions necessary to bring the application into
conformance with those requirements; and
(ii) If the application provides insufficient information for the
Secretary to establish its priority under subparagraph (1) of this
paragraph; and
(3)(i) If such application provides sufficient information for the
Secretary to establish its priority, determine the priority of the
project described in the application in relation to all other projects
in accordance with the criteria set forth in this paragraph. In
establishing a project's priority, the Secretary shall rank projects
from the highest to the lowest priority in the order of priority groups
set forth in this paragraph, giving the projects in Group 1 the highest
priority and the projects in Group 6 the lowest. Where more than one
project is ranked in a single priority group, the Secretary shall rank
those projects by applying the criteria applicable to the next lower
priority group. If a State's application for Federal assistance for a
project that exceeds 50 percent of the next fiscal year's estimated
appropriation for State home grants will be placed at the bottom of the
priority group in which it is ranked. Where such ranking results in
more than one project being given the same priority, the Secretary shall
rank those projects, except as otherwise provided, in accordance with
the criteria applicable to the next lowest priority group until all
projects are ranked with a different priority.
(ii)The priority groups are:
(A) Priority Group 1: A State veterans nursing home or domiciliary
project for which a State, in the judgment of the Secretary, has made
sufficient funds available for construction and/or acquisition so that
the project may proceed upon approval of the grant which the State has
requested without further action required by the State to make such
funds available for that purpose, shall be accorded first priority. For
the purpose of the priority list, the Secretary will accept the
following as demonstrating that a State has made sufficient funds
available:
(1) A copy of the Act, as approved by the Governor, making available
at least one-half of the State's matching funds for the project; and
(2) A letter from an authorized State budget official certifying that
at least one-half of the State funds are, or will be, available for the
project, so that if VA approves the grant during the next fiscal year,
the project may proceed without further State action to make such funds
available.
(B) Priority Group 2: A State veterans nursing home or domiciliary
project from a State which has not received a construction or
acquisition grant from the Secretary under 38 U.S.C. 15035 shall be
accorded second priority.
(C) Priority Group 3: A State veterans nursing home or domiciliary
bed producing or non-bed producing project from a State, which the
Secretary determines, pursuant to this paragraph, to have a greater need
for State veterans nursing home or domiciliary beds than other States
which have submitted applications, shall be accorded third priority.
The Secretary shall base such determinations on the Secretary's
calculation, pursuant to this paragraph, of the State's unmet need for
such beds. A State which has submitted an application for a project
which the Secretary determines to be primarily a nursing home project
will be deemed to have a greater need for State veterans nursing home
beds than other States if the Secretary determines that the State has an
unmet need for such beds of between 91 percent and 100 percent. The
Secretary shall determine a State's unmet need for State veterans
nursing home beds by dividing the number of that State's nursing home
beds authorized by the Department of Veterans Affairs in State veterans
Homes as of August 15 of the current year by the number of beds needed
to provide adequate nursing home care to veterans residing in that State
as prescribed by the Secretary in appendix A. The quotient, expressed
as a percentage will be subtracted from 100 percent. The difference
constitutes the State's unmet need for State veterans nursing home beds
for purposes of this section. The Secretary shall determine a State's
unmet need for domiciliary beds by dividing the number of that State's
domiciliary beds authorized by the Department of Veterans Affairs as of
August 15 of the current year by the number of beds needed to provide
adequate domiciliary care to veterans residing in that State prescribed
by the Secretary in appendix A. The quotient, expressed as a percentage
will be subtracted from 100 percent. The difference constitutes the
State's unmet need for State veterans domiciliary beds for purposes of
this section.
(D) Priority Group 4: A State veterans nursing home or domiciliary
project, which is not assigned a higher priority under this section,
shall be accorded fourth priority. If there is more than one project in
this priority group, the Secretary shall assign each project a value as
set forth in the following table in accordance with the Secretary's
determination of the type of project:
If the Secretary determines that a project could be included in two
or more of the above-listed types so that the project, in the judgment
of the Secretary, cannot be accurately characterized as to type by
reference to any single type listed above, the Secretary shall determine
the numerical value to be assigned a project by calculating the average
of all the numerical values associated with all types of projects in
which the project could be included. The Secretary shall rank projects
in accordance with the numerical values assigned, with the highest
priority being assigned to the project with the highest numerical
valuation. Where this results in two or more projects with the same
priority, these projects shall be ranked in the order in which the
Secretary received the State's preapplication for that project giving
highest priority to the project for which a preapplication was received
first. If a preapplication was not received by the Secretary for a
project, the project shall be ranked with other projects using the date
on which the Secretary received the application for the projects.
(E) Priority Group 5: A project which is primarily designed to
renovate a State veterans hospital facility but which would not expand a
State's capacity to furnish hospital care in a State veterans home shall
be accorded fifth priority. Where more than one project is ranked in
this priority group, the Secretary shall rank them in the order in which
the Secretary received the State's preapplication for the project and
shall give highest priority to the project for which a preapplication
was received first. If a preapplication was not received by the
Secretary for a project, the project shall be ranked with other projects
using the date on which the Secretary received the application for the
project.
(F) Priority Group 6: A hospital project which would expand a
State's capacity to furnish hospital care in a State veterans home shall
be accorded no priority. Where more than one such project has been
submitted, the Secretary shall rank them in the order in which the
Secretary received the State's preapplication for the projects and shall
assign the lowest ranking to the project for which a preapplication was
received last. If a preapplication was not received by the Secretary
for a project, the project shall be ranked with other projects using the
date on which the Secretary received the application for the project.
(Authority: 38 U.S.C. 8135(b))
(d) The Secretary shall establish after August 15 of each year a list
of projects, including projects that have been conditionally approved
under paragraph (e) of this section, in the order of their priority on
August 15 of that year as determined pursuant to paragraph (c) of this
section. To the extent that Federal funds are available, the Secretary
shall award grants in the order of their priority on this list during
the fiscal year beginning on October 1 of the calendar year in which the
list is made. Once the list is established for the purpose of awarding
grants, the Secretary shall not add projects or change the list in any
way except to delete a project at the request of the State which has
applied for grant assistance for that project or upon the award by the
Secretary of a grant for a project on the list.
(Authority: 38 U.S.C. 8135(b)(4))
(e) The Secretary may conditionally approve a project, conditionally
award a grant for the project, and obligate funds for the grant if:
(1) The grant application is sufficiently complete to warrant the
conditional award; and
(2) The State requests conditional approval for its application and
provides the Department of Veterans Affairs written assurance that it
will complete the application and meet all requirements not later than
90 days after the date of conditional approval by the Secretary of the
Department of Veterans Affairs.
The final grant award shall not exceed 10 percent of the amount
conditionally approved, and in no case shall the total amount of the
grant exceed 65 percent of the total estimated cost of the project. If
the State fails to complete the remaining requirements within the 90
days from the date of conditional approval, the Secretary shall rescind
the conditional approval and grant award, and deobligate the funds
previously obligated for the project.
(Authority: 38 U.S.C. 8135(b) (4), (6)(A)-(7)(B))
(f)(1) The Secretary shall defer approval of an application that
otherwise meets the requirements of 38 U.S.C. 8135, if the State which
submitted the application does not, by July 1 of the Federal fiscal year
in which the State is notified by the Assistant Chief Medical Director
for Geriatrics and Extended Care of the availability of Federal funding
for a grant for the project described in the application, demonstrate
that the State has provided adequate financial support (matching funds)
for such project. A State's enactment into law of a bill appropriating
the State's share of funding for the project is acceptable to
demonstrate that the State has provided adequate financial support
(matching funds) for the project. The Department of Veterans Affairs
will evaluate other types of assurances on a case by case basis.
(2) The Secretary will apply Federal funds, which had been intended
for an application which has been deferred pursuant to subparagraph (1)
of this paragraph to applications for State veterans nursing home or
domiciliary projects that:
(i) Would not have been funded during the fiscal year but for the
deferral,
(ii) Will meet the requirements of these regulations by the end of
the Federal fiscal year, and
(iii) The Secretary has accorded the highest priority under paragraph
(c) of this section.
(3) An application deferred in accordance with paragraph (e)(1) of
this section shall be accorded priority in any subsequent Federal fiscal
year ahead of applications that had not been approved before the first
day of the Federal fiscal year in which the deferred application was
first approved.
(Authority: 38 U.S.C. 8135(b)(5))
(g) The amount of a grant under these regulations shall be paid to
the applicant or, if designated by the applicant, the State home for
which such project is being developed or any other agency or
instrumentality of the applicant. Funds paid for an approved project
will be used solely for carrying out such project as so approved.
(Authority: 38 U.S.C. 8135(d)(1))
(h) Any amendment of any application whether or not approved under
paragraph (d) of this section will be subject to review and approval
pursuant to the regulations concerning grants to States for construction
of State home facilities in the same manner as an original application.
(Authority: 38 U.S.C. 8135(e))
(i) Any amendment of any application whether or not approved under
paragraph (c) of this section will be subject to review and approval
pursuant to the regulations concerning grants to States for construction
of State home facilities in the same manner as an original application.
(Authority: 38 U.S.C. 8135(e))
(Information collection requirements contained in 17.173 were
approved by the Office of Management and Budget under control number
2900-0502)
(45 FR 38357, June 9, 1980, as amended at 47 FR 27859, June 28, 1982;
48 FR 1490, Jan. 13, 1983; 52 FR 23826, June 25, 1987; 54 FR 34983,
Aug. 23, 1989; 56 FR 20354, May 3, 1991)
38 CFR 17.174 Disallowance of a grant application and notice of a right
to hearing.
(a) Before disapproving an application submitted under 17.173, the
Secretary shall notify the applicant of the opportunity for a hearing.
The notice shall state:
(1) That the application's disapproval has been proposed;
(2) The basis for the proposed disapproval;
(3) That a request for a hearing should be received in writing by the
Secretary within 40 days from the date of this notice;
(4) That failure of an applicant to request a hearing as provided for
by this section or to appear at a hearing for which a date has been set
shall be deemed a waiver of the opportunity for a hearing.
(b) If an applicant requests a hearing after the expiration of the
40-day period, the Secretary may accept the request.
(c) An applicant who requests a hearing under the procedures
specified by this section shall be notified of the time and place for
the hearing. If the time or place set is inconvenient for the
applicant, the Secretary may change the time or place for the hearing.
(d) The Secretary shall conduct the hearing. The hearing will be
informal. The rules of evidence will not be followed. Witnesses shall
testify under oath or affirmation. A record or transcript of the
hearing shall be made. The Secretary who conducts the hearing may
exclude from consideration irrelevant, immaterial, or unduly repetitious
evidence or testimony.
(Authority: 38 U.S.C. 8135(c))
(52 FR 23828, June 25, 1987)
38 CFR 17.175 Recapture provisions.
(a) Except as provided in paragraph (b) of this section, if within 20
years after completion of any project with respect to which a grant has
been made under the regulations concerning grants to States for
construction or acquisition of State home facilities, a facility
constructed or acquired as part of such project ceases to be operated by
a State, a State home, or an agency or instrumentality of a State
principally for furnishing domiciliary, nursing home or hospital care to
veterans, the United States shall be entitled to recover from the State
which was the recipient of the grant or from the then owner of such
construction 65 percent of the current value of such facility (but in no
event an amount greater than the amount of assistance provided for such
under these regulations), as determined by agreement of the parties or
by action brought in the district court of the United States for the
district in which the facility is situated.
(Authority: 38 U.S.C. 8136)
(b) In the case of a grant where the Department of Veterans Affairs
would provide between 50 and 65 percent of the estimated cost of
expansion, remodeling, or alteration of an existing State Home facility
recognized by the Department of Veterans Affairs in accordance with
17.165, the Secretary may at the time of the grant provide for the
following recovery periods associated with the following grant amounts.
(Authority: 38 U.S.C. 8136)
If the magnitude of the Department of Veterans Affairs contribution
is below 50 percent of the estimated cost of the expansion, remodeling,
or alteration of an existing State home facility recognized by the
Department of Veterans Affairs in accordance with 17.165, the Secretary
may authorize a recovery period between 7 and 20 years depending on the
grant amount involved and the magnitude of the project.
(52 FR 23828, June 25, 1987)
38 CFR 17.176 State to retain control of operations.
Neither the Secretary of Veterans Affairs nor any employee of the
Department of Veterans Affairs shall exercise any supervision or control
over the administration, personnel, maintenance, or operation of any
State home constructed or acquired with assistance received under the
regulations concerning grants to States for construction and acquisition
of State home facilities except as prescribed in these regulations and
17.167.
(Authority: 38 U.S.C. 8137)
(52 FR 23829, June 25, 1987)
38 CFR 17.177 General program requirements for construction and
acquisition of and equipment for State home facilities.
(a) Introduction. (1) The general program requirements set forth in
this section have been established to guide the State agencies and their
architects in preparing drawings, specifications, cost estimates, and
the equipment list for the grant application.
(2) States shall apply the Uniform Federal Accessibility Standards
(UFAS) (24 CFR part 40, appendix A), during the design and construction
of State home projects. UFAS standards establish requirements for
facility accessibility by physically handicapped persons for Federal and
Federally-funded facilities and were jointly developed by the General
Services Administration, the Department of Housing and Urban
Development, the Department of Defense, and the United States Postal
Service, under the authority of sections 2, 3, 4, and 4a of the
Architectural Barriers Act of 1968, as amended, Public Law 90-480, 42
U.S.C. 4151-4157.
(3) States must comply with these requirements where they exceed any
National, State, or local codes. If the State or local codes exceed
these general requirements, compliance with the more stringent standard
is required.
(4) The space allotted to the various services (i.e., medical,
nursing, dietary, and the like) will depend upon the requirements of the
facility. Some services that are required by these regulations to be in
separate spaces or rooms, may be combined if the result will not
compromise safety and medical and nursing practices. The Department of
Veterans Affairs shall accept a design and waive minimum requirements
where a service or services will have minimal renovations and remain in
their present locations.
(Authority: 38 U.S.C. 8134(2))
(b) General conditions of the contract for construction. The
applicant may use the general conditions of the contract for
construction of the American Institute of Architects (AIA) or other
general conditions as required by the State in awarding contracts for
State home grant projects. (See 37 CFR part 43 for contract
requirements.)
(c) Program criteria. The State will use the program criteria in
17.178 through 17.179, as required by the scope of the project, subject
to the approval of the Department of Veterans Affairs.
(Authority: 38 U.S.C. 8134(2))
(56 FR 20355, May 3, 1991)
38 CFR 17.178 Domiciliary and nursing home care program.
(a) Objective. Domiciliary and nursing home care facilities should
provide a therapeutic, rehabilitative, safe and home-like environment to
assist in maintaining or restoring veterans to the highest level of
functioning. Long-term care facilities shall be designed to encourage
and facilitate participation in therapeutic programs.
(Authority: 38 U.S.C. 8134(2))
(b) General. All newly constructed domiciliary beds shall meet
nursing home care construction standards and be suitable to provide for
future conversion to nursing home care if needed. The Department of
Veterans Affairs may waive this requirement if the State shows that it
will need domiciliary beds more than nursing home beds for eligible
veterans. See 17.183 of this part.
(Authority: 38 U.S.C. 8134(2))
(c) Nursing units. A nursing unit with related facilities will
normally be constructed so that nurses may supervise 30 to 60 patients.
If there are design limitations, fewer beds are permissible. A 30-bed
unit with a centrally located nursing station is preferred on skilled
care units to provide efficient use of staff. A design that minimizes
the distance between rooms and nursing stations is recommended. Patient
storage may be planned in each nursing unit for bulky clothing that will
not fit into patients' closets. A nurses' call system shall be required
for nursing units. Each patient shall be furnished with an audiovisual
or visual nurses' call system which will register a call from the
patient with the signal light above the corridor door and at the nursing
station in hospitals and nursing homes. An empty conduit system shall
be installed for domiciliaries for use in a potential future conversion
to a nursing home. A nursing call system shall also be provided in each
patient's toilet room and bathroom. Wiring for a nurses' call system
shall be installed in conduit.
(Authority: 38 U.S.C. 8134(2))
(d) Bed configurations. At least 80 percent of the total beds should
be in single and/or double bed rooms. Rooms shall have no more than
four beds. Two large two-bed rooms are allowed for a 50-60 bed unit.
Adequate space should be provided to allow access to three sides of each
bed for the staff to work and utilize medical and emergency equipment.
(Authority: 38 U.S.C. 8134(2))
(e) Patient bedrooms. Each bedroom shall have direct access to an
enclosed toilet and lavatory. The percentage of the patient bedrooms
that shall be accessible to the physically handicapped must comply with
UFAS requirements. These rooms must include UFAS clearances around beds
and 5-foot wheelchair turning radius. Individual privacy should be
provided by screens, privacy curtains, or similar approaches in bedrooms
for more than one patient. No patient room shall be located on a floor
which is more than 50 percent below grade level. It is desirable that
patient rooms include:
(1) Wardrobes with closets and drawers large enough to accommodate
the personal clothing of patients who require care for an extended
period of time.
(2) Room for a desk, lounge chair, television, and other personal
belongings.
(3) Total electric beds.
(4) A sink and mirror.
(5) Piped oxygen and vacuum suction for patients as required.
(6) Operable windows to allow access to air. The sill shall be low
enough to permit patients to view the ground while sitting.
(Authority: 38 U.S.C. 8134(2))
(f) Patient room toilets. Patient toilets must be designed for
maximum accessibility and safety for the patients and to facilitate
staff assistance. One toilet/bathroom for each bedroom is preferred
with a maximum of four beds for each bathroom. Shower/tub rooms should
provide an area for setting clean clothes and supplies. Adequate
ventilation should be provided to prevent condensation and mildew. The
percentage of the patient toilets/bathrooms that are accessible to the
physically handicapped must comply with UFAS requirements. These rooms
must include UFAS clearances, grab bar configurations, and mounting
heights. Alternative grab bar configurations may be used for the
remaining percentage of patient toilets/bathrooms as approved by the
Department of Veterans Affairs.
(Authority: 38 U.S.C. 8134(2))
(g) Reception and control. Information, telephone, switchboard,
mailboxes, and control center facilities should be located adjacent to
the main lobby entrance. The information desk serves as a first point
of contract, information, and control area for those entering for
admission, a visit, or business.
(Authority: 38 U.S.C. 8134(2))
(h) Administrator/Director's suite. The project may include an
administrator/director's suite to include all administrative activities
required by the Director, Assistant Director, and their immediate
staffs, including secretaries, analysts, administrative assistants,
and/or trainees.
(Authority: 38 U.S.C. 8134(2))
(i) Dietetic Service. Dietetic Service facilities such as an office
for the dietitian, a kitchen, a dishwashing room, adequate
refrigeration, dry storage, receiving area, and garbage facilities
should be provided as required. It is desirable to have eating areas on
each unit that have a sink, toilet facilities, and storage, that can
accommodate wheelchairs and gerichairs, while still being attractive and
appealing for dining. Tables should be able to accommodate three to
four wheelchairs. Buffet lines may be provided on the unit to allow
some choice for patients who cannot get to the main dining room.
(1) Dining room, food preparation, and dishwashing facilities may be
planned as separate facilities from Dietetic Service area, if
appropriate.
(2) Space for vending machines may be provided.
(Authority: 38 U.S.C. 8134(2))
(j) Therapy and treatment programs. Facilities for rehabilitation
medicine, physical, occupational, and recreational therapies and other
programs shall be planned by the State to meet program requirements and
standards of care prescribed by the Department of Veterans Affairs. In
addition to the patient therapy spaces, offices may be provided.
Medical support areas should be planned to meet program requirements and
standards and may include areas for rehabilitation, recreation, dental
care and other medical support services.
(Authority: 38 U.S.C. 8134(2))
(k) Janitors closet. One janitors closet should be planned for each
nursing unit, in the dietetic area, and in the general administrative
and clinical space with at least one on each floor. The kitchen and
other areas which generate waste or require special care should have
their own janitors closet. Convenient storage for floor cleaning
machines may also be provided.
(Authority: 38 U.S.C. 8134(2))
(l) Staff facilities. Staff toilets should be provided on each
floor. Each facility should have an employee locker and lounge.
(Authority: 38 U.S.C. 8134(2))
(m) Conference room/In-service training. A conference room which may
also be used for staff training and development may be provided. Family
and group counseling rooms may also be provided.
(Authority: 38 U.S.C. 8134(2))
(n) Lounges/recreation. Two patient lounges which will accommodate
large numbers of wheelchair/gerichairs should be considered. Lounges
may be separated, one for smokers and one for non-smokers. Lounges
should be directly visible from the nursing station or adjacent to the
nursing station. Atriums may be planned on the nursing unit, or
provisions may be made for access to an outdoor sundeck or patio. An
outdoor recreation/patio space should be developed adjacent to a common
use area. Every effort should be made to reduce the noise levels on the
nursing unit by using noise reducing materials in construction and
decorating.
(Authority: 38 U.S.C. 8134(2))
(o) Miscellaneous space. The State home may include space for a
library, barber and/or beauty shop, retail sales, canteen, mailroom,
chapel, and computer communications area. Space for a child day care
center may be planned if it will primarily serve the needs of persons
employed by the State home. Whirlpools and wheelchair scales may be
provided for each State home built to nursing home standards. Other
spaces in the State home must be fully justified by the applicant and
approved by the Department of Veterans Affairs before the Department of
Veterans Affairs can participate in funding the cost of the area.
(Authority: 38 U.S.C. 8134(a))
(56 FR 20355, May 3, 1991)
38 CFR 17.179 State home hospital program.
(a) General. The Department of Veterans Affairs cannot participate
in the construction of new State home hospitals. However, the
Department of Veterans Affairs may participate in the remodeling,
alteration, or expansion of existing State home hospitals.
(Authority: 38 U.S.C. 8134(2))
(b) Hospital's nursing units. Patient bedrooms may be grouped into
distinct nursing units for general medical and surgical patients, and
psychiatric patients. A 40-bed unit is most desirable; however, a
range of 30-50 beds may be considered.
(Authority: 38 U.S.C. 8134(2))
(c) Distribution of beds. Single-bed rooms should be provided for
patients who are infectious, terminal, or who for other reasons require
separation.
(Authority: 38 U.S.C. 8134(2))
(d) Construction requirements. A State may use its own construction
standards for a State hospital alteration or expansion if the plans are
approved by the State's Department of Health and the State agency
responsible for the State home hospital. The grantee should follow
applicable National, State, and/or local codes for hospital
construction, remodeling, and/or renovation.
(Authority: 38 U.S.C. 8134(2))
(Information collection requirements contained in 17.179 were
approved by the Office of Management and Budget under control number
2900-0520)
(56 FR 20356, May 3, 1991)
38 CFR 17.180 Preapplication phase.
A State shall submit to the Department of Veterans Affairs a
preapplication (SF-424, 424C, and 424D) for Federal assistance for each
State home project if Federal participation exceeds $100,000. An
original and two copies are required. Costs incurred for the project by
the State after the date the Department of Veterans Affairs notifies the
State that the project is feasible for Department of Veterans Affairs
participation are allowable costs if the application is approved and the
grant is awarded. These pre-award expenditures include architectural
and engineering fees.
(Authority: 38 U.S.C. 8134(2))
(a) Purpose. A preapplication is required to determine the
applicant's general eligibility, to establish communication between the
Federal agency and the applicant, and to identify those proposals which
are not feasible for Department of Veterans Affairs participation before
the applicant incurs significant expenditures in preparing a formal
application. Filing a preapplication by April 15 of each year will give
the Department sufficient time to accomplish these purposes. The State
shall submit to the Department of Veterans Affairs a letter designating
the State Official authorized to apply for a State home construction or
acquisition grant and a point of contact for all matters relating to a
State home grant. If the authorized State official is changed, notice
shall be provided in writing to the Department of Veterans Affairs.
(Authority: 38 U.S.C. 8134(2))
(b) Preapplication requirements. The preapplication shall include
schematic drawings, a space program, and a needs assessment. States
applying for Federal assistance for new State home beds shall provide
justification for the beds by addressing the following areas:
(1) Demographic characteristics of the veteran population of the
area;
(2) Availability and suitability of alternative health care providers
and facilities in the area;
(3) Waiting lists for existing State home beds;
(4) Documentation that existing State home facilities in the State
meet current codes and standards;
(5) Availability of acute medical care services and qualified medical
care personnel to staff the proposed facility;
(6) Other information that may be required by the Assistant Chief
Medical Director for Geriatrics and Extended Care in the Department of
Veterans Affairs.
(Authority: 38 U.S.C. 8134(2))
(c) Revisions to preapplications. Grantees shall request approval
from the Department of Veterans Affairs for significant revisions after
preapplications have been submitted to the Department of Veterans
Affairs. If the scope changes and/or cost estimates increase by more
than 10 percent, a new preapplication may be required which will be
subject to the same review and approval procedure as for the original
preapplication.
(Authority: 38 U.S.C. 8134(2))
(Information collection requirements contained in 17.180 were
approved by the Office of Management and Budget under control number
2900-0520)
(56 FR 20357, May 3, 1991)
38 CFR 17.181 Application phase.
(a) General. The applicant shall submit an original and two copies
of the formal application (SF 424, 424C, and 424D) after the
preapplication has been reviewed by the Department of Veterans Affairs
and determined feasible for Department of Veterans Affairs
participation. The application must meet the requirements of parts 43
and 44 of this chapter and include an updated space program, design
development plans (35 percent), and specifications as outlined in
paragraph (b) of this section.
(Authority: 38 U.S.C. 8134(2))
(b) VA review. (1) Program. The applicant shall provide a narrative
description of existing or planned program(s) at the facility and how
this project will affect the operation of the existing State home (if
applicable).
(2) Cultural resources. The applicant shall provide a letter and two
copies from the State Historic Preservation Officer (SHPO) stating
whether the project area includes any properties on, eligible for, or
likely to meet the criteria for the National Register of Historic
Places. If the property does, or may include, National Register quality
properties, the letter from the SHPO should discuss the determination of
effect of the proposed project on such property.
(3) Design development site plan. The applicant shall submit a site
survey which has been performed by a licensed land surveyor. A
description of the site shall be submitted noting the general
characteristics of the site. This should include soil reports and
specifications, easements, main roadway approaches, surrounding land
uses, availability of electricity, water and sewer lines, and
orientation. The description should also include a map locating the
existing and/or new buildings, major roads, and public services in the
geographic area. Additional site plans should show all site work
including property lines, existing and new topography, building
locations, utility data, and proposed grades, roads, parking areas,
walks, landscaping, and site amenities.
(4) Design development (35 percent) drawings. The applicant shall
provide to the Department of Veterans Affairs one set of sepias and
eight sets of prints, rolled individually per set, to expedite the
review process. The drawings shall indicate the designation of all
spaces, size of areas and rooms and indicate in outline the fixed and
movable equipment and furniture. The drawings shall be drawn at 1/8''
or 1/4'' scale. Bedroom and toilet layouts, showing clearances and UFAS
requirements, should be shown 1/4'' scale. The total floor and room
areas shall be shown in the drawings. The drawings shall include:
(i) Plan of any proposed demolition work;
(ii) A plan of each floor. For renovations, the existing conditions
and extent of new work should be clearly delineated;
(iii) Elevations;
(iv) Sections and typical details;
(v) Roof plan;
(vi) Fire protection plans; and
(vii) Technical engineering plans, including structural, mechanical,
plumbing, and electrical drawings.
If the project involves acquisition, remodeling, or renovation, the
applicant should include the current as-built site plan, floor plans and
building sections which show the present status of the building and a
description of the building's current use and type of construction.
(5) Space program. The State shall submit a space program which
includes a list of each room or area and the square feet proposed. The
plan should note special or unusual services or equipment. The format
should be similar to the Chart of Net Square Feet Allowed and room
titles contained in 17.183 (c)(5)(i) through (c)(5)(iii) of this part.
(6) Design development outline specifications. The applicant shall
provide eight copies of outline specifications which shall include a
general description of the project, site, architectural, structural,
electrical, and mechanical systems such as elevators, nurses' call
system, air conditioning, heating, plumbing, lighting, power, and
interior finishes (floor coverings, acoustical material, and wall and
ceiling finishes).
(7) Design development cost estimates. Three copies of cost
estimates shall be included in the application to the Department of
Veterans Affairs. Estimates shall show the estimated cost of the
buildings or structures to be acquired or constructed in the project.
Cost estimates should list the cost of construction, contract
contingency, fixed equipment not included in the contract, movable
equipment, architect's fees, and construction supervision and
inspection. Unless justified by the State, the Department of Veterans
Affairs allowance for equipment not included in the construction
contract shall not exceed 10 percent of the construction or acquisition
contract cost. The Department of Veterans Affairs allowance for
contingencies shall not exceed 5 percent of the total project cost for
new construction or 8 percent of the total project cost for remodeling
or renovation projects. If the project involves non-Federal
participating areas, such costs should be itemized separately.
(8) Design development conference. After Department of Veterans
Affairs review of the design development documents, a design development
conference is recommended for all major projects. This will provide an
opportunity for the applicants and their architects to learn Department
of Veterans Affairs procedures and requirements for the project and to
discuss Department of Veterans Affairs review comments. The material in
paragraphs (b)(1) through (b)(7) of this section should be submitted for
Department of Veterans Affairs review at least three weeks before the
design development conference in the Department of Veterans Affairs
Central Office in Washington, DC.
(Authority: 38 U.S.C. 8134(2))
(c) Final review and approval (100% construction documents, bid
tabulations and cost estimates). (1) The applicant shall submit to the
Department of Veterans Affairs for review and approval one labeled set
of microfiche aperture cards, microfilm, or Compact Disc/Read Only
Memory (CD ROM) compact laser disc with 100% construction documents
(plans and specifications). The applicant shall also submit three
copies of: itemized bid tabulations; assurances of compliance with
Federal requirements, and revised budget page (SF 424C) based on the
selected bids. This should include final cost estimates for all item in
the project. Three signed copies of the Memorandum of Agreement shall
be submitted which reflect the total estimated cost of the project and
the Department of Veterans Affairs participation in the total cost.
(2) Following approval of final construction documents, bid
tabulations, and costs estimates, the Secretary will sign the Memorandum
of Agreement awarding the grant and committing available Federal funds.
(Authority: 38 U.S.C. 8134(2))
(d) Construction or acquisition. The State shall enter into a
construction or acquisition contract and begin construction or
acquisition of the State home within 90 days after the final grant has
been awarded by the Secretary of Veterans Affairs. Any delays beyond 90
days must be fully justified by the State and approved by the Department
of Veterans Affairs or the grant may be rescinded.
(Authority: 38 U.S.C. 8134(2))
(e) Grant revisions. When significant deviations occur in the
approved program or budget, the procedures set forth in paragraphs (e)
(1) and (2) of this section shall apply.
(1) If a State has received the award of a construction or
acquisition grant, the State shall request prior approval from the
Department of Veterans Affairs for programmatic or budgetary revisions
when the scope or objective of the project changes in a significant
manner or when an approved line item budgeted amount increases or
decreases by more than 10 percent. All grant modifications of this type
shall be within the total contingency allowance of 5 percent for new
construction or 8 percent for remodeling or renovation.
(2) In unusual and unanticipated circumstances, the Department of
Veterans Affairs may participate in modifications to a grant that
exceeds the contingency allowance by awarding a grant increase for the
project. A grant increase will require an amended application from the
State and complete justification, subject to the approval of the
Department of Veterans Affairs. The amended application for a grant
increase will be treated as an original application for the purpose of
the priority list and the award of any additional Federal funds for the
project.
(Authority: 38 U.S.C. 8135(e))
(f) Final architectural and engineering inspection. The grantee
shall notify the Department of Veterans Affairs immediately upon
completion of the project and request a final architectural and
engineering inspection. This inspection is required prior to final
payment under the construction or acquisition grant.
(Authority: 38 U.S.C. 8134(2))
(Information collection requirements contained in 17.181 were
approved by the Office of Management and Budget under control number
2900-0520)
(56 FR 20357, May 3, 1991)
38 CFR 17.182 Equipment.
(a) General. Equipment necessary for the State home's planned
effective operation shall be included in the cost of the project.
(Authority: 38 U.S.C. 8134(2))
(b) Definition of equipment. The term equipment as used in this
section means all items necessary for the functioning of all services of
the State home, including equipment as needed to provide for accounting
and other records, and maintenance of buildings and grounds. The term
equipment does not include consumable supplies such as food, drugs,
dressings paper, printed forms, soap, and the like which are routinely
required to operate the State home.
(Authority: 38 U.S.C. 8134(2))
(c) Classification of equipment. All equipment shall be classified
in two groups as indicated in paragraphs (c) (1) and (2) of this
section:
(1) Fixed equipment (included in construction/acquisition contract).
Fixed equipment is permanently affixed to the building or is connected
to service distribution systems designed and installed during
construction (e.g., kitchen and intercommunication equipment, built-in
casework, and cubicle curtain rods). The Federal share in the cost of
such equipment, included in the construction contract, will be
determined by the Department of Veterans Affairs percentage of
participation in the aggregate cost of the project.
(2) Movable and fixed equipment (not included in project contact).
Movable and fixed equipment may be purchased separately from the
construction or acquisition contract and includes furniture,
furnishings, wheeled equipment, kitchen utensils linens, draperies,
venetian blinds, electric clocks, pictures and trash cans. The Federal
share in the cost of such equipment not included in the project contract
will be limited to 10 percent of the project contract cost unless
justified by the State and approved by the Department of Veterans
Affairs.
(Authority: 38 U.S.C. 8134(2))
(d) Purchase of equipment. (1) The State shall select and purchase
all equipment for the complete and effective functioning of services
needed to operate the State home. The State may postpone purchasing of
equipment until the facility is almost ready for occupancy to assure
that the most current models of equipment are purchased. The equipment
shall meet State standards. Title to all equipment purchased by the
State with grant monies shall be vested to the State.
(2) The quality and amount of equipment shall be properly apportioned
to the various services of the facility so that unduly expensive or
elaborate equipment is not provided for some services at the expense of
other services.
(Authority: 38 U.S.C. 8134(2))
(e) Equipment list. (1) Prior to the completion of the project, the
State shall submit to the Department of Veterans Affairs for approval a
separate, complete itemized list of fixed and movable equipment, not
included in the construction contract. Fixed equipment shall be
itemized by category of equipment with the estimated cost of each
category or item and the total cost. Movable equipment shall be
itemized according to the rooms or functional areas identified on the
final drawings. The list shall show the quantity and estimated cost of
each item. The quantity will be based on the actual number of units and
number of beds in each unit.
(2) The Department of Veterans Affairs will review the equipment list
to ascertain medical applicability, quantity, and cost of items. The
quantity will be determined by the number of nursing or domiciliary
units, the number of bed areas provided, and the items required to make
constructed or acquired areas functional. Medical applicability will be
determined by whether such items are normally found or used in the type
of medical activity/area planned. The Department of Veterans Affairs
may disapprove items on the equipment list, but the applicant will be
given the opportunity to justify such item(s).
(Authority: 38 U.S.C. 8134(2))
(Information collection requirements contained in 17.182 were
approved by the Office of Management and Budget under control number
2900-0520)
(56 FR 20358, May 3, 1991)
38 CFR 17.183 General design guidelines and standards.
(a) General. Nursing homes and domiciliaries should be planned to
approximate the home atmosphere as closely as possible. These
guidelines and standards include minimum requirements for site selection
and development; architectural design including handicapped
accessibility and allowable space criteria; structural, mechanical, and
electrical design; plumbing systems and elevator requirements; fire
safety criteria; and asbestos abatement rules. State homes to be
constructed or acquired with Federal financial assistance shall comply
with applicable National, State, and local codes. Such codes include
building codes, electrical codes, seismic codes, fire and life safety
codes, plumbing codes, and others. Both nursing homes and domiciliaries
are health care occupancies, and all space shall be protected with a
sprinkler system as well as quick response sprinklers for all smoke
compartments containing patient sleeping rooms.
(1) Except as provided in paragraphs (a)(1)(i) and (a)(1)(ii) of this
section, in no case shall the total cost of remodeling exceed the cost
of constructing a comparable new building or facility.
(i) If a building or facility is on or eligible for the National
Register of Historic Places, the total cost of remodeling, renovating,
or adapting it may exceed the cost of comparable new construction by
five percent.
(ii) If the demolition of a building on or eligible for the National
Register of Historic Places is necessary, the cost to professionally
record the building for the Historic American Buildings Survey (HABS)
plus the total cost for demolition and site restoration shall be
included by the State in calculating the total cost of new construction.
(2) The cost of routine maintenance and replacement of mechanical,
electrical, structural and architectural work, or maintenance and repair
of any building system or equipment will not be considered as a cost for
construction or acquisition for a State home grant application. The
Department of Veterans Affairs may waive this requirement if it is
determined that the work is necessary to comply with standards of life
safety or quality patient care or is involved inextricably with the
construction or acquisition project.
(b) Site selection and development. -- (1) Site accessibility. The
site should be located in a safe, secure, residential-type area which is
accessible to acute medical care facilities, community activities and
amenities, and transportation facilities typical of the area.
(2) Mineral rights. The State shall establish whether the site is
subject to mineral rights which have not been developed and include a
report on the mineral rights as part of the formal application.
(3) Limitations. The State should avoid sites that are near
insect-breeding areas, noise or other industrial developments:
airports, railways or highways producing noise or air pollution; or
potential flood hazards. In the event that these site related
disadvantages cannot be avoided, adequate provision will be made to
eliminate or minimize the condition.
(4) Alternatives. The State shall look at alternative sites for the
State home unit and submit a report on these sites to the Department of
Veterans Affairs for review early in the application phase.
(5) Demolition plan. The cost of demolition of a building cannot be
included in the cost of construction unless the proposed construction is
in the same location as the building to be demolished or unless the
demolition is inextricably linked to the design of the construction
project. If the State believes that this cost may be included in the
cost of the construction project, a demolition plan should be submitted
which includes the extent and cost of existing site features to be
removed, stored, or relocated.
(6) Asbestos abatement. For existing buildings, a certified
industrial hygienist shall be hired for assessment, design, cost
estimate, and construction monitoring for asbestos abatement. The
abatement process shall follow EPA, OSHA, State, and local regulations
and guidelines.
(c) Architectural requirements. (1) Finishes. Walls shall be
washable or easily cleaned and smooth. Walls in kitchens and related
spaces shall have glazed materials or similar finish and bases shall be
waterproof and free from voids. Walls subjected to wetting should also
be glazed to a point above the splash or spray line. Wainscots of
durable material should be used in patient corridors and other corridors
where there is considerable wheeled traffic. Emphasis should be placed
on the use of materials for walls and floors that are safe, sanitary,
and noise-reducing. The color scheme should provide an attractive and
therapeutic environment for elderly patients.
(2) Handicapped accessibility. All State home facilities shall
provide necessary ingress, egress, and movement throughout the facility
for the physically handicapped and elderly in compliance with the
Uniform Federal Accessibility Standards (UFAS). Disabled persons shall
be provided with access and use that is independent, convenient, and
substantially equivalent to that provided other persons.
(3) Doors. All doors should be easy to open and in accordance with
UFAS requirements.
(4) Fire Protection. Facilities shall meet the applicable provisions
of the 1988 edition of the National Fire Protection Association's Life
Safety Code, NFPA 101, dated February 2, 1988, including NFPA 101M,
Alternative Approaches to Life Safety, dated December 2, 1987, (which
are incorporated by reference). Incorporation by reference of the 1988
edition of the Life Safety Code including NFPA 101M was approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. The Code is available for inspection at the Office of
the Federal Register, room 8301, 800 North Capitol Street, NW., suite
700, Washington, DC. Copies may be obtained from the National Fire
Protection Association, Battery March Park, Quincy, MA 02269. If any
changes in this Code are also to be incorporated by reference, a
document to that effect will be published in the Federal Register.
(5) Space program criteria. (i) General. The chart at paragraph
(c)(5)(iii) of this section shows the net square footage allowed for
Department of Veterans Affairs participation in the cost of the State
nursing homes and domiciliaries.
(ii) Deviations. Any deviation from these space criteria of more or
less than 10 percent, except to meet a more stringent State or local
requirement, must be justified by the State and approved by the
Department of Veterans Affairs if the space is to be included in the
cost of construction. The Assistant Chief Medical Director for the
Office of Geriatrics and Extended Care may approve a deviation if it
will improve the safety, quality of care, or quality of life provided to
veterans in a State home. If a deviation is not approved by the
Department of Veterans Affairs, the cost of questionable space will not
be included and the percentage of Federal participation may be reduced.
(iii) Chart of net square feet (NSF) allowed.
(56 FR 20359, May 3, 1991)
38 CFR 17.183 Sharing of Medical Facilities, Equipment, and Information
38 CFR 17.190 Contingency backup to the Department of Defense.
(a) Priority care to active duty personnel. The Secretary, during
and/or immediately following a period of war or national emergency
declared by the Congress or the President that involves the use of
United States Armed Forces in armed conflict, is authorized to furnish
hospital care, nursing home care, and medical services to members of the
Armed Forces on active duty. The Secretary may give higher priority in
the furnishing of such care and services in VA facilities to members of
the Armed Forces on active duty than to any other group of persons
eligible for such care and services with the exception of veterans with
service-connected disabilities.
(Authority: 38 U.S.C. 8111A, Pub. L. 97-174)
(b) Contract authority. During a period in which the Secretary is
authorized to furnish care and services to members of the Armed Forces
under paragraph (a) of this section, the Secretary, to the extent
authorized by the President and subject to the availability of
appropriations or reimbursements, may authorize VA facilities to enter
into contracts with private facilities for the provision during such
period of hospital care and medical services for certain veterans.
These veterans include only those who are receiving hospital care under
38 U.S.C. 1710 or, in emergencies, for those who are eligible for
treatment under that section, or who are receiving care under 38 U.S.C.
1712 (f) and (g). This authorization pertains only to circumstances in
which VA facilities are not capable of furnishing or continuing to
furnish the care or services required because of the furnishing of care
and services to members of the Armed Forces.
(Authority: 38 U.S.C. 8111A)
(Authority: Sec. 501 and 1720(a) of Title 38, U.S.C.)
(49 FR 5617, Feb. 14, 1984)
38 CFR 17.210 Sharing specialized medical resources.
Subject to such terms and conditions as the Chief Medical Director
shall prescribe, agreements may be entered into for sharing medical
resources with other hospitals, including State or local, public or
private hospitals or other medical installations having hospital
facilities or organ banks, blood banks, or similar institutions, or
medical schools or clinics in a medical community with geographical
limitations determined by the Chief Medical Director, provided:
(a) The agreement will achieve one of the following purposes: (1) It
will secure the use of a specialized medical resource which otherwise
might not be feasibly available by providing for the mutual use or
exchange of use of specialized medical resources when such an agreement
will obviate the need for a similar resource to be installed or provided
at a facility operated by the Department of Veterans Affairs, or
(2) It will secure effective use of Department of Veterans Affairs
specialized medical resources by providing for the mutual use, or
exchange of use, of specialized medical resources in a facility operated
by the Department of Veterans Affairs, which have been justified on the
basis of veterans' care, but which are not utilized to their maximum
effective capacity; and
(b) The agreement is determined to be in the best interest of the
prevailing standards of the Department of Veterans Affairs Medical
Program; and
(c) The agreement provides for reciprocal reimbursement based on a
charge which covers the full cost of the use of specialized medical
resources, incidental hospital care or other needed services, supplies
used, and normal depreciation and amortization costs of equipment.
(d) Reimbursement for medical care rendered to an individual who is
entitled to hospital or medical services (Medicare) under subchapter
XVIII of chapter 7 of title 42 U.S.C., and who has no entitlement to
medical care from the Department of Veterans Affairs, will be made to
such facility, or if the contract or agreement so provides, to the
community health care facility which is party to the agreement, in
accordance with:
(1) Rates prescribed by the Secretary of Health and Human Services,
after consultation with the Secretary of Veterans Affairs, and
(2) Procedures jointly prescribed by the Secretary of Health and
Human Services and the Secretary of Veterans Affairs to assure
reasonable quality of care and service and efficient and economical
utilization of resources.
(Authority: 38 U.S.C. 8153)
(32 FR 6841, May 4, 1967, as amended at 35 FR 18198, Nov. 28, 1970;
39 FR 1846, Jan. 15, 1974; 45 FR 6940, Jan. 31, 1980; 47 FR 58250,
Dec. 30, 1982; 54 FR 34983, Aug. 23, 1989)
38 CFR 17.211 Sharing medical information services.
(a) Agreements for exchange of information. Subject to such terms
and conditions as the Chief Medical Director shall prescribe, Directors
of Department of Veterans Affairs medical centers, may enter into
agreements with medical schools, Federal, State or local, public or
private hospitals, research centers, and individual members of the
medical profession, under which medical information and techniques will
be freely exchanged and the medical information services of all parties
to the agreement will be available for use by any party to the agreement
under conditions specified in the agreement.
(b) Purpose of sharing agreements. Agreements for the exchange of
information shall be used to the maximum extent practicable to create at
each Department of Veterans Affairs medical center which has entered
into such an agreement, an environment of academic medicine which will
help the hospital attract and retain highly trained and qualified
members of the medical profession.
(c) Use of electronic equipment. Recent developments in electronic
equipment shall be utilized under information sharing programs to
provide a close educational, scientific, and professional link between
Department of Veterans Affairs medical centers and major medical
centers.
(d) Furnishing information services on a fee basis. The educational
facilities and programs established at Department of Veterans Affairs
Medical Centers and the electronic link to medical centers shall be made
available for use by medical entities in the surrounding medical
community which have not entered into sharing agreements with the
Department of Veterans Affairs, in order to bring about utilization of
all medical information in the surrounding medical community,
particularly in remote areas, and to foster and encourage the widest
possible cooperation and consultation among all members of the medical
profession in the surrounding medical community.
(e) Establishing fees for information services. Subject to such
terms and conditions as the Chief Medical Director shall prescribe,
Directors of Department of Veterans Affairs medical centers shall charge
for information and educational facilities and services made available
under paragraph (d) of this section. The fee may be on an annual or
other periodic basis, at rates determined, after appropriate study, to
be fair and equitable. The financial status of any user of such
services shall be taken into consideration in establishing the amount of
the fee to be paid.
(32 FR 6841, May 4, 1967, as amended at 47 FR 58250, Dec. 30, 1982)
38 CFR 17.212 Reports.
The Chief Medical Director or designee will prepare for the
Secretary, for submission to the Congress, not more than 60 days after
the end of each fiscal year, separate reports on the activities carried
out under 17.210 (Sharing Specialized Medical Resources) and 17.211
(Sharing Medical Information Services). Each report shall include (a)
an appraisal of the effectiveness of the programs authorized by such
regulations and the degree of cooperation from other sources, financial
and otherwise, and (b) recommendations for the improvement or more
effective administration of such programs.
(Authority: 38 U.S.C. 8157)
(32 FR 6842, May 4, 1967, as amended at 45 FR 6940, Jan. 31, 1980)
38 CFR 17.220 Coordination of programs with Department of Health and
Human Services.
Programs for sharing specialized medical resources or medical
information services shall be coordinated to a maximum extent
practicable, with programs carried out under part F, title XVI of the
Public Health Service Act under the jurisdiction of the Department of
Health and Human Services.
(32 FR 6842, May 4, 1967, as amended at 45 FR 6940, Jan. 31, 1980;
47 FR 58250, Dec. 30, 1982)
38 CFR 17.220 Grants for Exchange of Information
38 CFR 17.260 Scope of the grant program.
The provisions of 17.260 through 17.291 are applicable to grants
under 38 U.S.C. 8155 for programs for the exchange of medical
information. The purpose of these grants is to assist medical schools,
hospitals, and research centers in planning and carrying out agreements
for the exchange of medical information, techniques, and information
services. The grant funds may be used for the employment of personnel,
the construction of facilities, the purchasing of equipment, research,
training or demonstration activities when necessary to implement
exchange of information agreements.
(33 FR 6011, Apr. 19, 1968)
38 CFR 17.261 The Subcommittee on Academic Affairs.
There is established within the Special Medical Advisory Group
authorized under the provisions of 38 U.S.C. 7312 a Subcommittee on
Academic Affairs, and the Subcommittee shall advise the Secretary,
through the Chief Medical Director, in matters pertinent to achieving
the objectives of programs for exchange of medical information. The
Subcommittee shall review each application for a grant and prepare a
written report setting forth recommendations as to the final action to
be taken on the application.
(42 FR 54804, Oct. 11, 1977)
38 CFR 17.262 Ex officio member of subcommittee.
The Assistant Chief Medical Director for Academic Affairs shall be an
ex officio member of the Subcommittee on Academic Affairs.
(42 FR 54804, Oct. 11, 1977)
38 CFR 17.265 Applicants for grants.
Applicants for grants generally will be persons authorized to
represent a medical school, hospital, or research center which has in
effect or has tentatively approved an agreement with the Department of
Veterans Affairs to exchange medical information.
(33 FR 6011, Apr. 19, 1968)
38 CFR 17.266 Applications.
Each application for a grant shall be submitted to the Chief Medical
Director on such forms as shall be prescribed and shall include the
following evidence, assurances, and supporting documents:
(a) To specify amount. Each application shall show the amount of the
grant requested, and if the grant is to be for more than one objective,
the amounts allocated to each objective (e.g., to training,
demonstrations, or construction) shall be specified, and
(b) To include copy of agreement. Each application shall be
accompanied by a copy of the agreement for the exchange of information
or information services which the grant funds applied for will
implement, and
(c) To include descriptions and plans. Each application shall
include a description of the use to which the grant funds will be
applied in sufficient detail to show need, purpose, and justifications,
and shall be illustrated by financial and budgetary data, and
(d) To include cost participation information. Each application
shall show the amount of the grant requested to be used for direct
expenses by category of direct expenses, the amount requested for
indirect expenses related to the direct expenses, any additional amounts
which will be applied to the program or planning from other Federal
agencies, and from other sources, and amounts or expenses which will be
borne by the applicant, and
(e) To include assurance records will be kept. Each application
shall include sufficient assurances that the applicant shall keep
records which fully disclose the amount and disposition of the proceeds
of the grant, the total cost of the project or undertaking in connection
with which the grant is made or used, the portion of the costs supplied
by non-Federal sources, and such other records as will facilitate an
effective audit. All such records shall be retained by the applicant
(grantee) for a period of 3 years after the submission of the final
expenditure report, or if litigation, claim or audit is started before
the expiration of the 3-year period, the records shall be retained until
all litigation, claims or audit findings involving the records have been
resolved, and
(f) To include assurance records will be made available. Each
application shall include sufficient assurances the applicant will give
the Secretary and the Comptroller General of the United States, or any
of their authorized representatives, access to its books, documents,
papers, and records which are pertinent to the grant for the purposes of
audit and examination, and
(g) To include assurance progress reports will be made. Each
application shall include sufficient assurances the applicant will
furnish the Chief Medical Director periodic progress reports in
sufficient detail showing the status of the project, planning, program,
or system funded by the grant for which application is made, and the
extent to which the stated objectives will have been achieved, and
(h) To include civil rights assurances. Each application shall
include sufficient assurances that no part of the grant funds will be
used either by the grantee or by any contractor or subcontractor to be
paid from grant funds for any purpose which is inconsistent with
regulations promulgated by the Secretary (part 18 of this chapter)
implementing title VI of the Civil Rights Act of 1964, or inconsistent
with Executive Order 11246 (30 FR 12319) and any implementing
regulations the Secretary of Labor may promulgate.
(33 FR 6011, Apr. 19, 1968, as amended at 36 FR 320, Jan. 9, 1971;
42 FR 54804, Oct. 11, 1977)
38 CFR 17.267 Applications for grants for programs which include
construction projects.
In addition to the documents and evidence required by 17.266, any
application for a grant for the construction of any facility, structure
or system which is part of an exchange of information program shall
include the following:
(a) Each application shall include complete descriptions, maps, and
surveys of the construction site, and documentary evidence and
explanations showing ownership, and
(b) Each application shall include complete plans and specifications
for the construction project, and where applicable, sufficient
explanations of technical applications so that they may be understood by
the layman, and
(c) Each application shall contain assurance that the rates of pay
for laborers and mechanics engaged in construction activities will not
be less than the prevailing local wage rates for similar work as
determined in accordance with the provisions of 40 U.S.C. 276a -- 276a-5
(The Davis-Bacon Act).
(33 FR 6012, Apr. 19, 1968)
38 CFR 17.268 Amended or supplemental applications.
An amended application, or an application for a supplemental grant,
may be considered either before or after final action has been taken on
the original application. Amended applications and applications for
supplemental grants shall be subject to the same terms, conditions and
requirements necessary for original applications.
(33 FR 6012, Apr. 19, 1968)
38 CFR 17.270 Awards procedures.
Applications for grants for planning or implementing agreements for
the exchange of medical information or information facilities shall be
reviewed by the Chief Medical Director or designee. If it is determined
approval of the grant is warranted, recommendations to that effect shall
be made to the Secretary in writing and shall be accompanied by the
following:
(a) The recommendation for approval shall be accompanied by the
written recommendation of the Subcommittee on Academic Affairs, and
(b) The recommendation for approval shall be accompanied by the
written draft of the certificate of award stating all conditions which
the grantee is required to agree to under the provisions of 17.271 and
all other conditions to which it has been determined the grant will be
subject, and
(c) The recommendation shall include a certification that sufficient
appropriated funds are available, and that the application for the grant
is sufficient in all details as specified in 17.266 through 17.268.
(33 FR 6012, Apr. 19, 1968, as amended at 42 FR 54805, Oct. 11, 1977)
38 CFR 17.271 Terms and conditions to which awards are subject.
Each certificate of award of a grant for planning or implementing an
agreement for the exchange of information or information facilities
shall specify that the grant is subject to the following terms and
conditions:
(a) Grants subject to terms of agreement for exchange of information.
Each grant shall be subject to, and the certificate shall incorporate
by reference, all terms, conditions, and obligations specified in the
agreement or planning protocols which the grant will implement, and
(b) Grants subject to assurances in application. Each grant shall be
subject to all assurances made by the grantee in its application for the
grant as required by 17.266 through 17.267, and
(c) Grants subject to limitations on use of funds. Each grant shall
be subject to the limitations on the use of grant funds, either for
direct or indirect costs, as prescribed in 17.275 through 17.277, and
(d) Grants subject to special provisions. Each grant shall be
subject to any special terms or conditions which may be warranted by
circumstances applicable to individual applications, and specified in
the certificate of award.
(33 FR 6012, Apr. 19, 1968)
38 CFR 17.275 Direct costs.
Direct costs to which grant funds may be applied may include in
proportion to time and effort spent, but are not limited to, fees and
costs directly paid to personnel or for fringe benefits, rent,
publications, educational programs, training, research, demonstration
activities, or construction carried out in connection with pilot
programs for planning or exchange of information.
(33 FR 6012, Apr. 19, 1968)
38 CFR 17.276 Patient care costs to be excluded from direct costs.
Grant funds for planning or implementing agreements for the exchange
of medical information shall not be available for the payment of any
hospital, medical, or other costs involving the care of patients except
to the extent that such costs are determined to be incident to research,
training, or demonstration activities carried out in connection with an
exchange of information program.
(33 FR 6012, Apr. 19, 1968)
38 CFR 17.277 Indirect costs.
The grantee shall allocate expenditures as between direct and
indirect costs according to generally accepted accounting procedures.
The amount allocated for indirect costs may be computed on a percentage
basis or on the basis of a negotiated lump-sum allowance. In the method
of computation used, only indirect costs shall be included which bear a
reasonable relationship to the planning or program funded by the grant
and shall not exceed a percentage greater than the percentage the total
institutional indirect cost is of the total direct salaries and wages
paid by the institution.
(33 FR 6012, Apr. 19, 1968)
38 CFR 17.281 Authority to approve applications discretionary.
Notwithstanding any recommendation by the Subcommittee on Academic
Affairs of the Special Medical Advisory Group, or any recommendation by
the Chief Medical Director or designee, the final determination on any
application for a grant rests solely with the Secretary.
(42 FR 54805, Oct. 11, 1977)
38 CFR 17.285 Suspension and termination procedures.
Termination of a grant means the cancellation of Department of
Veterans Affairs sponsorship, in whole or in part, under an agreement at
any time prior to the date of completion. Suspension of a grant is an
action by the Department of Veterans Affairs which temporarily suspends
Department of Veterans Affairs sponsorship under the grant pending
corrective action by the grantee or pending a decision to terminate the
grant by the Department of Veterans Affairs.
(a) Posttermination appeal. The following procedures are applicable
for reviewing postaward disputes which may arise in the administration
of or carrying out of the Exchange of Medical Information Grant Program.
(1) Reviewable decisions. The Department of Veterans Affairs
reserves the right to terminate any grant in whole or in part at any
time before the date of completion, whenever it determines that the
grantee has failed to comply with conditions of the agreement, or
otherwise failed to comply with any law, regulation, assurance, term, or
condition applicable to the grant.
(2) Notice. The Department of Veterans Affairs shall promptly notify
the grantee in writing of the determination. The notice shall set forth
the reason for the determination in sufficient detail to enable the
grantee to respond, and shall inform the grantee of his or her
opportunity for review by the Assistant Chief Medical Director as
provided in this section.
(3) Request for appeal. A grantee with respect to whom a
determination described in paragraph (a)(1) of this section has been
made, and who desires review, may file with the Assistant Chief Medical
Director for Academic Affairs an application for review of such
determination. The grantee's application for review must be post-marked
no later than 30 days after the postmarked date of notification provided
pursuant to paragraph (a)(2) of this section.
(4) Contents of request. The application for review must clearly
identify the question or questions in dispute, contain a full statement
of the grantee's position in respect to such question or questions, and
provide pertinent facts and reasons in support of his or her position.
The Assistant Chief Medical Director for Academic Affairs will promptly
send a copy of the grantee's application to the Department of Veterans
Affairs official responsible for the determination which is to be
reviewed.
(5) Effect of submission. When an application for review has been
filed no action may be taken by the Department of Veterans Affairs
pursuant to such determination until such application has been disposed
of, except that the filing of the application shall not affect the
authority which the constituent agency may have to suspend the system
under a grant during proceedings under this section or otherwise to
withhold or defer payments under the grant.
(6) Consideration of request. When an application for review has
been filed with the Assistant Chief Medical Director for Academic
Affairs, and it has been determined that the application meets the
requirements stated in this paragraph, all background material of the
issues shall be reviewed. If the application does not meet the
requirements, the grantee shall be notified of the deficiencies.
(7) Presentation of case. If the Assistant Chief Medical Director
for Academic Affairs believes there is no dispute as to material fact,
the resolution of which would be materially assisted by oral testimony,
both parties shall be notified of the issues to be considered, and take
steps to afford both parties the opportunity for presenting their cases,
at the option of the Assistant Chief Medical Director for Academic
Affairs, in whole or in part in writing, or in an informal conference.
Where it is concluded that oral testimony is required to resolve a
dispute over a material fact, both parties shall be afforded an
opportunity to present and cross-examine witnesses at a hearing.
(8) Decision. After both parties have presented their cases, the
Assistant Chief Medical Director for Academic Affairs shall prepare an
initial written decision which shall include findings of fact and
conclusions based thereon. Copies of the decision shall be mailed
promptly to each of the parties together with a notice informing them of
their right to appeal the decision of the Secretary, or to the officer
or employee to whom the Secretary has delegated such authority, by
submitting written comments thereon within a specified reasonable time.
(9) Final decision. Upon filing comments with the Secretary, or
designated officer or employee, the review of the initial decision shall
be conducted on the basis of the decision, the hearing record, if any,
and written comments submitted by both parties. The decision shall be
final.
(10) Participation by a party. Either party may participate in
person, or by counsel pursuant to the procedure set forth in this
section.
(b) Termination for convenience. The Department of Veterans Affairs
or the grantee may terminate a grant in whole or in part when both
parties agree that the continuation of the project would not produce
beneficial results commensurate with the further expenditure of funds.
The two parties shall agree upon the termination conditions, including
the effective date and, in the case of partial terminations, the portion
to be terminated. The grantee shall not incur new obligations for the
terminated portion after the effective date, and shall cancel as many
outstanding obligations as possible. The Department of Veterans Affairs
shall allow full credit to the grantee for the Department of Veterans
Affairs share of the noncancellable obligations, properly incurred by
the grantee prior to termination.
(c) Suspension procedures. When a grantee has failed to comply with
the terms of the grant agreement and conditions or standards, the
Department of Veterans Affairs may, on reasonable notice to the grantee,
suspend the grant and withhold further payments, prohibit the grantee
from incurring additional obligations of funds, pending corrective
action by the grantee, or make a decision to terminate as described in
paragraph (a) of this section. The Department of Veterans Affairs shall
allow all necessary and proper costs that the grantee could not
reasonably avoid during the period of suspension provided that they meet
the provisions of the applicable Federal cost principles.
(42 FR 54805, Oct. 11, 1977)
38 CFR 17.287 Recoupments and releases.
In any case where the Department of Veterans Affairs or a grantee's
obligations under an exchange of information agreement implemented by
grant funds are terminated, or where grant-financed equipment or
facilities cease to be used for the purposes for which grant support was
given, or when grant-financed property is transferred, the grantee shall
return the proportionate value of such equipment or facility as was
financed by the grant. When it is determined the Department of Veterans
Affairs equitable interest is greater that proportionate value, then a
claim in such greater amount shall be asserted. If it is determined an
amount less than proportionate value or less than the Department of
Veterans Affairs equitable interest should be recouped, or that the
Department of Veterans Affairs should execute any releases, then a
proposal concerning such a settlement or releases complete with
explanations and justifications shall be submitted to the Assistant
Chief Medical Director for Academic Affairs for a final determination.
(42 FR 54805, Oct. 11, 1977)
38 CFR 17.290 Payments.
Payments of grant funds are made to grantees through a
letter-of-credit, an advance by Treasury check, or a reimbursement by
Treasury check, as appropriate. A letter-of-credit is an instrument
certified by an authorized official of the Department of Veterans
Affairs which authorizes the grantee to draw funds when needed from the
Treasury, through a Federal Reserve bank and the grantee's commercial
bank and shall be used by the Department of Veterans Affairs where all
the following conditions exist:
(a) When there is or will be a continuing relationship between the
grantee and the Department of Veterans Affairs for at least a 12-month
period and the total amount of advance payments expected to be received
within that period is $250,000, or more;
(b) When the grantee has established or demonstrated the willingness
and ability to maintain procedures that will minimize the time elapsing
between the transfer of funds and their disbursement by the grantee;
and
(c) When the grantee's financial management meets the standards for
fund control and accountability. An advance by Treasury check is a
payment made to a grantee upon its request before outlays are made by
the grantee, or through use of predetermined payment schedules and shall
be used by the Department of Veterans Affairs when the grantee meets all
of the above requirements of this section except that advances will be
less than $250,000, or for a period less than 12 months. Reimbursement
by Treasury check is a payment made to a grantee upon request for
reimbursement from the grantee and shall be the preferred method when
the grantee does not meet the requirements of paragraphs (b) and (c) of
this section. This method may be used on any construction agreement, or
if the major portion of the program is accomplished through private
market financing or Federal loans, and the Federal assistance
constitutes a minor portion of the program. When the reimbursement
method is used, the Department of Veterans Affairs shall make payment
within 30 days after receipt of the billing, unless billing is improper.
Unless otherwise required by law, payments shall not be withheld for
proper charges at any time during the grant period unless a grantee has
failed to comply with the program objectives, award conditions, or
Federal reporting requirements; or the grantee is indebted.
(42 FR 54806, Oct. 11, 1977)
38 CFR 17.291 Copyrights and patents.
If a grant-supported program results in copyrightable material or
patentable inventions or discoveries, the United States Government shall
have the right to use such publications or inventions on a royalty-free
basis.
(33 FR 6013, Apr. 19, 1968)
38 CFR 17.291 Grants to the Republic of the Philippines
38 CFR 17.350 The program of assistance to the Philippines.
The provisions of this section through 17.370 are applicable to
grants to the Republic of the Philippines and to furnishing medical
services under 17.37 through 17.42, and implement the ''Agreement
between the Government of the United States of America and the
Government of the Republic of the Philippines on the Use of the Veterans
Memorial Medical Center and the Provision of Inpatient and Outpatient
Medical Care and Treatment of Veterans by the Government of the
Philippines and Furnishing of Grants-in-Aid Thereof by the Government of
the United States of America,'' dated April 25, 1967 (Treaties and Other
International Acts Series 6248), and a subsidiary agreement of the same
date, both of which were entered into pursuant to the provisions of 38
U.S.C. 1731-1734. All such implementing regulations have been approved
by the Director of the Office of Management and Budget.
(33 FR 5300, Apr. 3, 1968, as amended at 45 FR 47680, July 16, 1980;
47 FR 58250, Dec. 30, 1982)
38 CFR 17.351 Grants for the replacement and upgrading of equipment at
Veterans Memorial Medical Center.
Grants to assist the Republic of the Philippines in the replacement
and upgrading of equipment and in rehabilitating the physical plant and
facilities of the Veterans Memorial Medical Center, which the Secretary
may make under the authority cited in 17.350, shall be subject to such
terms and conditions as the Secretary may prescribe. Among such terms
and conditions to which the grants will be subject, will be advance
approval by the U.S. Department of Veterans Affairs of equipment
purchases, maintenance or repair projects. The awarding of such grants
is further subject to the limitations on available funds in 17.352.
(Authority: 38 U.S.C. 1732, as amended by Pub. L. 97-72, sec.
107(c)(1))
(33 FR 5300, Apr. 3, 1968, as amended at 45 FR 47680, July 16, 1980;
47 FR 58250, Dec. 30, 1982)
38 CFR 17.352 Amounts and use of grant funds for the replacement and
upgrading of equipment.
Grants awarded under 17.351 shall not exceed the amounts provided by
the appropriation acts of the Congress of the United States for the
purpose. Funds appropriated for the upgrading and replacement of
equipment at the Veterans Memorial Medical Center, or for rehabilitating
its equipment, shall remain available in consecutive fiscal years until
expanded, but in no event shall exceed the amount of $500,000 per year.
It is not intended that such funds will be utilized to expand the
medical center facilities. Upgrading of equipment, however, would
permit purchase of new and additional equipment not now possessed by the
medical center.
(Authority: 38 U.S.C. 1732)
(47 FR 58250, Dec. 30, 1982)
38 CFR 17.355 Awards procedures.
All applications for grants to the Republic of the Philippines under
the provisions of 17.351 shall be submitted to the Chief Medical
Director or a designee for consideration.
(Authority: 38 U.S.C. 1732)
(47 FR 58250, Dec. 30, 1982)
38 CFR 17.362 Acceptance of medical supplies as payment.
Upon request of the Government of the Republic of the Philippines,
payment for medical and nursing home services provided to eligible
United States veterans may consist in whole or in part, of available
medicines, medical supplies, or equipment furnished by the Department of
Veterans Affairs to the Veterans Memorial Medical Center at valuations
determined by the Secretary. Such valuations shall not be less than the
cost of the items and shall include the cost of transportation,
arrastre, brokerage, shipping and handling charges.
(Authority: 38 U.S.C. 1732(a)(2))
(47 FR 58250, Dec. 30, 1982)
38 CFR 17.363 Length of stay.
In computing the length of stay for which payment will be made, the
day of admission will be counted, but not the day of discharge, death,
or transfer. Where a veteran for whom hospitalization has been
authorized in Veterans Memorial Medical Center or a contract facility,
is absent from the hospital for a period longer than 24 hours, no
payment will be made for hospital care during that absence.
(Authority: 38 U.S.C. 1732)
(47 FR 58250, Dec. 30, 1982)
38 CFR 17.364 Eligibility determinations.
Determinations of legal eligibility and medical need for
hospitalization of United States veterans for treatment rest exclusively
with the United States Department of Veterans Affairs. Determinations
as to various factors upon which eligibility may depend shall be made as
follows:
(a) Determinations of service connection. For the purpose of meeting
any requirement in 17.37 through 17.39 for service-connected
disability, the United States Department of Veterans Affairs shall
determine that under laws it administers the disability in question was
incurred in or aggravated by service, and
(b) Determinations of valid service. For the purpose of determining
the necessary prerequisite service, determinations by the Department of
Defense of the United States as to military service shall be accepted.
In those cases in which the United States Department of Veterans Affairs
shall have information which it deems reliable and in conflict with the
information upon which the Department of Defense determination was made,
the conflicting information shall be referred to the Department of
Defense for reconsideration and redetermination. Such determinations
and redeterminations as to military service shall be conclusive.
(Authority: 38 U.S.C. 1712)
(47 FR 58250, Dec. 30, 1982)
38 CFR 17.365 Admission priorities.
Appropriate provisions of 17.49 apply.
(Authority: 38 U.S.C. 1712)
(47 FR 58251, Dec. 30, 1982)
38 CFR 17.366 Authorization of emergency admissions.
The Secretary of National Defense of the Republic of the Philippines
shall make determinations as to whether any patient should be admitted
in emergency circumstances before the U.S. Department of Veterans
Affairs has made a legal determination of eligibility, except that
liability for payment will not accrue to the United States until such
eligibility determination has been made. Eligibility determinations
will be given effect retroactively to the date of admission when the
U.S. Department of Veterans Affairs has been notified by telephone,
telegram, letter, or other communication of the emergency admission
within 72 hours of the hour of admission. The Clinic Director of the VA
Regional Office, Manila, may make an exception to the 72-hour limitation
when it is determined that the delay in notification was fully
justified. When any authorization cannot be made effective
retroactively to the date of admission, it shall be effective from the
date of receipt of notification.
(33 FR 5301, Apr. 3, 1968, as amended at 47 FR 58251, Dec. 30, 1982)
38 CFR 17.367 Republic of the Philippines to print forms.
The Secretary of National Defense of the Republic of the Philippines
will, with the concurrence of the Secretary of Veterans Affairs, print
all forms for applications for hospitalization, forms for physical
examination reports, forms for billings for services rendered, and such
other forms as may be necessary and incident to the efficient execution
of the program governed by the provisions of 17.37 through 17.42 and
17.350 through 17.370. The forms will be used whenever applicable in the
general operation of the program.
(33 FR 5301, Apr. 3, 1968)
38 CFR 17.369 Inspections.
The U.S. Department of Veterans Affairs, through authorized
representatives, has the right under the agreements cited in 17.350, to
inspect the Veterans Memorial Medical Center, its premises and all
appurtenances and records to determine completeness and correctness of
such records, and to determine according to the provisions of the cited
agreements whether standards maintained conform to the necessary
requirements.
(33 FR 5301, Apr. 3, 1968, as amended at 47 FR 58251, Dec. 30, 1982)
38 CFR 17.370 Termination of payments.
Payments may be terminated if the U.S. Department of Veterans Affairs
determines the Veterans Memorial Medical Center has not replaced and
upgraded as needed equipment during the period in which the agreements
cited in 17.50 are in effect or has not rehabilitated the existing
physical plant and facilities to place the medical center on a sound and
effective operating basis, or has not maintained the medical center in a
well-equipped and effective operating condition. Payments, however,
will not be stopped unless the Veterans Memorial Medical Center has been
given at least 60 days advance written notice of intent to stop
payments.
(Authority: 38 U.S.C. 1732)
(33 FR 5301, Apr. 3, 1968, as amended at 47 FR 58251, Dec. 30, 1982)
38 CFR 17.370 Grants and Assistance for Development, Expansion and Improvement of Medical and Allied Health Education
38 CFR 17.400 Purpose and scope of the program.
The provisions of 17.400 through 17.416 are applicable to a program
of grants and other forms of assistance under the ''Department of
Veterans Affairs Medical School Assistance and Health Manpower Training
Act of 1972'' as amended by the Veterans Omnibus Health Care Act of 1976
(Pub. L. 94-581), the Department of Veterans Affairs Programs Extension
Act of 1978 (Pub. L. 95-520), the Veterans Health Programs Extension and
Improvement Act of 1979 (Pub. L. 96-151), and the Department of Veterans
Affairs Health Care Amendments of 1980 (Pub. L. 96-330) (38 U.S.C.
chapter 82). This Act authorizes the Secretary of Veterans Affairs to
provide certain assistance in the establishment of new State medical
schools and the improvement of existing medical schools affiliated with
the Department of Veterans Affairs; to develop cooperative arrangements
between institutions of higher education, hospitals, and other nonprofit
health service institutions affiliated with the Department of Veterans
Affairs to coordinate, improve, and expand the training of professional
and allied health and paramedical personnel; to develop and evaluate
new health careers, interdisciplinary approaches and career advancement
opportunities; to improve and expand allied and other health manpower
utilization; and for other purposes.
(46 FR 33522, June 30, 1981)
38 CFR 17.401 Administration.
Programs of grants and other forms of assistance which are
established under the provisions of 38 U.S.C. chapter 82 will be
administered in accordance with 17.400 through 17.416 and with program
guides which will be issued and updated periodically by the Secretary.
(38 FR 26190, Sept. 19, 1973)
38 CFR 17.402 Definitions.
For the purpose of 17.400 through 17.416 the term:
(a) The Secretary means the Secretary of Veterans Affairs.
(b) The Special Medical Advisory Group means the group of
representatives of medical, dental and allied professions, appointed and
functioning under 38 U.S.C. 7312.
(c) Program period means the time for which the grant assistance has
been approved as specified in the agreement or grant document.
(d) An award period means the interval of time into which an approved
activity is divided for budgetary purposes, as specified in the
agreement or grant document.
(e) Extension, expansion, alteration, remodeling, improvement, or
repair as used in 38 U.S.C. 8213 and 8241 relate to existing buildings
and structures. None of these is synonymous with construction as used
in 38 U.S.C. 8223(a) which relates to the construction of new
free-standing structures. Both provisions are limited to facilities and
property under the control and jurisdiction of the Secretary.
(f) For the purposes of 38 U.S.C. 8211-8214: (1) Colleges means
nonprofit institutions of higher learning, which are primarily supported
by the State, and are authorized to offer, and are offering a formal
program of college level studies leading to the baccalaureate degree and
are accredited or approved by an accrediting body or bodies recognized
for such purposes by the Secretary of the Department of Education.
(2) Universities means educational institutions, which are primarily
supported by the State; which are comprised of one or more
undergraduate colleges or professional schools, each appropriately
accredited or approved by an accrediting body or bodies recognized for
such purposes by the Secretary of the Department of Education; and
which are authorized to confer degrees.
(3) Medical school means a nonprofit school of medicine or osteopathy
which provides a complete course of study which culminates in a degree
of doctor of medicine or doctor or osteopathy; and with regard to which
there has been a finding made of reasonable assurance that such a school
can proceed to full accreditation as determined by the body or bodies
recognized for such purposes by the Secretary of the Department of
Education.
(4) Faculty means those individuals who have as their principal
duties the instruction of students in the new medical school or the
administration of the academic program of such a school.
(g) For the purposes of 38 U.S.C. 8221-8223: (1) Medical school
means a nonprofit school of medicine or osteopathy which provides a
course of study of not less than 2 years, which forms a part or whole of
the necessary requirements leading to a degree of doctor of medicine or
doctor of osteopathy, and which has been reviewed and accredited for its
stage of development by an appropriate accrediting agency recognized for
such purpose by the Secretary of the Department of Education.
(2) Full-time student means a student who is enrolled or is expected
to be enrolled in a medical school on a full-time basis as determined by
the medical school and is pursuing a course of study leading to the
degree of doctor of medicine or doctor of osteopathy.
(h) For the purposes of 38 U.S.C. 8221-8223, an eligible institution
means any nonprofit educational facility or other public or nonprofit
institution, including universities, colleges, junior colleges,
community colleges, schools of allied health professions, State and
local systems of education, hospitals, and other nonprofit health
manpower institutions for the training or education of allied health or
other health personnel affiliated with the Department of Veterans
Affairs for the conduct of or the providing of guidance for education
and training programs for health manpower.
(38 FR 26190, Sept. 19, 1973, as amended at 46 FR 33522, June 30,
1981; 54 FR 34984, Aug. 23, 1989)
38 CFR 17.403 Eligibility.
(a) To be eligible to receive assistance under 38 U.S.C. 8211-8214,
the applicant must:
(1) Be a college or university as defined in 17.402(f) (1) and (2);
(2) Be located within a reasonable distance of an existing Department
of Veterans Affairs medical facility; and
(3) Furnish the Secretary of Veterans Affairs with such evidence as
may be required that the college or university has prepared and
presented a plan for the proposed new school of medicine or osteopathy;
and that in a letter dated not earlier than October 24, 1972, has
received reasonable assurance of accreditation of the new school as
defined in 17.402(f)(3).
(b) To be eligible to receive assistance under 38 U.S.C. 8221-8223,
the applicant must:
(1) Be a medical school as defined in 17.402(g)(1); and
(2) Have been affiliated with the Department of Veterans Affairs
under an agreement entered into pursuant to 38 U.S.C. 8151 for at least
12 months prior to the date of the application for a grant under this
subchapter II.
(c) To be eligible to receive assistance under 38 U.S.C. 8221-8223,
the applicant must:
(1) Be an eligible institution as defined in 17.402(h); and
(2) Be affiliated with the Department of Veterans Affairs under an
agreement entered into pursuant to 38 U.S.C. 8151, at the time of the
award of a grant under this subchapter III.
(38 FR 26191, Sept. 19, 1973, as amended at 46 FR 33522, June 30,
1981)
38 CFR 17.404 Application.
(a) Each eligible applicant desiring assistance shall submit an
application in such form and at such time as the Secretary of Veterans
Affairs shall prescribe.
(b) Such application shall be executed by an individual authorized to
act for the applicant and to assume on behalf of the applicant the
obligations imposed by the terms and conditions of any agreement or
award of funds.
(c) Such application shall state the purpose for which the
application is made and shall contain a budget and a narrative plan by
means of which the applicant intends to conduct the project or program
and carry out the requirements of 17.400 through 17.416.
(d) Such application shall include a statement from the appropriate
State and areawide planning and development clearinghouse indicating the
compatibility and relationship of the proposed program or projects to
the overall health care and training plans of the State, region or
locality, as required in the Office of Management and Budget Circular
No. A-95.
(e) For purposes of 38 U.S.C. 8211-8214: (1) Such application shall
be executed by an individual authorized to act for the applicant and to
assume in behalf of the applicant, the obligations imposed by the terms
and conditions of any award of funds or of any formally executed
agreement, including 17.400 through 17.416. When the applicant is a
school or college which is not controlled by the State, the application
must be countersigned by an official similarly authorized by the State
agency responsible for administering the State's contribution to its
support.
(2) In addition to the information required in paragraph (c) of this
section, such application shall include any proposed agreement for lease
of land, buildings and structures under the control of the Secretary of
Veterans Affairs.
(3) Such application shall be accompanied by a statement assuring
that adequate financial support for the new medical school will be
provided by the State or by other sources. This statement must be
executed by an appropriate official of the State in which the new school
is to be located.
(38 FR 26191, Sept. 19, 1973, as amended at 39 FR 31901, Oct. 1,
1974)
38 CFR 17.405 Agreements and grant awards.
(a) For the purposes of 38 U.S.C. 8211-8214: (1) Within the limits
of funds available each year for such purposes, the Secretary of
Veterans Affairs, upon recommendation of the Chief Medical Director and
after consultation with the Special Medical Advisory Group, may enter
into, or continue with, agreements to provide assistance to a total of
not more than eight applicants whose proposals in the Secretary's
judgment best achieve the purposes of 38 U.S.C. 8211, taking into
consideration:
(i) The relative merit of the applicant's overall plan for the
establishment of the medical school:
(ii) The suitability of the Department of Veterans Affairs medical
facility for development as medical school facilities; and the terms of
any lease agreement;
(iii) The other facilities and resources available to the applicant
to assure the sound establishment and continuing maintenance of the
programs of the new medical school;
(iv) The arrangements to be maintained by the school with the
Department of Veterans Affairs medical facility with which it is to be
associated, and the extent to which they will be mutually beneficial to
the mission of both; and
(v) The extent of the commitment of the State in which the new school
is to be located to the provision of adequate financial support in the
establishment of the school and in its continuing operation beyond the
end of the program period.
(vi) The presence of existing or developing schools of medicine or
osteopathy in the region to be served by the applicant.
(2) The terms of any agreement and the amount of any funds to be
awarded shall be determined by the Secretary on the basis of:
(i) The considerations and understandings involved in the lease;
(ii) The Secretary's estimate of the sums necessary to accomplish the
adequate extension, alteration, remodeling, improvement, or repair of
the building or structures to be leased; and to adequately equip such
buildings or structures for the purposes proposed; and
(iii) The Secretary's estimate to the amounts necessary to assist in
the payment of the cost of the salaries of faculty, the proportion will
not exceed 90 percent of the salaries for the first year of operation,
and a like percentage for the second and third years; 80 percent for
the fourth year, 70 percent for the fifth year, 60 percent for the sixth
year; and 50 percent for the seventh year.
(3) No recipient should anticipate receiving assistance in any one
award year totaling more than one-eighth of the funds available for
awards pursuant to 38 U.S.C. 8212 for that year.
(4) Notwithstanding any other provision concerning this program set
forth in 17.400 through 17.416, the Secretary may not enter into any
agreement under subchapter I of chapter 82, title 38 U.S.C., after
September 30, 1979. This is not to be interpreted as interfering with
the continued administration of existing agreements under subchapter I.
(b) For the purposes of 38 U.S.C. 8221-8223: (1) Within the limits
of funds available for such purposes, the Secretary, upon recommendation
of the Chief Medical Director and after consultation with the Special
Medical Advisory Group, may award grants and other assistance to those
applicants whose projects or programs will in the Secretary's judgment
best promote the purposes of 38 U.S.C. 8221, taking into consideration:
(i) The relative merit of the project or program proposed by the
applicant;
(ii) The other resources available to the applicant to supplement and
complement the proposed program or project;
(iii) The capability of the applicant to carry out the proposed
program of project, without threat to its accreditation as required in
17.402(g)(1);
(iv) The extent to which the plan for program or project has been
coordinated with Department of Veterans Affairs facility(ies) with which
the applicant is affiliated for purposes of the program or project.
(2) The amount of any award shall be determined by the Secretary on
the basis of the Secretary's estimate of the sum necessary for the cost
of the applicant's approved program or project.
(c) For the purposes of 38 U.S.C. 8221-8223: (1) Within the limits
of funds available for such purpose, the Secretary, upon recommendation
of the Chief Medical Director and after consultation with the Special
Medical Advisory Group, may award grants to those applicants whose
projects or programs will in the Secretary's judgment best promote the
purposes of 38 U.S.C. 8231, taking into consideration:
(i) The relative merit of the program or project proposed by the
applicant;
(ii) The other resources available to the applicant to supplement and
complement the proposed program or project;
(iii) The capability of the applicant to carry out the proposed
program or project under circumstances which will not compromise the
quality of education at the institution nor jeopardize the accreditation
of the training program by the appropriate body or bodies recognized for
such purposes by the Secretary of the Department of Education.
(iv) The extent to which the plan for the program or project has been
coordinated with Department of Veterans Affairs facility(ies) with which
the applicant is or proposes to become affiliated for purposes of the
program or project.
(2) The amount of any award shall be determined by the Secretary on
the basis of the Secretary's estimate of the sum necessary for the cost
of the applicant's approved program or project.
(d) For the purposes of any grant program of 38 U.S.C. chapter 82:
(1) All grant awards shall be in writing, shall set forth the total
amount of assistance awarded and the total period for which it will be
available for obligation by the grantee.
(2) Neither the approval of any project nor the award of any grant
shall commit or obligate the United States in any way to make any
additional supplemental, continuation, or other award with respect to
the approved project or to a portion thereof. For continuation support,
grantees must make a separate application annually including an annual
budget and report of balances remaining from previous award periods and
at such time and in such form as the Secretary may require.
(3) The adequacy of a plan for assuring priority for admission of
qualified veterans in all of the health manpower education and training
programs, as provided in 38 U.S.C. 8201(e) shall be considered.
(38 FR 26191, Sept. 19, 1973, as amended at 39 FR 31901, Sept. 3,
1974; 46 FR 33522, June 30, 1981)
38 CFR 17.406 Payments.
Payments made pursuant to grant awards may be made in installments,
and either in advance or by way or reimbursement, with necessary
adjustments on account of overpayments or underpayments as the Secretary
may determine.
(38 FR 26192, Sept. 19, 1973)
38 CFR 17.407 Expenditure of grant funds.
(a) For the purposes of 38 U.S.C. 8211-8214, any funds awarded shall
be expended solely for the costs of assistance in the establishment of
new State medical schools in accordance with the applicable provision of
38 U.S.C., chapter 82, 17.400 through 17.416, and then the terms and
conditions of the grant award.
(b) For the purposes of 38 U.S.C. 8221-5083, any funds granted shall
be expended solely for the expansion or improvement of the training
capacities of medical schools affiliated with the Department of Veterans
Affairs and to permit such schools to cooperate with other public and
nonprofit institutions of higher learning, hospitals and other health
manpower institutions affiliated with the Department of Veterans Affairs
in the training of professional and other health personnel in accordance
with the applicable provisions of 38 U.S.C. chapter 82, 17.400
through 17.416, and the terms and conditions of the grant award.
(c) For the purposes of 38 U.S.C. 8221-8223, any funds granted shall
be expended solely for the costs of assistance in the establishment of
cooperative arrangements among universities, colleges, junior colleges,
community colleges, schools of allied health professions, State and
local systems of education, hospitals, and other nonprofit health
manpower institutions affiliated with the Department of Veterans Affairs
for educational and clinical projects and programs involving allied and
other health manpower in accordance with applicable provisions of 38
U.S.C. chapter 82, 17.400 through 17.416, and the terms and conditions
of the grant award.
(d) For the purposes of the entire chapter, 38 U.S.C., chapter 82,
any unobligated funds remaining in a grant account at the close of the
award period may be carried forward and will be available during a
subsequent award period within the approved program period. The amount
of any subsequent award will take into consideration any unobligated
balance in the grant account. At the end of the last award period of
the approved program period, any unobligated funds remaining must be
refunded to the Federal Government.
(38 FR 26192, Sept. 19, 1973, as amended at 46 FR 33523, June 30,
1981)
38 CFR 17.408 Nondiscrimination.
(a) Grants made under 38 U.S.C. chapter 82 shall be subject to title
IX of the ''Education Amendments Act of 1972'' (effective July 1, 1972)
and regulations promulgated by the Department of Education. Such title
prohibits sex discrimination in all federally assisted education
programs.
(b) Grants made under Pub. L. 92-541 (86 Stat. 1100) shall be
subject to title VI of the Civil Rights Act of 1964 (78 Stat. 252) which
provides that no person in the United States shall on the grounds of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be subject to discrimination under any
program or activity receiving Federal financial assistance. Regulations
implementing such title VI have been issued as 18.1 through 18.4 of
this chapter.
(c) Grant funds used for remodeling, alteration, or repairs shall be
subject to the condition that the grantee shall comply with the
requirements of Executive Order 11246, 30 FR 12319 (September 24, 1965),
as amended, and with the applicable rules, regulations, and procedures
pursuant thereto.
(38 FR 26192, Sept. 19, 1973, as amended at 46 FR 33523, June 30,
1981)
38 CFR 17.409 Publications and copyright.
Except as may otherwise be provided under the terms and conditions of
the award, the grantee may copyright without prior approval any
publications, films, or similar materials developed or resulting from a
project supported by a grant under 17.400 through 17.416, subject,
however, to a royalty free, nonexclusive, and irrevocable license or
right in the Government to reproduce, translate, publish, use,
disseminate, and dispose of such materials and to authorize others to do
so.
(38 FR 26192, Sept. 19, 1973)
38 CFR 17.410 Accountability.
The recipient shall allocate expenditures from the grant award
between direct and indirect costs according to generally accepted
accounting procedures.
(a) For the purpose of 38 U.S.C. 8211-8214, direct grant costs are
limited to the Department of Veterans Affairs contribution to the
payment of faculty salaries. ( 17.405(a)(2)(iii).)
(b) For the purposes of 38 U.S.C. 8221-8223 and 8231-8233, direct
costs may include in proportion to time and effort spent, but are not
limited to, fees and costs directly paid to personnel or for fringe
benefits, publications, educational programs, training, or demonstration
activities carried out in connection with projects and programs by
grantee institutions. In addition, grants made pursuant to 38 U.S.C.
8221-8223 may include costs of construction, provided that such
construction is located on land under the jurisdiction of the Secretary
and leased to the grantee.
(c) For the purposes of 38 U.S.C. 8221-8223 and 8231-8233, indirect
costs may be computed on a percentage basis or on the basis of a
negotiated lump-sum allowance in accordance with the principles set
forth in the Office of Management and Budget Circulars No. A-88, No.
A-87 revised, and No. A-21. In the method of computation used, only
indirect costs shall be included which bear a reasonable relationship to
the program funded by the grant and shall not exceed a percentage
greater than the total institutional indirect cost is of the total
direct salaries and wages paid by the institution.
(38 FR 26192, Sept. 19, 1973, as amended at 46 FR 33523, June 30,
1981)
38 CFR 17.411 Records, reports, and audit.
(a) Records. Each recipient of assistance shall keep records which
fully disclose the amount and disposition by the recipient of the
proceeds of the assistance, the total cost of the project or undertaking
in connection with which the assistance is made and used, the portion of
the costs supplied by other public or private sources, and such other
records prescribed by the Secretary of Veterans Affairs as will
facilitate an effective audit.
(b) Reports. Each recipient of assistance will furnish such periodic
progress reports as the Secretary may find necessary.
(c) Audit. Any application for assistance shall constitute the
consent of the applicant that the Secretary and the Comptroller General
of the United States, or any of their duly authorized representatives,
shall have access to any books, documents, papers and records which are
pertinent to such assistance for the purposes of audit and examination.
(38 FR 26193, Sept. 19, 1973)
38 CFR 17.412 Additional conditions.
The Secretary of Veterans Affairs may with respect to any grant award
impose additional conditions prior to or at the time of any award when
in the Secretary's judgment such conditions are necessary to assure or
protect advancement of the grant purposes, the interest of the
Department of Veterans Affairs or the conservation of grant funds. All
construction, and alterations of buildings and structures, related to
the award of a grant or other assistance will be subject to section
102(2)(C) of the National Environmental Policy Act.
(46 FR 33523, June 30, 1981)
38 CFR 17.413 Early termination and withholding of payments.
Whenever the Secretary finds that a grantee has failed in a material
respect to comply with the applicable provisions of 38 U.S.C. chapter
82, 17.400 through 17.416, or the terms of the grant, the Secretary
may, on reasonable notice to the grantee withhold further payments and
take such other action, including the termination of the grant, as he
finds appropriate to carry out the purposes of 38 U.S.C. chapter 82 and
17.400 through 17.416. Non-cancellable obligations of the grantee
properly incurred prior to the receipt of the notice of termination will
be honored. The grantee shall be promptly notified of such termination
in writing and given the reasons therefor.
(46 FR 33523, June 30, 1981)
38 CFR 17.414 Recapture provision.
(a) If the Secretary determines that any school established with
assistance under 17.400 through 17.416:
(1) Is not accredited and fails to gain appropriate accreditation
within a reasonable period of time;
(2) Is accredited but fails substantially to carry out the term of
the agreement entered into under 38 U.S.C. chapter 82; or
(3) Is no longer operated for the purpose for which such assistance
was granted,
The Secretary shall be entitled to recover from the recipient of
assistance the facilities of such school which were established with
assistance under 17.400 through 17.416. In order to recover such
facilities the Secretary may bring an action in the district court of
the United States for the district in which such facilities are
situated.
(46 FR 33523, June 30, 1981)
38 CFR 17.415 Right to hearing.
The actions contemplated in 17.413 and 17.414 shall not be taken
until the grantee has been afforded an opportunity for a hearing.
Whenever a hearing is held under this section the procedures shall be in
accord with the provisions of 18.9 and 18.10 of this chapter. Failure
of a grantee to request a hearing or to appear at a scheduled hearing
shall be deemed a waiver of the right to be heard and constitutes
consent to the Secretary's decision made on the basis of available
information.
(38 FR 26193, Sept. 19, 1973)
38 CFR 17.416 Expansion of hospital education and training capacity.
Expenditures, not to exceed 30 percent of the funds appropriated
under 38 U.S.C. 8222 for grants to affiliated medical and other schools,
may be made for the extension, expansion, alteration, improvement,
remodeling, or repair of Department of Veterans Affairs buildings and
structures to make them suitable for use for health manpower education
and training. In addition, such expenditures may be made to Department
of Veterans Affairs hospitals and facilities for the development or
initiation of improved methods of education and training.
(38 FR 26193, Sept. 19, 1973)
38 CFR 17.416 Health Services Review Organization (HSRO)
Authority: 38 U.S.C. 5705.
Source: Sections 17.500-17.540 appear at 47 FR 47010, Oct. 22,
1982, unless otherwise noted.
38 CFR 17.500 General.
(a) Health Services Review Organization (HSRO), the Department of
Veterans Affairs' Medical Quality Assurance Program, is a systematic
effort by the Department of Veterans Affairs to ensure an optimal level
of quality patient care. The HSRO program is an ongoing, efficient,
flexible, integrated health care monitoring and improvement system.
HSRO shall review the following aspects of medical quality in VA medical
facilities:
(1) The appropriateness of patient care and services provided,
(2) The effective utilization of resources,
(3) The safety of patients, and
(4) The conduct or performance of VA employees and others engaged in
the provision or support of patient care.
(b) HSRO is a multifaceted program. (1) Health Services Review
Organization-Systematic Internal Review (HSRO-SIR) is an integrated
quality assurance process that is internal to each VA Medical Facility.
(2) Health Services Review Organization-Medical District Initiated
Peer Review Organization (HSRO-MEDIPRO) is a clinically oriented,
medical district based, peer review system of quality of care and
resource utilization assessment to the medical facility.
(3) Health Services Review Organization-Systematic External Review
Program (HSRO-SERP) is a system-wide VA review mechanism external to
each VA medical facility in which health care evaluators review clinical
and administrative aspects of the quality of care in VA medical
facilities and the effectiveness of their HSRO-SIR programs.
(4) Health Services Review Organization-Tort Claim Information System
(HSRO-TCIS) is a computerized system that contains the peer review of
the medical care provided that led to the filing of a tort claim. This
system may be maintained at any and all levels of the Veterans Health
Administration and in the Office of General Counsel and any office under
the jurisdiction of the General Counsel.
(c) Corrective action on all medical facility problems or
recommendations identified by an HSRO-SIR, HSRO-MEDIPRO, HSRO-SERP or
HSRO-TCIS review will be initiated and implemented at the lowest
possible organizational level through the lines of existing authority.
(d) HSRO-SIR, HSRO-MEDIPRO and HSRO-SERP program activities will be
established, conducted and maintained at Veterans Health Administration
(VHS&RA) organizational levels as prescribed in these regulations and VA
policy.
(Authority: 38 U.S.C. 5705)
(e) HSRO-SIR, HSRO-MEDIPRO, HSRO-SERP and HSRO-TCIS program
activities will be established, conducted and maintained at VHS&RA
organizational levels as prescribed by these HSRO confidentiality
regulations and VA policy.
(Authority: 38 U.S.C. 5705)
(47 FR 47010, Oct. 22, 1982, as amended at 54 FR 28668, July 7, 1989;
55 FR 13532, Apr. 11, 1990)
38 CFR 17.501 Administration responsibility.
(a) The Chief Medical Director is responsible for the implementation,
maintenance, and enforcement of these regulations and will ensure that
each VHS&RA organizational element maintains an effective and efficient
HSRO program as specified in VA policy.
(b) The Director, Office of Quality Assurance, will provide guidance,
oversight, and recommendations to the Chief Medical Director concerning
the effectiveness of the HSRO program and the need to make improvements.
(c) Each regional director will ensure that HSRO-MEDIPRO is
operational in the region and that clinical care and resource
utilization problems unresolved at the district level are acted upon.
The regional director will monitor and evaluate the implementation of
district HSRO-MEDIPRO plans; review HSRO-MEDIPRO minutes and reviews;
approve HSRO-MEDIPRO reports; provide necessary followup on
HSRO-MEDIPRO program documents; and approve HSRO-MEDIPRO Board
appointments.
(d) Each medical district director is responsbile for implementing
and supervising the HSRO-MEDIPRO program within the district and for
providing administrative and analytical support. The authority for
day-to-day planning, coordination, implementing and monitoring
compliance with policies and procedures is delegated to the HSRO-MEDIPRO
coordinator. Supervision of the HSRO-MEDIPRO staff will be by the
medical district director or designee.
(Authority: 38 U.S.C. 5705)
(54 FR 28669, July 7, 1989)
17.502 (Reserved)
38 CFR 17.503 Individual facility responsibility.
(a) Each VA medical facility Director is fully responsible for the
HSRO-SIR program within the facility. The authority for coordinating,
training, providing technical support, and conducting day-to-day
supervision of HSRO-SIR activities is delegated to the HSRO Coordinator.
Supervision of the HSRO Coordinator may be by either the medical
facility Director or Chief of Staff as determined by the medical
facility Director.
(b) The Chief of Staff and Assistant medical facility Director are
responsible for assuring that services under their supervision
adequately support and participate in the HSRO-SIR program.
(c) Each Service Chief at a VA medical facility is responsible for
planning and implementing HSRO-SIR for his/her service and ensuring that
HSRO-SIR activities or functions of his/her service are integrated with
and supportive of the VA medical facility HSRO-SIR program and meet the
intent of the HSRO-SIR plan of the VA medical facility.
(d) The VA medical facility Director will authorize an existing
committee or subcommittee to integrate and coordinate HSRO activities.
This committee or subcommittee will be composed of VA medical facility
employees.
(Authority: 38 U.S.C. 5705)
38 CFR 17.504 Conduct.
(a) Any employee participating in HSRO-SIR, HSRO-SERP, HSRO-MEDIPRO
or HSRO-TCIS program activities will exercise prudent and diligent care
and act in good faith while gathering and analyzing factual information
prior to making any judgment which may reflect adversely on a VA
employee or VA medical facility.
(b) Only those employees in supervisory, executive, or HSRO
capacities who have sufficient job related needs to study or otherwise
use confidential and privileged records and documents should have access
to patient or provider specific identification information or to the
confidential coding system. Access to HSRO records within the
Department is governed by 17.527 of this part.
(c) VA employees, upon voluntary or involuntary termination of VA
employment for any reason, will not disclose to any person or
organization any HSRO records or documents which are designated as
confidential and privileged by 38 U.S.C. 5705 and these regulations.
(Authority: 38 U.S.C. 5705)
(54 FR 28669, July 7, 1989, as amended at 55 FR 13532, Apr. 11, 1990)
38 CFR 17.505 HSRO-SIR plan.
Each VA medical facility will develop a written HSRO-SIR plan which
establishes responsibilities, defines policy and describes the
procedures and mechanisms necessary to maintain an effective HSRO-SIR
program. The plan will be reviewed annually as part of the medical
facility's evaluation of its HSRO-SIR program, and updated according to
need. Each VA medical facility HSRO-SIR plan will identify and address
itself to the following subjects:
(a) Philosophy and objectives of the HSRO program (as described in
17.500).
(b) Policy statement.
(c) Responsibilities for:
(1) Program organization and operation.
(2) Annual evaluation of the HSRO-SIR program.
(3) Development and revision of the HSRO-SIR plan.
(4) Staff education regarding HSRO-SIR.
(5) Integrating/coordinating information collection and analysis with
planning, evaluation and monitoring activities.
(6) Eliminating duplication and non-productive review activities.
(d) HSRO-SIR functions and elements (as described in 17.506).
(e) HSRO-SERP and other external reviews.
The plan will be combined with other facility policies and procedures
for assuring the quality of patient care to constitute the facility's
comprehensive HSRO-SIR program.
(Authority: 38 U.S.C. 5705)
38 CFR 17.506 Mandatory HSRO-SIR functions and elements.
The HSRO-SIR plan includes mandatory functions. Each function may
contain various elements. Additional HSRO-SIR elements not identified
in these HSRO regulations may be included within a function in the
HSRO-SIR plan as the VA medical facility Director deems appropriate.
However, such additional elements will not be considered a part of the
HSRO-SIR program for purposes of 38 U.S.C. 5705 and these HSRO
regulations and therefore, shall not be considered confidential HSRO
records or documents. The five mandatory functions and the elements
within these functions are:
(a) Continuous monitoring. (1) Medical records review.
(2) Surgical case (tissue) review.
(3) Blood services review.
(4) Therapeutic agents and pharmacy review.
(5) Laboratory review.
(6) Radiology and nuclear medicine review.
(7) Psychiatric program review.
(8) Commitment usage analysis.
(9) Restraint and seclusion usage analysis.
(10) Infection control review.
(11) Surgical and anesthetic complications review.
(12) Autopsy review.
(13) Mortality and morbidity review.
(14) Review of rejected applications.
(15) Patient incident review.
(16) Occurrence screening.
(b) Patient injury control. (1) Reporting.
(2) Quality assurance investigations.
(c) Utilization review.
(d) Problem focused health care evaluation studies. This includes
special audits of specific problem areas performed at the direction of
the VA medical facility Director or Central Office.
(Authority: 38 U.S.C. 5705)
(47 FR 47010, Oct. 22, 1982, as amended at 54 FR 28669, July 7, 1989)
38 CFR 17.507 Description of continuous monitoring.
(a) The continuous monitoring function is a process by which VA
medical facility personnel review and objectively assess those clinical
activities which are key indicators of the quality of medical care being
provided. These clinical activities must be monitored and evaluated on
a regular and recurring basis, which may involve reviews on a daily,
monthly, quarterly or semi-annual basis or as prescribed by VA policy.
(1) All HSRO monitoring techniques, reviews, studies or surveys shall
use an appropriate sampling procedure. This methodology does not
require 100 percent review of all records and documents being evaluated.
(2) The continuous monitoring process can be differentiated from
day-to-day facility operational management. Unlike day-to-day
management, this monitoring process is based upon the use of explicit
quality of care criteria to collect patient care information over a
specified period of time. This information is used by health care
professionals to determine patterns or trends, assess the quality of
care in conjunction with accepted national, areawide or local
professional standards or norms and propose action necessary to maintain
or improve the quality of care provided.
(3) Elements of continuous monitoring may be performed by a committee
or may be the responsibility of a service, program, or individual, and
may be combined with other HSRO-SIR functions as considered appropriate
by the VA medical facility Director.
(4) The following is a description of the elements which constitute
the continuous monitoring function of the HSRO-SIR program:
(i) Medical records review. The monitoring of facility medical
records requires at least quarterly reviews to ensure that records are
readily available, complete, secure, and provide appropriate
documentation so that health care providers can determine the patient's
needs, the services provided and the outcome of each episode of care.
The monitoring should also ensure that the provider(s) responsible for
the care and treatment of each patient is (are) clearly identified.
(ii) Surgical case (tissue) review. This review includes regular
assessment of all surgical cases, regardless of whether a specimen is or
is not removed, to assure the appropriateness of and the need for the
surgery (surgical indications). This review also includes an evaluation
of all cases in which there is a discrepancy between the preoperative,
postoperative, and pathologic diagnoses.
(iii) Blood services review. This review includes regular and
frequent monitoring to ensure that all aspects of blood services are
handled in a safe, appropriate and therapeutic manner. Thus, the
monitoring will determine whether blood and blood products are safely
stored, ordered, cross-matched, delivered and administered in a timely
and reliable manner. This review monitors the utilization of blood and
blood products and analyzes transfusion reactions and errors.
(iv) Therapeutic agents and pharmacy review. Included in a
therapeutic agents and pharmacy review is a requirement for an
assessment to determine that appropriate medications, drugs, or other
chemicals were used or administered properly in a manner, dose, route
and time schedule appropriate to the patient's care requirements. This
also includes a review of clinicians' prescribing practices and the
administration of chemical agents by nurses and other health care
providers. It also provides for the assessment of the effectiveness of
the prescribed medications and allergic reactions to them.
(v) Laboratory review. This review includes the assessment of a wide
variety of laboratory service tests and procedures to ensure that such
tests are appropriate in relation to individual patient care needs. The
monitoring also determines if the quality control is satisfactory and if
the results are being communicated or transmitted to the requesting
clinician within established timeliness standards.
(vi) Radiology and nuclear medicine review. This review includes the
surveillance of all Radiology and Nuclear Medicine diagnostic and
therapeutic procedures to ensure that they are necessary and
appropriate. This review also includes an evaluation of the timeliness
of responses to requests for these procedures and an assessment of the
quality of the professional service provided so that patient exposure to
radiation is minimized.
(vii) Psychiatric program review. This process evaluates inpatient
and outpatient psychiatric programs on a recurring basis to ensure that
each program is meeting its treatment goals and is providing high
quality patient care.
(viii) Restraint and seclusion usage analysis. This process provides
a regular review to ensure that patients are protected from
inappropriate, excessive or harmful restraint or seclusion.
(ix) Commitment usage analysis. This review provides monitoring on a
regular basis to ensure that patients who are under legal commitment
continue to require such commitment and that commitment is clinically
justified.
(x) Infection control. Infection control includes a recurring review
by facility personnel to determine the trend and extent of nosocomial
infections and to propose corrective actions to control such nosocomial
infections. This review should ensure that patient exposure to
nosocomial infection is minimized.
(xi) Autopsy review. This monitor includes assuring that autopsy
services are appropriately provided and that autopsy findings are a
component of the VA medical facility's review of medical practice.
Findings of all autopsies are to be reviewed at least once each quarter
by the medical staff to determine the thoroughness of patient care,
ascertain the cause of death, confirm or clarify major clinical
diagnoses, identify unsuspected conditions, assess the effects of
therapeutic measures, and validate the medical record. This review
process also includes monitoring of postmortem examinations conducted on
VA patients by local coroners on referral from a VA medical facility.
(xii) Review of rejected applications. A review of the previous
day's rejected applications for care and admission will be conducted
each morning, consistent with VA policy. The review will serve to
identify possible errors in judgment in order that the patient may be
reevaluated and appropriate diagnostic or treatment measures instituted.
(xiii) Surgical complications and anesthesiology review. This review
provides for the study of surgical/anesthetic complications to ensure
high quality of care for surgical patients. It also provides for the
assessment of allergic reaction to anesthesia.
(xiv) Mortality and morbidity review. This review requires the
routine collection and analysis of data to determine that the mortality
and/or morbidity rates meet accepted professional standards and
expectations. This includes an evaluation of all unexpected deaths and
deaths within 24 hours of admission and the review of data to determine
whether certain procedures or practices are contributing to deaths.
(xv) Patient incident review. This review provides a regular
statistical and/or descriptive summary of incidents reported under the
Patient Injury Control program. This summary may include such data and
information as the types and frequency of incidents, hospital location
where incidents occurred, age and type of patient and severity of
incident. This review will analyze trends and may indicate deficiencies
that require further study, policy changes, enforcement, investigation,
etc.
(xvi) Occurrence screening. This involves screening cases against a
predetermined list of criteria concerning the provision of care to
patients, which criteria are specified in advance in any policy
directive from the Chief Medical Director. Other occurrence screening
criteria may be established locally at VA medical facilities, provided
that the locally established criteria conform to the relevant VHS&RA
occurrence screening policy directives issued by the Chief Medical
Director, and that the medical facility director establishes the
facility-specific screening criteria in a policy directive in advance of
implementation. Criteria may be established when the responsible
authority determines that the use of the criteria in occurrence
screening will be for the purpose of improving the quality of care in
VHS&RA health care facilities, including how use of the criteria are
expected to improve the quality of care. Those cases which involve one
or more of the occurrences will be reviewed to identify possible
problems in patient care. Where appropriate, action will be taken to
correct problems identified in individual cases. Cases meeting the
criteria will be entered into an ongoing occurrence screening data base
which will be reviewed and analyzed regularly to identify patterns which
may be problematic. The Chief Medical Director may delete VHS&RA-wide
criteria by means of a policy release. Locally established occurrence
screening criteria may be removed from the protection of 38 U.S.C. 5705
and these regulations if permitted by VHS&RA policy directives and if
the facility director specifically approves their deletion in writing.
Criteria may be deleted when the responsible official determines that a
basis no longer exists for including the criteria or criterion among the
38 U.S.C. 5705-protected occurrence screens. Criteria will be added and
deleted when necessary.
(Authority: 38 U.S.C. 5705)
(47 FR 47010, Oct. 22, 1982, as amended at 54 FR 28669, July 7, 1989)
38 CFR 17.508 Patient injury control.
(a) The Patient Injury Control program will include the monitoring,
reporting, analysis, review and investigation of any unusual, unexpected
or unfavorable incident which a patient may experience during the course
of his/her medical management. Such incidents include those which would
not be considered a natural consequence of the patient's disease process
or illness, as well as those incidents which would carry a recognized
risk of medical intervention. The incident may be an illness or injury
resulting from either omission(s) or commission(s) by a health care
provider(s) or the direct result of medical intervention during the
course of either inpatient or outpatient care. The following types of
cases are examples of incidents for the purposes of the Patient Injury
Control program, HSRO-SIR and these HSRO regulations:
(1) Suicides, suicide attempts and self-inflicted wounds.
(2) Homicides.
(3) Falls.
(4) Assaults and patient abuse/neglect.
(5) Allergic or idiosyncratic reaction to anesthesia, blood or
medications.
(6) Unexpected deaths, including those under anesthesia and during
the performance of a procedure, and deaths within 24 hours of admission.
(7) Transfusion, medication, diagnostic and therapeutic errors.
(8) Surgical complications.
(9) Other incidents which result or may result in injury, harm,
disability, disfigurement or death to a patient.
(b) Reporting. Incidents of patient injury, as defined in paragraph
(a) of this section, will be reported on VA Form 10-2633, ''Report of
Special Incident Involving a Beneficiary'' or other appropriate
document. VA Form 10-2633 or other documents describing incidents of
patient injury used in lieu thereof will not be considered confidential
and privileged documents under 38 U.S.C. 5705 and these HSRO
regulations.
(c) Quality Assurance investigation. (1) A investigation for quality
assurance purposes in the Patient Injury Control Program, or any other
Quality Assurance Program described in these HSRO regulations, is an
inquiry into any incident involving a patient, examples of which are
described in paragraph (a) of this section. The focus of a quality
assurance investigation is to identify problems in the delivery of
health care, to analyze and review such problems and to propose
corrective action. An administration employee who is being questioned
in the course of a quality assurance investigation and who is a
bargaining unit member who requests union representation is entitled to
it. This right arises as the result of labor law considerations. The
union representative must sign a statement as defined in 17.527(e) of
this part. Except under these circumstances described, an employee is
not permitted to have representation during a quality assurance
investigation.
(2) If it is determined by the Medical Facility Director, the Chief
Medical Director, the Medical Inspector, or other authorized designee,
that such an incident necessitates an investigation for quality
assurance purposes, only those records and documents specified in
17.517(d) of this part will be considered privileged and confidential
for the purposes of 38 U.S.C. 5705 and these HSRO regulations, provided
that the following steps are taken:
The decision to conduct a quality assurance investigation must be
documented in writing and signed by the authorizing official. In the
first paragraph of the document, the following statement will be
included to indicate that a quality assurance investigation is being
initiated:
In accordance with the provisions of 38 CFR 17.508(c)(2), I hereby
direct that a quality assurance investigation be conducted regarding
(describing incident). All documents, memoranda, reports and other
records generated by and included in or concerning this investigation as
specified in 17.518(d) of this part will be strictly confidential and
will be disclosable only as permitted by 38 U.S.C 5705.
(3) A Board of Investigation for quality assurance purposes may be
convened in all the following:
(i) Unexpected death of a patient.
(ii) Transfusion error.
(iii) Medication errors that result in death of a patient, generate a
new medical problem or significantly aggravate the patient's existing
condition.
(iv) Homicide.
(v) Alleged patient abuse by staff, another patient(s), visitors and
others.
(vi) Rape involving a patient.
(vii) Serious injury and/or death by fire.
(viii) Any incidents which result or may result in injury, harm,
disability, disfigurement or death of a patient.
(ix) All other incidents involving patients which the authorizing
official believes should be investigated by a Board.
(4) All VA medical facility copies of quality assurance investigation
records and documents will be placed in a secure file established for
the purpose in the office of the medical facility Director, in
accordance with the provisions of 17.527(g). The following procedures
will be observed to ensure the confidentiality of the quality assurance
investigation for purposes of 38 U.S.C. 5705:
(i) Quality assurance investigation records and documents will not be
filed in a manner by which they can be retrieved by an individual
identifier such as a name or other identifying particular assigned to an
individual, nor will they be placed in other records systems, e.g.,
patient medical record or employee personnel file.
(ii) Quality assurance investigation records and documents will not
be made part of investigations conducted for any purposes other than
quality assurance as defined in paragraph (c)(1) of this section. (See
paragraph (c)(5) of this section.)
(5) Prior to, concurrently, or upon completion of a quality assurance
investigation, the Chief Medical Director, Medical Facility Director,
Medical Inspector or other authorized official may initiate a separate,
independent investigation for nonquality assurance purposes, e.g.,
administrative, personnel, and criminal or tort liability investigation.
Any reports, documents, memoranda or other records generated by these
types of nonquality assurance investigations are not covered by the
confidentiality provisions of 38 U.S.C. 5705 and these HSRO regulations.
VA employees with an official need to know may have access to quality
assurance investigation records and documents for nonquality assurance
purposes, in order to ascertain sufficient background information to
conduct a separate and independent nonquality assurance investigation,
e.g., personnel action, or to enable the Department to assess its
position in a tort liability case (See 17.527). Quality assurance
investigation records and documents cannot be used by Department
employees as evidence, or relied upon in a manner which could require
them to be treated as evidence so that they would be subject to
mandatory disclosure in an administrative, statutory or judicial
process.
(Authority: 38 U.S.C. 5705)
(47 FR 47010, Oct. 20, 1982, as amended at 55 FR 13532, Apr. 11,
1990)
38 CFR 17.509 Utilization review.
(a) The utilization review function includes a number of clinical and
administrative screening, techniques, studies, and reviews to assure
that resources within the VA medical facility are appropriately
utilized. Utilization review may be performed by committee(s), clinical
staff and/or administrative support staff.
(b) Utilization review studies topics with generic, problem or
disease specific or patient-need specific concerns to determine whether
health care utilization is effective. Frequently, utilization review
studies will concentrate on problems identified by the continuous
monitoring process. Utilization review will periodically assess:
(1) Appropriateness of admission(s) and rejection(s),
(2) Length of stay and continuance of stay,
(3) Appropriateness/effectiveness of utilization of services, special
medical programs and other resources,
(4) Timeliness of admission and outpatient processing.
(Authority: 38 U.S.C. 5705)
38 CFR 17.510 Problem focused health care evaluation.
(a) Problem focused health care evaluation is an approach taken to
understand and manage complex problems of major consequence to patient
care processes and outcomes. This approach focuses on problem
assessment, corrective action planning, implementation and follow-up.
Each clinical and/or administrative service will be responsible for
carrying out problem focused health care evaluation studies, to the
extent necessary, within their respective areas of responsibility.
(b) Problem focused health care evaluation studies usually involve a
multidisciplinary approach. The necessity for conducting a problem
focused health care evaluation study may be identified from problems
detected through utilization review, continuous monitoring, patient
injury control, or other sources.
(c) A VA Medical Facility Director may request a special audit or
study of a certain program or process of care to be performed by either
VA and/or non-VA reviewers external to the Facility. These special
audits or studies will be considered as problem focused health care
evaluations.
(Authority: 38 U.S.C. 5705)
17.511 -- 17.513 (Reserved)
38 CFR 17.514 HSRO-MEDIPRO.
(a) Each medical district, in accordance with any directives from the
Chief Medical Director, will develop and establish a written MEDIPRO
plan which establishes responsibilities, defines policy and describes
procedures and mechanisms necessary to maintain an effective
HSRO-MEDIPRO program. The plan will be reviewed annually by the
HSRO-MEDIPRO board, updated as appropriate and will address the
following subjects:
(1) Purpose of HSRO-MEDIPRO program.
(2) Program objectives.
(3) HSRO-MEDIPRO board structure and functions.
(4) Use of physician/dental advisors.
(5) HSRO-MEDIPRO staff roles and responsibilities.
(6) Meeting schedule and protocol.
(7) Review process.
(8) Plans for periodic reliability checks on HSRO-MEDIPRO staff and
physician/dental advisors.
(9) Reporting.
(10) Relationship to other district councils.
(b) HSRO-MEDIPRO provides a means for representative VA health care
professionals to evaluate VA medical facility, patient and practitioner
records and documents to assess the quality of care and appropriateness
of resource utilization. The goal of the HSRO-MEDIPRO program is to
foster quality care under a prospective resource allocation methodology.
HSRO-MEDIPRO is designed to function as a data driven system which
combines data analysis and subsequent chart review to focus peer review
activities. HSRO-MEDIPRO is intended to augment and not duplicate
existing VA quality assurance activities including HSRO-SIR and
HSRO-SERP.
(c) Each HSRO-MEDIPRO program, in accordance with any directives from
the Chief Medical Director, will establish uniform procedures and
conduct peer review activities including, but not limited to, the
following:
(1) Analyzing data to identify potential problems in quality of care
or validity of data and to develop and review objectives on a regular
basis. VA data sources include, but are not limited to, Patient
Treatment File (PTF), records maintained on the Decentralized Hospital
Computer Program (DHCP), tort claims, incident reports, and Automated
Management Information System (AMIS). Problem areas may be indicated by
statistically significant variations between appropriate medical
district, regional or national peer group patterns of care. The
following categories are examples of potential problem areas for the
purpose of HSRO-MEDIPRO data analysis and focused review and these
regulations:
(i) Mortality.
(ii) Interhospital transfers.
(iii) Interservice transfers.
(iv) Inpatient admissions/readmissions.
(v) Applicants found not in need of care.
(vi) One-day inpatient stays.
(vii) Length of stay by Diagnostic Related Group (DRG).
(viii) Discharge planning.
(ix) Appropriateness of levels of care such as acute care, long-term
care, and ambulatory care.
(x) Ancillary services.
(2) Selecting topics for focused review. HSRO-MEDIPRO boards, in
accordance with any directives from the Chief Medical Director, will
select and prioritize topics for review based on medical district,
regional and national considerations. Such considerations may include,
for example, topics which reflect deviations of clinical indicators from
VA system norms; topics which reflect large numbers of patients or
serious consequences such as death or disability; topics which are
likely to reflect systemwide problems related to resource allocation
systems and other VA cost containment efforts; and topics which lend
themselves to intervention at the medical center level.
(3) Generating clinical hypotheses and study objectives. Each
HSRO-MEDIPRO board and staff will generate clinical hypotheses and study
objectives for focused review topics.
(4) Developing criteria. HSRO-MEDIPRO board and staff will develop
and/or use specific, objective criteria to guide records review and
analysis. A variety of resources may be used in the development of
criteria including previously developed criteria and physician and
dental advisor expertise.
(5) Conducting focused review and, as necessary, referring records
and other documents to physician/dental advisors for peer review.
Focused review refers to the review of a well-defined, limited or
structured topic by a health professional peer in order to evaluate a
potential quality of care problem or opportunity for improvement. Peer
review refers to an assessment by health care practitioners of services
ordered or furnished by other practitioners in the same professional
field.
(6) Sharing findings with VA medical facilities, HSRO-MEDIPRO will
provide medical facilities with information relative to quality of care
and practice patterns. Such information may include
practitioner-specific and aggregate district, region and national data.
VA medical facilities will use these findings in their HSRO-SIR program
to document statisfactory or superior quality of care and to identify
areas where attention should be directed. If necessary, medical centers
will take action to correct identified problems or make improvements
through appropriate interventions such as education and training of VA
medical staff or management. Other HSRO-MEDIPRO information that may be
provided to medical facilities includes study criteria, data validation
information, HSRO-MEDIPRO study summaries pertaining to the medical
center, HSRO-MEDIPRO minutes and quarterly reports, and letters of
observation indicating potential problems found in areas other than the
topic under consideration for focused review.
(7) Resolving facility disagreement with HSRO-MEDIPRO study findings.
Medical facilities may communicate in writing to the HSRO-MEDIPRO board
where there is a disagreement over the findings of a HSRO-MEDIPRO study.
The HSRO-MEDIPRO board will review all such medical facility documents;
unresolved issues will be referred to the appropriate regional director
for action.
(8) Providing HSRO-MEDIPRO board followup as necessary. HSRO-MEDIPRO
boards, in accordance with any directives from the Chief Medical
Director, will conduct followup evaluations of medical center actions
after an appropriate period of time has elapsed.
(9) Integrating findings with the appropriate VHS&RA organizational
elements. HSRO-MEDIPRO will report periodically on its findings and
followup actions to the respective regional director and to the
Director, Office of Quality Assurance. Where study findings have
implications for planning or resource allocation purposes, communication
should occur with the appropriate organizational unit, e.g., the
District Planning Board or the District Executive Council.
(d) VA may conduct a health care review(s) of HSRO-MEDIPRO to
determine the effectiveness of the HSRO-MEDIPRO program in meeting its
objectives, assess compliance with relevant policies and procedures,
validate medical record reviews and to accomplish other similar
objectives.
(e) Each medical district will have an HSRO-MEDIPRO board consisting
of clinically active VA physicians and dentists to conduct HSRO-MEDIPRO
activities. The membership and selection process for the HSRO-MEDIPRO
boards will be determined by VA policy directive(s).
(f) A medical district or the VHS&RA may contract in writing with
non-VA personnel or entities for the performance of MEDIPRO activities
or functions or for an evaluation of MEDIPRO activities or functions.
An evaluation of MEDIPRO activities or functions, whether performed by
VA personnel or by a contractor, is a MEDIPRO activity.
(Authority: 38 U.S.C. 5705)
(54 FR 28670, July 7, 1989)
38 CFR 17.515 HSRO-SERP.
(a) HSRO-SERP is an ongoing review program concerned principally with
the quality of patient care provided at each VA medical facility and the
effectiveness of its HSRO-SIR program. HSRO-SERP evaluates each VA
medical facility service as well as the facility as a whole. The
HSRO-SERP review includes a periodic assessment conducted at each VA
medical facility by a multidisciplinary peer review team of VA health
care professionals. Team members are selected from other VA medical
facilities for their expertise in their respective disciplines and their
evaluation skills. The HSRO-SERP review may also address the
effectiveness of the HSRO-MEDIPRO program.
(b) HSRO-SERP also includes reviews and analyses of HSRO-SIR,
HSRO-SERP and HSRO-MEDIPRO documents by VA central office officials.
(c) The HSRO-SERP program is intended to complement other
evaluations, reviews and surveys of VA medical facilities that utilize
standards and criteria which may be unrelated to the quality of patient
care. Such activities are conducted by a variety of agencies and
organizations including VA's VHS&RA accrediting bodies such as the Joint
Commission on Accreditation of Healthcare Organizations, Federal
regulatory agencies, e.g., Nuclear Regulatory Commission, and veterans'
organizations.
(Authority: 38 U.S.C. 5705)
(54 FR 28671, July 7, 1989)
38 CFR 17.516 HSRO records and documents.
(a) Section 5705, title 38 U.S.C. was enacted to protect the
integrity of the VA's medical quality assurance program (HSRO) by making
confidential and privileged certain records and documents generated by
the HSRO program. Disclosure of HSRO records and documents made
confidential and privileged by 38 U.S.C. 5705 and these HSRO regulations
may only be made in accordance with the provisions of 38 U.S.C. 5705 and
these HSRO regulations.
(b) Disclosure of those HSRO records and documents not made
confidential and privileged by 38 U.S.C. 5705 and these HSRO regulations
will be governed by provisions of the Freedom of Information Act, the
Privacy Act and/or, if applicable, any other VA confidentiality
statutes. HSRO records and documents protected by 38 U.S.C. 5705 and
these HSRO regulations are not within the scope of the Privacy Act and
therefore, shall not be filed in a manner so that they may be retrieved
by reference to an individual identifier.
(c) When reviewed or examined in a HSRO program, confidential records
protected by statutes such as 38 U.S.C. 5705; 5 U.S.C. 552a, the
Privacy Act; 38 U.S.C. 7332 (drug and alcohol abuse and sickle cell
anemia treatment records); and 38 U.S.C. 5701 (veterans' names and
addresses), retain whatever confidentiality protection they have under
these laws and applicable regulations and will be handled accordingly.
To the extent that information protected by 38 U.S.C. 5701 or 7332 is
incorporated into HSRO records, the information in the HSRO records is
still protected by these statutes.
(d) Records and documents generated by a contractor or consultant in
the course of conducting an HSRO program activity or function as
specified in these regulations or an evaluation of any HSRO program as
specified in these regulations shall be confidential and privileged to
the same extent that the records and documents would be confidential and
privileged if created by the Department under these regulations.
(Authority: 38 U.S.C. 5705)
(47 FR 47010, Oct. 22, 1982. Redesignated at 54 FR 28671, July 7,
1989, and amended at 54 FR 28671, July 7, 1989)
38 CFR 17.517 HSRO-SIR records and documents.
(a) For purposes of 38 U.S.C. 5705, HSRO-SIR records and documents
which are considered confidential and privileged are those which pertain
to mandatory HSRO-SIR functions or elements as identified in 17.506.
Such records and documents are confidential and privileged even if
individual identifiers are deleted.
(b) Records and documents which are aggregations of statistical data
from quality assurance studies and reviews, and which do not identify,
even by implication, VA employees or others involved in the quality
assurance process are not privileged or confidential.
(c) Continuous monitoring and utilization review functions generate
individual, committee or study team minutes, notes, reports and
memoranda produced in the process of deliberations by health care
evaluators. Such documents are confidential and privileged in their
entirety. Individual continuous monitoring and utilization review
documents comparing one or more patient's treatment with objective
criteria or norms would be such a confidential document. Other
memoranda and study documents or records prepared for review by HSRO-SIR
committees are confidential and privileged only if they reveal the
identity, even by implication, of individual VA employees or other
individuals involved in the quality assurance process or the results or
outcomes of HSRO-SIR reviews or studies. Summary documents or records
which only identify study topics, the period of time covered by the
study, criteria, norms, interpretive comments and major overall
findings, but which do not identify health care providers, even by
implication, are not considered confidential and privileged documents or
records under 38 U.S.C. 5705 and these regulations. In addition,
occurrence screening records generated in the course of screening cases
against either centrally established or locally adopted criteria are
protected by 38 U.S.C. 5705 and these regulations. However, the
criteria and the documents signed by the Chief Medical Director or
facility director establishing them are not protected. After one of the
criteria is deleted from the list of occurrence screens protected by 38
U.S.C. 5705 and these regulations, records generated in the course of
screening cases against that criterion are not protected by 38 U.S.C.
5705 and these regulations; however, records generated while the
particular occurrence screen was protected will retain that protection.
(d) Patient Injury Control records and documents include incident
reporting form(s) (VA Form 10-2633, Report of Special Incident Involving
a Beneficiary), screening records, patient incident analysis and quality
assurance investigations. However, only those records and documents
that are generated during or concerning a quality assurance
investigation in accordance with 17.508(c)(2) are confidential and
privileged as provided by 38 U.S.C 5705. These include:
(1) Minutes, testimony transcripts, reports or other documents
contained in the investigation.
(2) Memoranda or other documents generated within the facility as
part of the review of the investigation.
(3) Letters from the Medical Inspector or Regional Director, or
authorized designee to the medical facility dealing with the
investigation and its review.
(4) Letters from the medical facility to the Regional Director,
Medical Inspector or authorized designee responding to their letters of
inquiry, or comment concerning the quality assurance investigation.
(5) Memoranda, reports or other documents generated within the Office
of the Medical Inspector or the Regional Director's office or their
designees dealing with the investigation or a review of the
investigation.
(Authority: 38 U.S.C. 5705)
(e) Problem focused health care evaluation studies generate committee
or study team minutes, reports or audits and memoranda that contain the
deliberations of health care evaluators. Such records and documents are
confidential and privileged in their entirety. Study documents
revealing actual results or outcomes of individual patient care and
treatment, as compared with objective criteria or norms or which may
identify, even by implication, VA employees or others involved in a
quality assurance process or reveal the results or outcomes of HSRO-SIR
reviews are confidential and privileged.
(Authority: 38 U.S.C. 5705)
(47 FR 47010, Oct. 22, 1982. Redesignated at 54 FR 28671, July 7,
1989, and amended at 54 FR 28671, July 7, 1989; 55 FR 13532, Apr. 11,
1990)
38 CFR 17.518 HSRO-MEDIPRO records and documents.
(a) Those records and documents generated by HSRO-MEDIPRO activities
in accordance with 17.514 of this part are confidential and privileged.
(b) HSRO-MEDIPRO records and documents made confidential and
privileged as provided by 38 U.S.C. 5705 include the following:
(1) Records and documents which reveal the actual results or outcomes
of studies of individual patient care and treatment as compared with
clinical criteria or norms or which may identify, even by implication,
individual VA patients or employees or other individuals involved in
peer review activities. Such studies are based on analyses of data from
such sources as the PTF, records maintained on the DHCP and medical
records. Those records and documents which are maintained in personnel
or similar files are not made confidential and privileged by 38 U.S.C.
5705. 38 U.S.C. 5705 makes confidential and privileged the minutes,
notes, reports and other documents produced in the process of
deliberations by the HSRO-MEDIPRO board when it reviews the performance
of a medical facility or health care professional for the purpose of
peer review.
(2) HSRO-MEDIPRO notes, working papers, staff reports and memoranda
that contain the deliberations of health care evaluators.
(3) HSRO-MEDIPRO board minutes, memoranda, deliberations, reports,
letters, studies or other documents pertaining to HSRO-MEDIPRO peer
review activities.
(4) Records, notes, reports, working papers, memoranda,
correspondence and all other documents concerning the evaluation of the
MEDIPRO program peer review activities. Routine administrative
documents, e.g., a letter transmitting a substantive report, but itself
not containing any substantive information and not identifying a program
participant, are not protected.
(c) Other documents concerning HSRO-SIR reviews or studies prepared
for review by HSRO-MEDIPRO staff or board are confidential and
privileged only if they reveal the identity, even by implication, of VA
employees or others involved in the quality assurance process or the
results or outcomes of HSRO-SIR reviews or studies, as provided in
17.517.
(d) Summary documents or records, other than those discussed in
paragraphs (a), (b), and (c) of this section, which only identify study
topics, the period of time covered by the study, criteria, norms or a
summary of findings, and which do not identify VA patients or employees
or others involved in peer review activities, even by implication, are
not considered confidential and privileged documents or records under 38
U.S.C. 5705 and these regulations.
(e) Records and documents, to the extent that they are aggregations
of statistical data and do not identify, even by implication, individual
VA employees or other individuals involved in the peer review process,
are not confidential or privileged. Nothing in these regulations shall
be construed to authorize or require the withholding of such aggregate
statistical data or information from disclosure.
(f) HSRO-MEDIPRO documents must not be filed in a manner by which
they can be retrieved by reference to an individual identifier.
(Authority: 38 U.S.C. 5705)
(54 FR 28671, July 7, 1989)
38 CFR 17.519 HSRO-SERP records and documents.
(a) Only those records and documents generated by HSRO-SERP in
accordance with 17.516 are confidential and privileged.
(b) HSRO-SERP records and documents made confidential and privileged
as provided by 38 U.S.C. 5705 include the following:
(1) Standards, Criteria, Evaluative Algorithms, and Measuring
Instruments (SCEM) worksheets prepared by individual SERP surveyors and
team leaders.
(2) Working notes, dictation and reports prepared by individual SERP
surveyors and team leaders.
(3) SERP reports and statistical reports based on SCEM data, both in
draft and final form.
(4) Information provided SERP teams by VA medical facilities prior to
an on-site assessment.
(5) Responses by VA Medical Facility Directors and VACO staff to
findings or recommendations identified in a SERP report.
(6) Memos covering items of a confidential nature which are related
to but not necessarily contained in the SERP report.
(7) Special audits of a VA medical facility service or health care
program, conducted by VA or non-VA reviewers (or a combination) external
to the VA medical facility, at the request of Central Office. This
includes audits or studies of one or more VA medical facilities where
the study or audit concerns the same service or program in each
facility.
(Authority: 38 U.S.C. 5705)
38 CFR 17.520 Improper disclosure.
(a) Improper disclosure is the release of confidential and privileged
HSRO records or documents (or information contained therein), as defined
in 17.517, 17.518 and 17.519, to any person who is not authorized
access to the records or documents.
(b) Disclosure means the communication, transmission, or conveyance
in any way of any confidential and privileged HSRO records or documents
to any individual or organization in any written or oral form.
(Authority: 38 U.S.C. 5705)
38 CFR 17.521 Disclosure methods.
(a) Disclosure of confidential and privileged HSRO records and
documents outside VA will always be by copies, abstracts, summaries, or
similar records or documents prepared by the Department of Veterans
Affairs and released to the requestor. The original confidential and
privileged HSRO records and documents will not be removed from the VA
medical facility by any person, VA employee or otherwise, except in
accordance with 17.527 (h) and (i).
(b) Disclosure of written confidential and privileged HSRO records
and documents to authorized individuals under either 17.527 or 17.534
shall bear the following statement: ''These documents or records (or
information contained herein) are deemed confidential and privileged
under provisions of 38 U.S.C. 5705 and 17.500-17.540, which provide
for fines up to $20,000 for violations. This material shall not be
transmitted to anyone without proper consent or other authorization as
provided for by law or regulation.''
(Authority: 38 U.S.C. 5705)
38 CFR 17.522 Non-Department of Veterans Affairs requests.
Requests for confidential and privileged HSRO records and documents
from organizations or individuals outside VA must be in writing and
signed and must specify the nature and content of the information
requested, to whom the information should be transmitted or disclosed,
and the purpose for which the information requested will be used. In
addition, the requestor will specify the beginning and final dates of
the period for which disclosure or access is requested.
(Authority: 38 U.S.C. 5705)
38 CFR 17.523 Disclosure authorities.
(a) The VA Medical Facility Director is authorized to disclose any
confidential and privileged HSRO-SIR records or documents to other
agencies, organizations, or individuals where these regulations
expressly provide for disclosure.
(b) The VA medical district director is authorized to disclose any
confidential and privileged HSRO-MEDIPRO records or documents to other
agencies, organizations, or individuals where these regulations
expressly provide for disclosure.
(c) The VA regional director is authorized to disclose any
confidential and privileged HSRO-SERP records or documents to other
agencies, organizations, or individuals where these regulations
expressly provide for disclosure.
(d) The VA Chief Medical Director is authorized to disclose any
confidential and privileged HSRO records or documents to other agencies,
organizations, or individuals where these regulations expressly provide
for disclosure.
(Authority: 38 U.S.C. 5705)
(54 FR 28672, July 7, 1989)
38 CFR 17.524 Appeal of decision to deny disclosure.
When a request for records or documents subject to these regulations
is denied by the VA medical facility director, medical district
director, regional director or Chief Medical Director, the VA official
denying the request will notify the requestor of the right to appeal
this decision to the General Counsel of the Department of Veterans
Affairs within 60 days. The final Department decision will be made by
the General Counsel or the Deputy General Counsel.
(Authority: 38 U.S.C. 5705)
(55 FR 21546, May 25, 1990)
38 CFR 17.525 Facility responsibilities.
(a) Each VA medical facility will have written policies regulating
access, disclosure, transmittal and destruction of confidential and
privileged HSRO records and documents consistent with these HSRO
regulations and VA policy.
(b) Each VA Medical Facility Director will designate an appropriate
official as the HSRO Confidentiality Officer and the responsible VA
official for ensuring confidentiality of HSRO records and documents.
(c) VA Medical Facility Directors, Service Chiefs, and supervisors
shall ensure that all persons under their supervision are aware of their
responsibilities to maintain confidentiality of HSRO records and
documents and of the existence of penalities for any violation of 38
U.S.C. 5705 and these HSRO implementing regulations.
(d) All VA employees, students, trainees, residents, volunteers, and
contract personnel will comply with the requirements of these HSRO
regulations and will treat the findings, views, and actions of
colleagues relating to HSRO in a confidential manner.
(e) Employees, upon voluntary or involuntary termination of VA
employment for any reason, will not disclose any HSRO records or
documents which are designated as confidential and privileged to any
source.
(Authority: 38 U.S.C. 5705)
17.526 (Reserved)
38 CFR 17.527 Access to HSRO data within the Department.
(a) Access to protected quality assurance data, which now includes
HSRO-TCIS data, within the Department pursuant to this section is
restricted to VA employees (including consultants and contracts of VA)
subject to the requirements of 17.504 of this part.
(b) No individual shall be permitted physical access to privileged
and confidential HSRO records and documents identified in 17.517,
17.518 and 17.519 of this part unless such individual has received
adequate training and has been informed of the penalties for
unauthorized disclosure. Any misuse of confidential and privileged HSRO
records or documents shall be reported through the HSRO confidentiality
officer to the appropriate VHS&RA official.
(c) Access to confidential and privileged HSRO records and documents
shall generally be limited for quality assurance purposes only, and only
to those persons who have a need for such information and who are
authorized by the VA Medical Facility Director or these HSRO
regulations.
(d) A list should be maintained at each medical facility, medical
district, region and the central office of those VA employees or others
who are authorized access to confidential and privileged HSRO records
and documents. Each authorized individual will sign a statement that he
or she is aware of the requirements for confidentiality and will not
divulge any information in any way to any source or person except in
accordance with these regulations.
(e) Any VA employee or other individual not on this List of
Authorization, who is granted disclosure of or access to protected
quality assurance records or documents must sign a statement verifying
awareness of the regulations and penalties relevant to improper
disclosure of confidential and privileged HSRO records and documents and
agreeing to hold the records or documents confidential. These signed
statements will be maintained in a file with a copy of individual
requests for protected quality assurance records and documents and a
notation of those records or documents which have been released or
disclosed. The union representative of an employee in a quality
assurance investigation as defined in 17.503(c) of this part must sign
such a statement each time that individual serves as a representative in
a quality assurance investigation. If the individual is representing
more than one person during the course of a single quality assurance
investigation this statement must indicate the names of all the
employees being represented.
(f) In cases of oral disclosure, the person disclosing the
confidential and privileged information shall inform the recipient that
such information is confidential under the provisions of 38 U.S.C. 5705.
(g) Confidential and privileged HSRO records and documents shall be
maintained in secure filing cabinets and locked when not under personal
supervision. A security system for storing, processing, accessing and
retrieving automated data will be developed and maintained at each
medical facility, medical district, region and VACO. Such security
systems will include procedures and internal controls to identify
individuals who have authorized access to those data and at what time
such access occurred. Adequate internal controls will be developed and
maintained so that confidential and privileged data, including automated
data, may not be retrieved by an individual identifier(s). Each VA
medical facility, medical district, region and the VACO will provide for
the periodic review of confidential and privileged HSRO records and
documents, including data, to determine whether security is adequate and
which, if any, records and documents shall be retained. In general,
confidential and privileged HSRO records and documents will be
maintained for a minimum of 3 years and may be held longer if needed for
HSRO research studies, legal purposes, or related quality assurance
purposes.
(h) HSRO-SIR records and documents, as defined in 17.517 of this
part, will be available to HSRO-MEDIPRO staff and board members, the
medical district director and other medical district management
officials, regional directors and HSRO-SERP team members. HSRO-SIR,
HSRO-MEDIPRO and HSRO-SERP records and documents will be available to VA
central office management officials working in HSRO functions, service
and staff office directors, and assistant chief medical directors.
(i) Any HSRO record or document, whether confidential and privileged
or not, may be provided to the General Counsel or his/her designee, a
District Counsel or his/her designee or to a Department of Justice (DOJ)
attorney who is investigating a claim or potential claim against the VA
or who is preparing for litigation involving the VA. If necessary, such
a record or document may be removed from the VA medical facility to the
site where the General Counsel (designee), District Counsel (designee)
or the DOJ attorney is conducting an investigation or preparing for
litigation.
(j) Nothing in these HSRO regulations shall be construed as banning
disclosure to the Office of the Inspector General pursuant to the
Inspector General Act of 1978, Pub. L. 95-452.
(Authority: 38 U.S.C. 5705)
(47 FR 47010, Oct. 22, 1982, as amended at 54 FR 28672, July 7, 1989;
55 FR 13533, Apr. 11, 1990)
17.528 -- 17.533 (Reserved)
38 CFR 17.534 Authorized disclosure: Non-Department of Veterans
Affairs requests.
(a) Disclosure shall be made to approved Federal agencies upon their
written request to permit VA's participation in health care programs,
evaluation research, planning, or related activities with the requesting
agencies. Any Federal agency may apply to the Chief Medical Director
for approval. Upon approval, the requesting agency will enter into an
agreement with VA to ensure that such agency and its staff will ensure
the confidentiality of any HSRO records or documents shared with such
agency or organization.
(b) The Chief Medical Director may approve such a written request if
it meets any of the following criteria:
(1) Participation by VA in such activity will benefit patient care.
(2) Participation by VA in such activity will enhance health care
research.
(3) Participation by VA in such activity will enhance evaluation
research.
(4) Participation by VA in such activity will enhance health care
planning or program development activities.
(c) Qualified persons or organizations engaged in the provision of
health care delivery, including academic institutions, shall, upon
written request and approval by the Chief Medical Director have access
to confidential and privileged HSRO records and documents where needed
for such research provided that no records or documents are removed from
the VA medical facility which prepared them. Such request, together
with the research plan and/or protocol, shall first be submitted to, and
approved by, an appropriate VA medical facility Research and Development
Committee and then by the Director of the VA medical facility. The VA
medical facility staff together with the qualified person(s) conducting
the research shall be responsible for the preservation of the anonymity
of the patients, clients and providers and shall not disseminate any
records or documents which identify such individuals. This applies to
the handling of data or information as well as reporting or publication
of findings.
(d) Protected quality assurance records or documents, including
records pertaining to a specific individual, shall be disclosed to a
civil or criminal law enforcement governmental agency or instrumentality
charged under applicable law with the protection of public health or
safety if a written request for such records or documents is received
from an official of such an organization. The request must state the
purpose authorized by law for which the records will be used. This
includes disclosure for State licensing and disciplinary agencies.
(e) Federal and private agencies or organizations charged with
protecting the public health and welfare by various monitoring and
quality control activities or those agencies responsible for licensure
of individual health care facilities or programs or similar
organizations shall be provided confidential and privileged HSRO records
and documents so long as the records or documents requested are to
assist the requesting agency or organization to carry out its licensing
or monitoring mandate or mission. The VA Medical Facility Director will
determine the extent of information disclosable and the circumstances
under which release is appropriate.
(f) In general, Joint Commission (Joint Commission on Accreditation
of Healthcare Organizations) survey teams and similar national
accreditation agencies or boards and other organizations requested by VA
to consult, assess or evaluate the effectiveness of HSRO-SIR,
HSRO-MEDIPRO or HSRO-SERP program activities are entitled to full
disclosure of any and all privileged and confidential HSRO records or
documents with the following qualifications:
(1) Accreditation agencies which are charged with assessing all
aspects of medical facility patient care, e.g., Joint Commission, may
have access to all confidential HSRO records and documents.
(2) Accreditation agencies charged with more narrowly focused review
(e.g., College of American Pathologists, American Association of Blood
Banks, Nuclear Regulatory Commission, etc.) may have access only to such
confidential and privileged HSRO records and documents as are relevant
to their respective focus.
(g) Confidential and privileged HSRO records and documents shall be
released to health care personnel upon request to the extent necessary
to meet a medical emergency affecting the health or safety of any
individual.
(h) Confidential and privileged HSRO records and documents shall be
released to Congressional Committees or subcommittees if such records or
documents pertain to any matter within the jurisdiction of such
committee or subcommittee.
(i) Confidential and privileged HSRO records and documents shall be
released to the General Accounting Office if such records or documents
pertain to any matter within its jurisdiction.
(j) For any disclosure made under paragraphs (a) through (g) of this
section, the name of and other identifying information regarding any
individual VA patient, employee or any other individual associated with
VA for purposes of the HSRO program shall be deleted from any
confidential and privileged HSRO record or document before any
disclosure under these HSRO regulation is made, if disclosure of such
name and identifying information would constitute a clearly unwarranted
invasion of personal privacy.
(Authority: 38 U.S.C. 5705)
(47 FR 47010, Oct. 22, 1982, as amended at 54 FR 28672, July 7, 1989;
55 FR 13533, Apr. 11, 1990)
38 CFR 17.535 Redisclosure.
No person or entity to whom an HSRO record or document has been
disclosed under 17.527 or 17.534 shall make further disclosure of such
record or document except for a purpose provided for in these HSRO
regulations.
(Authority: 38 U.S.C. 5705)
17.536 -- 17.539 (Reserved)
38 CFR 17.540 Penalties for violations.
Any person who knows that a document or record is a confidential and
privileged HSRO document or record described herein and willfully
discloses such confidential and privileged HSRO record or document,
except as authorized by these HSRO regulations, shall be fined not more
than $5,000 in the case of a first offense and not more than $20,000 in
the case of each subsequent offense.
(Authority: 38 U.S.C. 5705)
38 CFR 17.541 Tort Claim Information System.
(a) Tort claims against the Department arising from medical care
provided by the Department of Veterans Affairs usually involve
allegations that the medical care was inadequate in some manner. This
portion of the Quality Assurance Program will review the medical care
that is the subject of the tort claim and any protected quality
assurance information that may relate to this case to identify, evaluate
and, where appropriate, correct circumstances that have the potential of
adversely affecting other patients. When the claim is received, the
District Counsel will notify the medical center(s) involved in providing
the medical care identified in the allegations that a claim has been
filed and the particulars of the claim. The medical care provided will
then be reviewed by the medical center(s), the Office of the Regional
Director and the Office of the Medical Inspector. Specialists external
to the Department of Veterans Affairs, as well as any other appropriate
review group, may be asked in writing by one of the Health Services
Review Organization entities listed in 17.500(b) to review the case.
(b) The peer review will be undertaken in the following manner:
(1) Each medical center will, upon notification that an alleged
malpractice claim has been filed involving that facility, conduct a peer
review of the case in question.
(2) The medical center's completed peer review analysis of the case,
as well as the clinical information concerning the case and any
pertinent protected quality assurance information, will be forwarded
through the Regional Director to the Office of the Medical Inspector,
Department of Veterans Affairs Central Office. The Regional Director
will analyze information submitted by the medical centers within the
region and will make determinations on such matters as problems/errors
in case management.
(3) The Medical Inspector will create a Tort Claim Information System
(TCIS) for the Department of Veterans Affairs. The Medical Inspector
will analyze the information submitted by the medical centers and make
determinations as to the quality of care provided, including
problems/errors in case management.
(4) The results of the analyses and investigations conducted pursuant
to this paragraph will be placed in TCIS.
(c) The reviews under paragraph (b) of this section may take the form
of an investigation, a peer review by a single health care provider, a
mortality/morbidity review or a peer review by multiple health care
providers. These reviews may be conducted at any organizational level
within VHS&RA. These reviews may be done in part or in full by experts
from outside the Department of Veterans Affairs. Experts from outside
the Department of Veterans Affairs may participate in the Department of
Veterans Affairs review of these cases. Such experts must be advised of
the restrictions and penalties for redisclosure of protected quality
assurance records and documents, and agree, in writing, to comply with
them. In conducting the TCIS peer review analyses and investigations,
the reviewers are entitled to access to any quality assurance data and
records protected by 38 U.S.C. 5705 and these regulations to the extent
necessary to perform assigned TCIS functions.
(d) Only those records and documents generated during peer review in
accordance with this section are considered confidential and privileged
under TCIS. TCIS records and documents made confidential and privileged
by 38 U.S.C. 5705 and these regulations include the following:
(1) Minutes, testimony transcripts, reports or other documents
contained in the review of the medical facility.
(2) Memoranda or other documents generated within the facility as
part of the review of the claim.
(3) Letters and documents from the medical facility to the MEDIPRO
board, the Regional Director, Medical Inspector or authorized designee
concerning the review and analysis of the medical care provided.
(4) Minutes, memoranda or other documents generated by the Regional
Director's staff, the MEDIPRO board or the Medical Inspector as part of
the review of the claim, including analysis of the information
submitted.
(5) The conclusions and the findings of the review performed by the
medical facility, the MEDIPRO board, the Regional Director's staff or
the Medical Inspector, including that portion of TCIS which identifies
the results of the analysis of the case and the problems/errors
identified by peer review.
(e) All copies of TCIS records and documents will be maintained in a
secure file in accordance with the provisions of 17.508(c)(4) (i) and
(iii) and 17.527(g).
(f) The TCIS, including that portion that is made privileged and
confidential by 38 U.S.C. 5705, may be maintained by any element within
the Department of Veterans Affairs, Veterans Health Services and
Research Administraiton, including field stations, and the Office of
General Counsel and any office subject to the jurisdiction of the
General Counsel.
(Authority: 38 U.S.C. 5705)
(55 FR 13533, Apr. 11, 1990)
38 CFR 17.541 VA Health Professional Scholarship Program
Authority: 38 U.S.C. 7601-7655.
38 CFR 17.600 Purpose.
The purpose of 17.600 through 17.612 is to set forth the
requirements for the award of scholarships under the Department of
Veterans Affairs Health Professional Scholarship Program to students
receiving education or training in a direct or indirect health-care
services discipline to assist in providing an adequate supply of such
personnel for VA and for the Nation. Disciplines include nursing,
physical therapy, occupational therapy, and other specified direct or
indirect health-care disciplines if needed by VA.
(55 FR 40170, Oct. 2, 1990)
38 CFR 17.601 Definitions.
For the purpose of these regulations:
(a) Acceptable level of academic standing means the level at which a
student retains eligibility to continue in attendance in school under
the school's standards and practices in the course of study for which
the scholarship was awarded.
(b) Act means the Department of Veterans Affairs Health-Care
Amendments of 1980, Pub. L. 96-330, (38 U.S.C. 7601-7655), as amended
by Pub. L. 97-251, the Department of Veterans Affairs Health-Care
Programs Improvement and Extension Act of 1982, Pub. L. 99-576,
Veterans Benefits Improvement and Health Care Authorization Act of 1986,
and Pub. L. 100-322, the Veterans' Benefits and Services Act of 1988.
(Authority: Pub. L. 96-330; 38 U.S.C. 7601-7655, as amended by Pub.
L. 97-251; Pub. L. 99-576 and Pub. L. 100-322)
(c) Affiliation agreement means a Memorandum of Affiliation between a
Department of Veterans Affairs health care facility and a school of
medicine or osteopathy.
(d) Advanced clinical training means those programs of graduate
training in medicine including osteopathy which (1) lead to eligibility
for board certification or which provide other evidence of completion,
and (2) have been approved by the appropriate body as determined by the
Administrator.
(e) Secretary means the Secretary of Veterans Affairs or designee.
(f) Chief Medical Director means the Chief Medical Director of the
Veterans Health Administration (VSH&RA), or designee.
(g) Citizen of the United States means any person born, or lawfully
naturalized in the United States, subject to its jurisdiction and
protection, and owing allegiance thereto.
(h) Degree means a course of study leading to a doctor of medicine,
doctor of osteopathy, doctor of dentistry, doctor of optometry, doctor
of podiatry, or an associate degree, baccalaureate degree, or master's
degree in a nursing specialty needed by VA; or a baccalaureate or
master's degree in another direct or indirect health-care service
discipline needed by VA.
(i) Full-time student means an individual pursuing a course of study
leading to a degree who is enrolled for a sufficient number of credit
hours in any academic term to complete the course of study within not
more than the number of academic terms normally required by the school,
college or university. If an individual is enrolled in a school and is
pursuing a course of study which is designed to be completed in more
than 4 years, the individual will be considered a full-time student for
only the last 4 years of the course study.
(j) Other educational expenses means a reasonable amount of funds
determined by the Secretary to cover expenses such as books, and
laboratory equipment.
(k) Required educational equipment means educational equipment which
must be rented or purchased by all students pursuing a similar
curriculum in the same school.
(l) Required fees means those fees which are charged by the school to
all students pursuing a similar curriculum in the same school.
(m) Scholarship Program or Scholarship means the Department of
Veterans Affairs Health Professional Scholarship Program authorized by
section 216 of the Act.
(n) Participant or Scholarship Program Participant means an
individual whose application to the Scholarship Program has been
approved and whose contract has been accepted by the Secretary and who
has yet to complete the period of obligated service or otherwise satisfy
the obligation or financial liabilities of the Scholarship Contract.
(o) School means an academic institution which (1) provides training
leading to a degree in a direct or indirect health-care service
discipline needed by the Department of Veterans Affairs, and (2) which
is accredited by a body or bodies recognized for accreditation by the
Secretary.
(Authority: 38 U.S.C. 7602(a))
(p) School year means, for purposes of the stipend payment, all or
part of the 12-month period from September 1 through August 31 during
which a participant is enrolled in the school as a full-time student.
(q) State means one of the several States, Territories and
possessions of the United States, the District of Columbia and the
Commonwealth of Puerto Rico.
(r) Part-time student means an individual who is a Department of
Veterans Affairs employee permanently assigned to a Department of
Veterans Affairs health care facility who has been accepted for
enrollment or enrolled for study leading to a degree on a less than
full-time but not less than half-time basis.
(s) Department of Veterans Affairs employee means an individual
employed and permanently assigned to a VA health care facility.
(t) Degree completion date means the date on which a participant
completes all requirements of the degree program.
(Authority: 38 U.S.C. 7452)
(u) VA health care facility means Department of Veterans Affairs
medical centers, medical and regional office centers, domiciliaries,
independent outpatient clinics, and outpatient clinics in regional
offices.
(Authority: 38 U.S.C. 7633)
(Approved by the Office of Management and Budget under control number
2900-0352)
(47 FR 10810, Mar. 12, 1982, as amended at 48 FR 37399, Aug. 18,
1983; 54 FR 28674, July 7, 1989; 55 FR 40170, Oct. 2, 1990)
38 CFR 17.602 Eligibility.
(a) To be eligible for a scholarship under this program an applicant
must --
(1) Be accepted for enrollment or be enrolled as a full-time student
in an accredited school located in a State;
(2) Be pursuing a degree annually designated by the Secretary for
participation in the Scholarship Program;
(Authority: 38 U.S.C. 7602(a)(1), 7612(b)(1))
(3) Be in a discipline or program annually designated by the
Secretary for participation in the Scholarship Program;
(4) Be a citizen of the United States; and
(5) Submit an application to participate in the Scholarship Program
together with a signed contract.
(Authority: 38 U.S.C. 7602(a))
(b) To be eligible for a scholarship as a part-time student under
this program, an applicant must satisfy requirements of paragraph (a) of
this section and in addition must --
(1) Be a full-time VA employee permanently assigned to a VA health
care facility at the time of application and on the date when the
scholarship is awarded;
(2) Remain a VA employee for the duration of the scholarship award.
(Authority: 38 U.S.C. 7612(c)(3)(B))
(c) Any applicant who, at the time of application, owes a service
obligation to any other entity to perform service after completion of
the course of study is ineligible to receive a scholarship under the
Department of Veterans Affairs Scholarship Program.
(Authority: 38 U.S.C. 7602(b))
(Approved by the Office of Management and Budget under control number
2900-0352)
(47 FR 10810, Mar. 12, 1982, as amended at 48 FR 37399, Aug. 18,
1983; 54 FR 28674, July 7, 1989)
38 CFR 17.603 Availability of scholarships.
Scholarships will be awarded only when necessary to assist the
Department of Veterans Affairs in alleviating shortages or anticipated
shortages of personnel in particular health professions. The existence
of a shortage of personnel will be determined in accordance with
specific criteria for each health profession, promulgated by the Chief
Medical Director. The Secretary has the authority to determine the
number of scholarships to be awarded in a fiscal year, and the number
that will be awarded to full-time and part-time students.
(Authority: 38 U.S.C. 7612(b)(4) and 7603(b)(1))
(54 FR 28674, July 7, 1989)
38 CFR 17.604 Application for the scholarship program.
Each individual desiring a scholarship under this program must submit
an accurate and complete application in the form and at the time
prescribed by the Secretary. Included with the application will be a
signed written contract to accept payment of a scholarship and to serve
a period of obligated service (as defined in 17.607) if the application
is approved and if the contract is accepted by the Secretary.
(Authority: 38 U.S.C. 7612(c)(1)(B))
(47 FR 10810, Mar. 12, 1982)
38 CFR 17.605 Selection of participants.
(a) General. In deciding which Scholarship Program applications will
be approved by the Secretary, priority will be given to applicants
entering their final year of education or training and priority will be
given to applicants who previously received scholarship awards and who
meet the conditions of paragraph (d) of this section. Except for
continuation awards (see paragraph (d) of this section), applicants will
be evaluated under the criteria specified in paragraph (b) of this
section. A situation may occur in which there are a larger number of
equally qualified applicants than there are awards to be made. In such
cases, a random method may be used as the basis for selection. In
selecting participants to receive awards as part-time students, the
Secretary may, at the Secretary's discretion --
(Authority: 38 U.S.C. 7612(b)(5))
(1) Award scholarships geographically to part-time students so that
available scholarships may be distributed on a relatively equal basis to
students working throughout the VA health care system, and/or
(2) Award scholarships on the basis of retention needs within the VA
health care system.
(Authority: 38 U.S.C. 7603(d))
(b) Selection. In evaluating and selecting participants, the
Secretary will take into consideration those factors determined
necessary to assure effective participation in the Scholarship Program.
The factors may include, but not be limited to --
(1) Work/volunteer experience, including prior health care employment
and Department of Veterans Affairs employment;
(2) Faculty and employer recommendations;
(3) Academic performance; and
(4) Career goals.
(Authority: 38 U.S.C. 7633)
(c) Selection of part-time students. Factors in addition to those
specified in paragraph (b) of this section, which may be considered in
awarding scholarships to part-time students may include, but are not
limited to:
(1) Length of service of a VA employee in a health care facility;
(2) Honors and awards received from VA, and other sources;
(3) VA work performance evaluation;
(4) A recommendation for selection for a part-time scholarship from a
VA Medical District.
(Authority: 38 U.S.C. 7452(d)(1))
(d) Duration of scholarship award. Subject to the availability of
funds for the Scholarship Program, the Secretary will award a
participant a full-time scholarship under these regulations for a period
of from 1 to 4 school years and a participant of a part-time scholarship
for a period of 1 to 6 school years.
(Authority: 38 U.S.C. 7612(c)(1)(A) and 7614(3))
(e) Continuation awards. Subject to the availability of funds for
the Scholarship Program and selection, the Secretary will award a
continuation scholarship for completion of the degree for which the
scholarship was awarded if --
(1) The award will not extend the total period of Scholarship Program
support beyond 4 years for a full-time scholarship, and beyond 6 years
for a part-time scholarship; and
(2) The participant remains eligible for continued participation in
the Scholarship Program.
(Authority: 38 U.S.C. 7603(d))
(Approved by the Office of Management and Budget under control number
2900-0352)
(48 FR 37399, Aug. 18, 1983, as amended at 54 FR 28674, July 7, 1989)
38 CFR 17.606 Award procedures.
(a) Amount of scholarship. (1) A scholarship award will consist of
(i) tuition and required fees, (ii) other educational expenses,
including books and laboratory equipment, and (iii) except as provided
in paragraph (a)(2) of this section, a monthly stipend, for the duration
of the scholarship award. All such payments to scholarship participants
are exempt from Federal taxation.
(Authority: 38 U.S.C. 7636)
(2) No stipend may be paid to a participant who is a full-time VA
employee.
(3) The Secretary may determine the amount of the stipend paid to
participants, whether part-time students or full-time students, but that
amount may not exceed the maximum amount provided for in 38 U.S.C.
7613(b).
(4) In the case of a part-time student who is a part-time employee,
the maximum stipend, if more than a nominal stipend is paid, will be
reduced in accordance with the proportion that the number of credit
hours carried by such participant bears to the number of credit hours
required to be carried by a full-time student in the course of training
being pursued by the participant.
(5) A full stipend may be paid only for the months the part-time
student is attending classes.
(Authority: 38 U.S.C. 7614(2))
(6) The Secretary may make arrangements with the school in which the
participant is enrolled for the direct payment of the amount of tuition
and/or reasonable educational expenses on the participant's behalf.
(Authority: 38 U.S.C. 7613(c))
(7) A participant's eligibility for a stipend ends at the close of
the month in which degree requirements are met.
(b) Leave-of-absence, repeated course work. The Secretary may
suspend scholarship payments to or on behalf of a participant if the
school (1) approves a leave-of-absence for the participant for health,
personal, or other reasons, or (2) requires the participant to repeat
course work for which the Secretary previously has made payments under
the Scholarship Program. Additional costs relating to the repeated
course work will not be paid under this program. Any scholarship
payments suspended under this section will be resumed by the Secretary
upon notification by the school that the participant has returned from
the leave-of-absense or has satisfactorily completed the repeated course
work and is proceeding as a full-time student in the course of study for
which the scholarship was awarded.
(Authority: 38 U.S.C. 7633)
(48 FR 37400, Aug. 18, 1983, as amended at 55 FR 40170, Oct. 2, 1990)
38 CFR 17.607 Obligated service.
(a) General. Except as provided in paragraph (d) of this section,
each participant is obligated to provide service as a Department of
Veterans Affairs employee in full-time clinical practice in the
participant's discipline in an assignment or location determined by the
Secretary.
(Authority: 38 U.S.C. 7616(a))
(b) Beginning of service. (1) Except as provided in paragraph (b)(2)
of this section, a participant's obligated service shall begin on the
date the Secretary appoints the participant as a full-time VA employee
in the Department of Veterans Affairs Veterans Health Administration in
a position for which the degree program prepared the participant. The
Secretary shall appoint the participant to such position within 60 days
after the participant's degree completion date, or the date the
participant becomes licensed in a State to practice in the discipline
for which the degree program prepared the participant, whichever is
later. At least 60 days prior to the appointment date, the Secretary
shall notify the participant of the work assignment, its location, and
the date work must begin.
(2) Obligated service shall begin on the degree completion date for a
participant who, on that date, is a full-time VA employee working in a
capacity for which the degree program prepared the participant.
(Authority: 38 U.S.C. 7616 (b) and (c))
(c) Duration of service. The period of obligated service for a
participant who attended school as a full-time student shall be 1 year
for each school year or part thereof for which the participant received
a scholarship award under these regulations. The period of obligated
service for a participant who attended school as a part-time student
shall be reduced from that which a full-time student must serve in
accordance with the proportion that the number of credit hours carried
by the part-time student in any school year bears to the number of
credit hours required to be carried by a full-time student, whichever is
the greater, but shall be a minimum of 1 year of full-time employment.
(Authority: 38 U.S.C. 7612(c)(1)(B) and (3)(A))
(d) Location for service. The Secretary reserves the right to make
final decisions on location for service obligation. A participant who
received a scholarship as a full-time student must be willing to move to
another geographic location for service obligation. A participant who
received a scholarship as a part-time student may be allowed to serve
the period of obligated service at the health care facility where the
individual was assigned when the scholarship was authorized.
(Authority: 38 U.S.C. 7616(a))
(e) Creditability of advanced clinical training. No period of
advanced clinical training will be credited toward satisfying the period
of obligated service incurred under the Scholarship Program.
(Authority: 38 U.S.C. 7616(b)(3)(A)(ii)
(47 FR 10810, Mar. 12, 1982, as amended at 48 FR 37400, Aug. 18,
1983; 54 FR 28675, July 7, 1989)
38 CFR 17.608 Deferment of obligated service.
(a) Request for deferment. A participant receiving a degree from a
school of medicine, osteopathy, dentistry, optometry, or podiatry, may
request deferment of obligated service to complete an approved program
of advanced clinical training. The Secretary may defer the beginning
date of the obligated service to allow the participant to complete the
advanced clinical training program. The period of this deferment will
be the time designated for the specialty training.
(Authority: 38 U.S.C. 7616(a)(A)(i))
(b) Deferment requirements. Any participant whose period of
obligated service is deferred shall be required to take all or part of
the advanced clinical training in an accredited program in an
educational institution having an Affiliation Agreement with a
Department of Veterans Affairs health care facility, and such training
will be undertaken in a Department of Veterans Affairs health-care
facility.
(Authority: 38 U.S.C. 7616(b)(4))
(c) Additional service obligation. A participant who has requested
and received deferment for approved advanced clinical training may, at
the time of approval of such deferment and at the discretion of the
Secretary and upon the recommendation of the Chief Medical Director,
incur an additional period of obligated service --
(1) At the rate of one-half of a calendar year for each year of
approved clinical training (or a proportionate ratio thereof) if the
training is in a specialty determined to be necessary to meet health
care requirements of the Veterans Health Administration; Department of
Veterans Affairs; or
(2) At the rate of three-quarters of a calendar year for each year of
approved graduate training (or a proportionate ratio thereof) if the
training is in a medical specialty determined not to be necessary to
meet the health care requirements of the Veterans Health Administration.
Specialties necessary to meet the health care requirements of the
Veterans Health Administration will be prescribed periodically by the
Secretary when, and if, this provision for an additional period of
obligated service is to be used.
(Authority: 38 U.S.C. 7616(b)(4)(B))
(d) Altering deferment. Before altering the length or type of
approved advanced clinical training for which the period of obligated
service was deferred under paragraphs (a) or (b) of this section, the
participant must request and obtain the Secretary's written approval of
the alteration.
(Authority: 38 U.S.C. 7633)
(e) Beginning of service after deferment. Any participant whose
period of obligated service has been deferred under paragraph (a) or (b)
of this section must begin the obligated service effective on the date
of appointment under title 38 in full-time clinical practice in an
assignment or location in a Department of Veterans Affairs health care
facility as determined by the Secretary. The assignment will be made by
the Secretary within 120 days prior to or no later than 30 days
following the completion of the requested graduate training for which
the deferment was granted. Travel and relocation regulations will
apply.
(Authority: 38 U.S.C. 7616(b)(2))
(47 FR 10810, Mar. 12, 1982; 47 FR 13523, Mar. 31, 1982, as amended
at 54 FR 28675, July 7, 1989)
38 CFR 17.609 Pay during period of obligated service.
The initial appointment of physicians for obligated service will be
made in a grade commensurate with qualifications as determined in
section 7404(b)(1) of title 38 U.S.C. A physician serving a period of
obligated service is not eligible for incentive special pay during the
first three years of such obligated service. A physician may be paid
primary special pay at the discretion of the Secretary upon the
recommendation of the Chief Medical Director.
(Authority: Pub. L. 96-330, Sec. 202; 38 U.S.C. 7431-7440)
(47 FR 10810, Mar. 12, 1982, as amended at 54 FR 28676, July 7, 1989)
38 CFR 17.610 Failure to comply with terms and conditions of
participation.
(a) If a participant, other than one described in paragraph (b) of
this section fails to accept payment or instructs the school not to
accept payment of the scholarship provided by the Secretary, the
participant must, in addition to any service or other obligation
incurred under the contract, pay to the United States the amount of
$1,500 liquidated damages. Payment of this amount must be made within
90 days of the date on which the participant fails to accept payment of
the scholarship award or instructs the school not to accept payment.
(Authority: 38 U.S.C. 7617(a))
(b) If a participant:
(1) Fails to maintain an acceptable level of academic standing;
(2) Is dismissed from the school for disciplinary reasons;
(3) Voluntarily terminates the course of study or program for which
the scholarship was awarded including in the case of a full-time
student, a reduction of course load from full-time to part-time before
completing the course of study or program;
(4) Fails to become licensed to practice in the discipline for which
the degree program prepared the participant, if applicable, in a State
within 1 year from the date such person becomes eligible to apply for
State licensure; or
(Authority: 38 U.S.C. 7617(b)(4))
(5) Is a part-time student and fails to maintain employment in a
permanent assignment in a VA health care facility while enrolled in the
course of training being pursued; the participant must instead of
performing any service obligation, pay to the United States an amount
equal to all scholarship funds awarded under the written contract
executed in accordance with 17.602. Payment of this amount must be made
within 1 year from the date academic training terminates unless a longer
period is necessary to avoid hardship. No interest will be charged on
any part of this indebtedness.
(Authority: 38 U.S.C. 7617(b))
(c) Participants who breach their contracts by failing to begin or
complete their service obligation (for any reason) other than as
provided for under paragraph (b) of this section are liable to repay the
amount of all scholarship funds paid to them and to the school on their
behalf, plus interest, multiplied by three, minus months of service
obligation satisfied, as determined by the following formula:
in which:
'A' is the amount the United States is entitled to recover;
' ' is the sum of the amounts paid to or on behalf of the applicant
and the interest on such amounts which would be payable if, at the time
the amounts were paid, they were loans bearing interest at the maximum
legal prevailing rate, as determined by the Treasurer of the United
States;
't' is the total number of months in the applicant's period of
obligated service; and
's' is the number of months of the period of obligated service served
by the participant.
The amount which the United States is entitled to recover shall be
paid within 1 year of the date on which the applicant failed to begin or
complete the period of obligated service, as determined by the
Secretary.
(Authority: 38 U.S.C. 7617(c)(1)(2))
(Approved by the Office of Management and Budget under control number
2900-0352)
(47 FR 10810, Mar. 12, 1982; 47 FR 13523, Mar. 31, 1982, as amended
at 48 FR 37400, Aug. 18, 1983; 54 FR 28676, July 7, 1989; 54 FR 46611,
Nov. 6, 1989)
38 CFR 17.611 Bankruptcy.
Any payment obligation incurred may not be discharged in bankruptcy
under title 11 U.S.C. until 5 years after the date on which the payment
obligation is due.
(Authority: 38 U.S.C. 7634(c))
(47 FR 10810, Mar. 12, 1982)
38 CFR 17.612 Cancellation, waiver, or suspension of obligation.
(a) Any obligation of a participant for service or payment will be
canceled upon the death of the participant.
(Authority: 38 U.S.C. 7634(a))
(b)(1) A participant may seek a waiver or suspension of the service
or payment obligation incurred under this program by written request to
the Secretary setting forth the basis, circumstances, and causes which
support the requested action. The Secretary may approve an initial
request for a suspension for a period of up to 1 year. A renewal of
this suspension may also be granted.
(2) The Secretary may waive or suspend any service or payment
obligation incurred by a participant whenever compliance by the
participant (i) is impossible, due to circumstances beyond the control
of the participant or (ii) whenever the Secretary concludes that a
waiver or suspension of compliance would be in the best interest of the
Department of Veterans Affairs.
(Authority: 38 U.S.C. 7634(b))
(c) Compliance by a participant with a service or payment obligation
will be considered impossible due to circumstances beyond the control of
the participant if the Secretary determines, on the basis of such
information and documentation as may be required, that the participant
suffers from a physical or mental disability resulting in permanent
inability to perform the service or other activities which would be
necessary to comply with the obligation.
(Authority: 38 U.S.C. 7634(b))
(d) Waivers or suspensions of service or payment obligations, when
not related to paragraph (c) of this section, and when considered in the
best interest of the Department of Veterans Affairs, will be determined
by the Secretary on an individual basis.
(Authority: 38 U.S.C. 7634(b))
(47 FR 10810, Mar. 12, 1982)
38 CFR 17.612 FINDING AIDS
A list of current CFR titles, subtitles, chapters, subchapters and
parts and an alphabetical list of agencies publishing in the CFR are
included in the CFR Index and Finding Aids volume to the Code of Federal
Regulations which is published separately and revised annually.
Material Approved for Incorporation by Reference
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
Title 38 -- Pensions, Bonuses, and Veterans' Relief
Material Approved for Incorporation by Reference
Material Approved for Incorporation by Reference
The Director of the Federal Register has approved under 5 U.S.C.
552(a) and 1 CFR Part 51 the incorporation by reference of the following
publications. This list contains only those incorporations by reference
effective as of the revision date of this volume. Incorporations by
reference found within a regulation are effective upon the effective
date of that regulation. For more information on incorporation by
reference, see the preliminary pages of this volume.
38 CFR 17.612 38 CFR CHAPTER I (PARTS 1 TO 17)
VETERANS ADMINISTRATION
38 CFR
National Fire Protection Association
Batterymarch Park, Quincy, Mass. 02269
NFPA 101, Life Safety Code, 1981 ed. 17.53b; 17.53c
NFPA 101, Life Safety Code, 1985 (Feb. 7, 1985) 17.51e(c)(2)
NFPA 101 Life Safety Code, 1988 ed., including NFPA 101M, Alternative
Approaches to Life Safety, 1987 ed. 17.51j(a)(2); 17.183(c)(4)
Chap.
38 CFR 17.612 Table of CFR Titles and Chapters
38 CFR 17.612 Title 1 -- General Provisions
I Administrative Committee of the Federal Register (Parts 1 -- 49)
II Office of the Federal Register (Parts 50 -- 299)
III Administrative Conference of the United States (Parts 300 -- 399)
IV Miscellaneous Agencies (Parts 400 -- 500)
38 CFR 17.612 Title 2 -- (Reserved)
38 CFR 17.612 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
38 CFR 17.612 Title 4 -- Accounts
I General Accounting Office (Parts 1 -- 99)
II Federal Claims Collection Standards (General Accounting Office --
Department of Justice) (Parts 100 -- 299)
38 CFR 17.612 Title 5 -- Administrative Personnel
I Office of Personnel Management (Parts 1 -- 1199)
II Merit Systems Protection Board (Parts 1200 -- 1299)
III Office of Management and Budget (Parts 1300 -- 1399)
IV Advisory Committee on Federal Pay (Parts 1400 -- 1499)
V The International Organizations Employees Loyalty Board (Parts 1500
-- 1599)
VI Federal Retirement Thrift Investment Board (Parts 1600 -- 1699)
VII Advisory Commission on Intergovernmental Relations (Parts 1700 --
1799)
VIII Office of Special Counsel (Parts 1800 -- 1899)
IX Appalachian Regional Commission (Parts 1900 -- 1999)
XI United States Soldiers' and Airmen's Home (Parts 2100 -- 2199)
XIV Federal Labor Relations Authority, General Counsel of the Federal
Labor Relations Authority and Federal Service Impasses Panel (Parts 2400
-- 2499)
XV Office of Administration, Executive Office of the President (Parts
2500 -- 2599)
XVI Office of Government Ethics (Parts 2600 -- 2699)
XLVII Federal Trade Commission (Part 5701)
38 CFR 17.612 Title 6 -- (Reserved)
38 CFR 17.612 Title 7 -- Agriculture
Subtitle A -- Office of the Secretary of Agriculture (Parts 0 -- 26)
Subtitle B -- Regulations of the Department of Agriculture
I Agricultural Marketing Service (Standards, Inspections, Marketing
Practices), Department of Agriculture (Parts 27 -- 209)
II Food and Nutrition Service, Department of Agriculture (Parts 210
-- 299)
III Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 300 -- 399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400 -- 499)
V Agricultural Research Service, Department of Agriculture (Parts 500
-- 599)
VI Soil Conservation Service, Department of Agriculture (Parts 600 --
699)
VII Agricultural Stabilization and Conservation Service (Agricultural
Adjustment), Department of Agriculture (Parts 700 -- 799)
VIII Federal Grain Inspection Service, Department of Agriculture
(Parts 800 -- 899)
IX Agricultural Marketing Service (Marketing Agreements and Orders;
Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900 -- 999)
X Agricultural Marketing Service (Marketing Agreements and Orders;
Milk), Department of Agriculture (Parts 1000 -- 1199)
XI Agricultural Marketing Service (Marketing Agreements and Orders;
Miscellaneous Commodities), Department of Agriculture (Parts 1200 --
1299)
XIV Commodity Credit Corporation, Department of Agriculture (Parts
1400 -- 1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500 -- 1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600 --
1699)
XVII Rural Electrification Administration, Department of Agriculture
(Parts 1700 -- 1799)
XVIII Farmers Home Administration, Department of Agriculture (Parts
1800 -- 2099)
XXI Foreign Economic Development Service, Department of Agriculture
(Parts 2100 -- 2199)
XXII Office of International Cooperation and Development, Department
of Agriculture (Parts 2200 -- 2299)
XXV Office of the General Sales Manager, Department of Agriculture
(Parts 2500 -- 2599)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600 -- 2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700 -- 2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800 --
2899)
XXIX Office of Energy, Department of Agriculture (Parts 2900 -- 2999)
XXX Office of Finance and Management, Department of Agriculture
(Parts 3000 -- 3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100 -- 3199)
XXXII Office of Grants and Program Systems, Department of Agriculture
(Parts 3200 -- 3299)
XXXIII Office of Transportation, Department of Agriculture (Parts
3300 -- 3399)
XXXIV Cooperative State Research Service, Department of Agriculture
(Parts 3400 -- 3499)
XXXVI National Agricultural Statistics Service, Department of
Agriculture (Parts 3600 -- 3699)
XXXVII Economic Research Service, Department of Agriculture (Parts
3700 -- 3799)
XXXVIII World Agricultural Outlook Board, Department of Agriculture
(Parts 3800 -- 3899)
XXXIX Economic Analysis Staff, Department of Agriculture (Parts 3900
-- 3999)
XL Economics Management Staff, Department of Agriculture (Parts 4000
-- 4099)
XLI National Agricultural Library, Department of Agriculture (Part
4100)
XLII Rural Development Administration, Department of Agriculture
(Part 4284 )
38 CFR 17.612 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
38 CFR 17.612 Title 9 -- Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 1 -- 199)
II Packers and Stockyards Administration, Department of Agriculture
(Parts 200 -- 299)
III Food Safety and Inspection Service, Meat and Poultry Inspection,
Department of Agriculture (Parts 300 -- 399)
38 CFR 17.612 Title 10 -- Energy
I Nuclear Regulatory Commission (Parts 0 -- 199)
II Department of Energy (Parts 200 -- 699)
III Department of Energy (Parts 700 -- 999)
X Department of Energy (General Provisions) (Parts 1000 -- 1099)
XV Office of the Federal Inspector for the Alaska Natural Gas
Transportation System (Parts 1500 -- 1599)
XVII Defense Nuclear Facilities Safety Board (Parts 1700 -- 1799)
38 CFR 17.612 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
38 CFR 17.612 Title 12 -- Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1 --
199)
II Federal Reserve System (Parts 200 -- 299)
III Federal Deposit Insurance Corporation (Parts 300 -- 399)
IV Export-Import Bank of the United States (Parts 400 -- 499)
V Office of Thrift Supervision, Department of The Treasury (Parts 500
-- 599)
VI Farm Credit Administration (Parts 600 -- 699)
VII National Credit Union Administration (Parts 700 -- 799)
VIII Federal Financing Bank (Parts 800 -- 899)
IX Federal Housing Finance Board (Parts 900 -- 999)
XI Federal Financial Institutions Examination Council (Parts 1100 --
1199)
XIV Farm Credit System Insurance Corporation (Parts 1400 -- 1499)
XV Thrift Depositor Protection Oversight Board (Parts 1500 -- 1599)
XVI Resolution Trust Corporation (Parts 1600 -- 1699)
38 CFR 17.612 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
38 CFR 17.612 Title 14 -- Aeronautics and Space
I Federal Aviation Administration, Department of Transportation
(Parts 1 -- 199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200 -- 399)
III Office of Commercial Space Transportation, Department of
Transportation (Parts 400 -- 499)
V National Aeronautics and Space Administration (Parts 1200 -- 1299)
38 CFR 17.612 Title 15 -- Commerce and Foreign Trade
Subtitle A -- Office of the Secretary of Commerce (Parts 0 -- 29)
Subtitle B -- Regulations Relating to Commerce and Foreign Trade
I Bureau of the Census, Department of Commerce (Parts 30 -- 199)
II National Institute of Standards and Technology, Department of
Commerce (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
IV Foreign-Trade Zones Board (Parts 400 -- 499)
VII Bureau of Export Administration, Department of Commerce (Parts
700 -- 799)
VIII Bureau of Economic Analysis, Department of Commerce (Parts 800
-- 899)
IX National Oceanic and Atmospheric Administration, Department of
Commerce (Parts 900 -- 999)
XI Technology Administration, Department of Commerce (Parts 1100 --
1199)
XII United States Travel and Tourism Administration, Department of
Commerce (Parts 1200 -- 1299)
XIII East-West Foreign Trade Board (Parts 1300 -- 1399)
XIV Minority Business Development Agency (Parts 1400 -- 1499)
Subtitle C -- Regulations Relating to Foreign Trade Agreements
XX Office of the United States Trade Representative (Parts 2000 --
2099)
Subtitle D -- Regulations Relating to Telecommunications and
Information
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300 -- 2399)
38 CFR 17.612 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
38 CFR 17.612 Title 17 -- Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1 -- 199)
II Securities and Exchange Commission (Parts 200 -- 399)
IV Department of the Treasury (Parts 400 -- 499)
38 CFR 17.612 Title 18 -- Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1
-- 399)
III Delaware River Basin Commission (Parts 400 -- 499)
VI Water Resources Council (Parts 700 -- 799)
VIII Susquehanna River Basin Commission (Parts 800 -- 899)
XIII Tennessee Valley Authority (Parts 1300 -- 1399)
38 CFR 17.612 Title 19 -- Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1
-- 199)
II United States International Trade Commission (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
38 CFR 17.612 Title 20 -- Employees' Benefits
I Office of Workers' Compensation Programs, Department of Labor
(Parts 1 -- 199)
II Railroad Retirement Board (Parts 200 -- 399)
III Social Security Administration, Department of Health and Human
Services (Parts 400 -- 499)
IV Employees' Compensation Appeals Board, Department of Labor (Parts
500 -- 599)
V Employment and Training Administration, Department of Labor (Parts
600 -- 699)
VI Employment Standards Administration, Department of Labor (Parts
700 -- 799)
VII Benefits Review Board, Department of Labor (Parts 800 -- 899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900 -- 999)
IX Office of the Assistant Secretary for Veterans' Employment and
Training, Department of Labor (Parts 1000 -- 1099)
38 CFR 17.612 Title 21 -- Food and Drugs
I Food and Drug Administration, Department of Health and Human
Services (Parts 1 -- 1299)
II Drug Enforcement Administration, Department of Justice (Parts 1300
-- 1399)
III Office of National Drug Control Policy (Parts 1400 -- 1499)
38 CFR 17.612 Title 22 -- Foreign Relations
I Department of State (Parts 1 -- 199)
II Agency for International Development, International Development
Cooperation Agency (Parts 200 -- 299)
III Peace Corps (Parts 300 -- 399)
IV International Joint Commission, United States and Canada (Parts
400 -- 499)
V United States Information Agency (Parts 500 -- 599)
VI United States Arms Control and Disarmament Agency (Parts 600 --
699)
VII Overseas Private Investment Corporation, International
Development Cooperation Agency (Parts 700 -- 799)
IX Foreign Service Grievance Board Regulations (Parts 900 -- 999)
X Inter-American Foundation (Parts 1000 -- 1099)
XI International Boundary and Water Commission, United States and
Mexico, United States Section (Parts 1100 -- 1199)
XII United States International Development Cooperation Agency (Parts
1200 -- 1299)
XIII Board for International Broadcasting (Parts 1300 -- 1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority;
and the Foreign Service Impasse Disputes Panel (Parts 1400 -- 1499)
XV African Development Foundation (Parts 1500 -- 1599)
XVI Japan-United States Friendship Commission (Parts 1600 -- 1699)
38 CFR 17.612 Title 23 -- Highways
I Federal Highway Administration, Department of Transportation (Parts
1 -- 999)
II National Highway Traffic Safety Administration and Federal Highway
Administration, Department of Transportation (Parts 1200 -- 1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300 -- 1399)
38 CFR 17.612 Title 24 -- Housing and Urban Development
Subtitle A -- Office of the Secretary, Department of Housing and
Urban Development (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Housing and Urban Development
I Office of Assistant Secretary for Equal Opportunity, Department of
Housing and Urban Development (Parts 100 -- 199)
II Office of Assistant Secretary for Housing-Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 200 --
299)
III Government National Mortgage Association, Department of Housing
and Urban Development (Parts 300 -- 399)
V Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 500 --
599)
VI Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 600 --
699)
VII Office of the Secretary, Department of Housing and Urban
Development (Section 8 Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700 -- 799)
VIII Office of the Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Section 8
Housing Assistance Programs and Section 202 Direct Loan Program) (Parts
800 -- 899)
IX Office of Assistant Secretary for Public and Indian Housing,
Department of Housing and Urban Development (Parts 900 -- 999)
X Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Interstate
Land Sales Registration Program) (Parts 1700 -- 1799)
XI Solar Energy and Energy Conservation Bank, Department of Housing
and Urban Development (Parts 1800 -- 1899)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000 -- 2099)
XV Mortgage Insurance and Loan Programs under the Emergency
Homeowners' Relief Act, Department of Housing and Urban Development
(Parts 2700 -- 2799)
XX Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 3200 --
3699)
XXV Neighborhood Reinvestment Corporation (Parts 4100 -- 4199)
38 CFR 17.612 Title 25 -- Indians
I Bureau of Indian Affairs, Department of the Interior (Parts 1 --
299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300 -- 399)
III National Indian Gaming Commission (Parts 500 -- 599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700 -- 799)
38 CFR 17.612 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
38 CFR 17.612 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
38 CFR 17.612 Title 28 -- Judicial Administration
I Department of Justice (Parts 0 -- 199)
III Federal Prison Industries, Inc., Department of Justice (Parts 300
-- 399)
V Bureau of Prisons, Department of Justice (Parts 500 -- 599)
VI Offices of Independent Counsel, Department of Justice (Parts 600
-- 699)
VII Office of Independent Counsel (Parts 700 -- 799)
38 CFR 17.612 Title 29 -- Labor
Subtitle A -- Office of the Secretary of Labor (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Labor
I National Labor Relations Board (Parts 100 -- 199)
II Bureau of Labor-Management Relations and Cooperative Programs,
Department of Labor (Parts 200 -- 299)
III National Railroad Adjustment Board (Parts 300 -- 399)
IV Office of Labor-Management Standards, Department of Labor (Parts
400 -- 499)
V Wage and Hour Division, Department of Labor (Parts 500 -- 899)
IX Construction Industry Collective Bargaining Commission (Parts 900
-- 999)
X National Mediation Board (Parts 1200 -- 1299)
XII Federal Mediation and Conciliation Service (Parts 1400 -- 1499)
XIV Equal Employment Opportunity Commission (Parts 1600 -- 1699)
XVII Occupational Safety and Health Administration, Department of
Labor (Parts 1900 -- 1999)
XX Occupational Safety and Health Review Commission (Parts 2200 --
2499)
XXV Pension and Welfare Benefits Administration, Department of Labor
(Parts 2500 -- 2599)
XXVI Pension Benefit Guaranty Corporation (Parts 2600 -- 2699)
XXVII Federal Mine Safety and Health Review Commission (Parts 2700 --
2799)
38 CFR 17.612 Title 30 -- Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1
-- 199)
II Minerals Management Service, Department of the Interior (Parts 200
-- 299)
III Board of Surface Mining and Reclamation Appeals, Department of
the Interior (Parts 300 -- 399)
IV Geological Survey, Department of the Interior (Parts 400 -- 499)
VI Bureau of Mines, Department of the Interior (Parts 600 -- 699)
VII Office of Surface Mining Reclamation and Enforcement, Department
of the Interior (Parts 700 -- 999)
38 CFR 17.612 Title 31 -- Money and Finance: Treasury
Subtitle A -- Office of the Secretary of the Treasury (Parts 0 -- 50)
Subtitle B -- Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts 51 -- 199)
II Fiscal Service, Department of the Treasury (Parts 200 -- 399)
IV Secret Service, Department of the Treasury (Parts 400 -- 499)
V Office of Foreign Assets Control, Department of the Treasury (Parts
500 -- 599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600 -- 699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700 -- 799)
VIII Office of International Investment, Department of the Treasury
(Parts 800 -- 899)
38 CFR 17.612 Title 32 -- National Defense
Subtitle A -- Department of Defense
I Office of the Secretary of Defense (Parts 1 -- 399)
V Department of the Army (Parts 400 -- 699)
VI Department of the Navy (Parts 700 -- 799)
VII Department of the Air Force (Parts 800 -- 1099)
Subtitle B -- Other Regulations Relating to National Defense
XII Defense Logistics Agency (Parts 1200 -- 1299)
XVI Selective Service System (Parts 1600 -- 1699)
XIX Central Intelligence Agency (Parts 1900 -- 1999)
XX Information Security Oversight Office (Parts 2000 -- 2099)
XXI National Security Council (Parts 2100 -- 2199)
XXIV Office of Science and Technology Policy (Parts 2400 -- 2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700 -- 2799)
XXVIII Office of the Vice President of the United States (Parts 2800
-- 2899)
XXIX Presidential Commission on the Assignment of Women in the Armed
Forces (Part 2900)
38 CFR 17.612 Title 33 -- Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Corps of Engineers, Department of the Army (Parts 200 -- 399)
IV Saint Lawrence Seaway Development Corporation, Department of
Transportation (Parts 400 -- 499)
38 CFR 17.612 Title 34 -- Education
Subtitle A -- Office of the Secretary, Department of Education (Parts
1 -- 99)
Subtitle B -- Regulations of the Offices of the Department of
Education
I Office for Civil Rights, Department of Education (Parts 100 -- 199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200 -- 299)
III Office of Special Education and Rehabilitative Services,
Department of Education (Parts 300 -- 399)
IV Office of Vocational and Adult Education, Department of Education
(Parts 400 -- 499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500 -- 599)
VI Office of Postsecondary Education, Department of Education (Parts
600 -- 699)
VII Office of Educational Research and Improvement, Department of
Education (Parts 700 -- 799)
38 CFR 17.612 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
38 CFR 17.612 Title 36 -- Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1 -- 199)
II Forest Service, Department of Agriculture (Parts 200 -- 299)
III Corps of Engineers, Department of the Army (Parts 300 -- 399)
IV American Battle Monuments Commission (Parts 400 -- 499)
V Smithsonian Institution (Parts 500 -- 599)
VII Library of Congress (Parts 700 -- 799)
VIII Advisory Council on Historic Preservation (Parts 800 -- 899)
IX Pennsylvania Avenue Development Corporation (Parts 900 -- 999)
XI Architectural and Transportation Barriers Compliance Board (Parts
1100 -- 1199)
XII National Archives and Records Administration (Parts 1200 -- 1299)
38 CFR 17.612 Title 37 -- Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts 1 --
199)
II Copyright Office, Library of Congress (Parts 200 -- 299)
III Copyright Royalty Tribunal (Parts 300 -- 399)
IV Assistant Secretary for Technology Policy, Department of Commerce
(Parts 400 -- 499)
V Under Secretary for Technology, Department of Commerce (Parts 500
-- 599)
38 CFR 17.612 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
38 CFR 17.612 Title 39 -- Postal Service
I United States Postal Service (Parts 1 -- 999)
III Postal Rate Commission (Parts 3000 -- 3099)
38 CFR 17.612 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500 -- 1599)
38 CFR 17.612 Title 41 -- Public Contracts and Property Management
Subtitle B -- Other Provisions Relating to Public Contracts
50 Public Contracts, Department of Labor (Parts 50-1 -- 50-999)
51 Committee for Purchase from the Blind and Other Severely
Handicapped (Parts 51-1 -- 51-99)
60 Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Parts 60-1 -- 60-999)
61 Office of the Assistant Secretary for Veterans Employment and
Training, Department of Labor (Parts 61-1 -- 61-999)
Subtitle C -- Federal Property Management Regulations System
101 Federal Property Management Regulations (Parts 101-1 -- 101-99)
105 General Services Administration (Parts 105-1 -- 105-999)
109 Department of Energy Property Management Regulations (Parts 109-1
-- 109-99)
114 Department of the Interior (Parts 114-1 -- 114-99)
115 Environmental Protection Agency (Parts 115-1 -- 115-99)
128 Department of Justice (Parts 128-1 -- 128-99)
132 Department of the Air Force (Parts 132-1 -- 132-99)
Subtitle D -- Other Provisions Relating to Property Management
(Reserved)
Subtitle E -- Federal Information Resources Management Regulations
System
201 Federal Information Resources Management Regulation (Parts 201-1
-- 201-99)
Subtitle F -- Federal Travel Regulation System
301 Travel Allowances (Parts 301-1 -- 301-99)
302 Relocation Allowances (Parts 302-1 -- 302-99)
303 Payment of Expenses Connected with the Death of Certain Employees
(Parts 303-1 -- 303-2)
304 Payment from a non-Federal source for travel expenses (Parts
304-1 -- 304-99)
38 CFR 17.612 Title 42 -- Public Health
I Public Health Service, Department of Health and Human Services
(Parts 1 -- 199)
IV Health Care Financing Administration, Department of Health and
Human Services (Parts 400 -- 499)
V Office of Inspector General-Health Care, Department of Health and
Human Services (Parts 1000 -- 1999)
38 CFR 17.612 Title 43 -- Public Lands: Interior
Subtitle A -- Office of the Secretary of the Interior (Parts 1 --
199)
Subtitle B -- Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior (Parts 200 --
499)
II Bureau of Land Management, Department of the Interior (Parts 1000
-- 9999)
38 CFR 17.612 Title 44 -- Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0 -- 399)
IV Department of Commerce and Department of Transportation (Parts 400
-- 499)
38 CFR 17.612 Title 45 -- Public Welfare
Subtitle A -- Department of Health and Human Services, General
Administration (Parts 1 -- 199)
Subtitle B -- Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs), Administration
for Children and Families, Department of Health and Human Services
(Parts 200 -- 299)
III Office of Child Support Enforcement (Child Support Enforcement
Program), Administration for Children and Families, Department of Health
and Human Services (Parts 300 -- 399)
IV Office of Refugee Resettlement, Administration for Children and
Families Department of Health and Human Services (Parts 400 -- 499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500 -- 599)
VI National Science Foundation (Parts 600 -- 699)
VII Commission on Civil Rights (Parts 700 -- 799)
VIII Office of Personnel Management (Parts 800 -- 899)
X Office of Community Services, Administration for Children and
Families, Department of Health and Human Services (Parts 1000 -- 1099)
XI National Foundation on the Arts and the Humanities (Parts 1100 --
1199)
XII ACTION (Parts 1200 -- 1299)
XIII Office of Human Development Services, Department of Health and
Human Services (Parts 1300 -- 1399)
XVI Legal Services Corporation (Parts 1600 -- 1699)
XVII National Commission on Libraries and Information Science (Parts
1700 -- 1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800 -- 1899)
XXI Commission on Fine Arts (Parts 2100 -- 2199)
XXII Christopher Columbus Quincentenary Jubilee Commission (Parts
2200 -- 2299)
XXIV James Madison Memorial Fellowship Foundation (Parts 2400 --
2499)
XXV Commission on National and Community Service (Parts 2500 -- 2506)
38 CFR 17.612 Title 46 -- Shipping
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Maritime Administration, Department of Transportation (Parts 200
-- 399)
III Coast Guard (Great Lakes Pilotage), Department of Transportation
(Parts 400 -- 499)
IV Federal Maritime Commission (Parts 500 -- 599)
38 CFR 17.612 Title 47 -- Telecommunication
I Federal Communications Commission (Parts 0 -- 199)
II Office of Science and Technology Policy and National Security
Council (Parts 200 -- 299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300 -- 399)
38 CFR 17.612 Title 48 -- Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1 -- 99)
2 Department of Defense (Parts 200 -- 299)
3 Department of Health and Human Services (Parts 300 -- 399)
4 Department of Agriculture (Parts 400 -- 499)
5 General Services Administration (Parts 500 -- 599)
6 Department of State (Parts 600 -- 699)
7 Agency for International Development (Parts 700 -- 799)
8 Department of Veterans Affairs (Parts 800 -- 899)
9 Department of Energy (Parts 900 -- 999)
10 Department of the Treasury (Parts 1000 -- 1099)
12 Department of Transportation (Parts 1200 -- 1299)
13 Department of Commerce (Parts 1300 -- 1399)
14 Department of the Interior (Parts 1400 -- 1499)
15 Environmental Protection Agency (Parts 1500 -- 1599)
16 Office of Personnel Management Federal Employees Health Benefits
Acquisition Regulation (Parts 1600 -- 1699)
17 Office of Personnel Management (Parts 1700 -- 1799)
18 National Aeronautics and Space Administration (Parts 1800 -- 1899)
19 United States Information Agency (Parts 1900 -- 1999)
20 Nuclear Regulatory Commission (Parts 2000 -- 2099)
22 Small Business Administration (Parts 2200 -- 2299)
24 Department of Housing and Urban Development (Parts 2400 -- 2499)
25 National Science Foundation (Parts 2500 -- 2599)
28 Department of Justice (Parts 2800 -- 2899)
29 Department of Labor (Parts 2900 -- 2999)
34 Department of Education Acquisition Regulation (Parts 3400 --
3499)
35 Panama Canal Commission (Parts 3500 -- 3599)
44 Federal Emergency Management Agency (Parts 4400 -- 4499)
51 Department of the Army Acquisition Regulations (Parts 5100 --
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200 --
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300 -- 5399)
57 African Development Foundation (Parts 5700 -- 5799)
61 General Services Administration Board of Contract Appeals (Parts
6100 -- 6199)
63 Department of Transportation Board of Contract Appeals (Parts 6300
-- 6399)
99 Cost Accounting Standards Board, Office of Federal Procurement
Policy, Office of Management and Budget (Parts 9900 -- 9999)
38 CFR 17.612 Title 49 -- Transportation
Subtitle A -- Office of the Secretary of Transportation (Parts 1 --
99)
Subtitle B -- Other Regulations Relating to Transportation
I Research and Special Programs Administration, Department of
Transportation (Parts 100 -- 199)
II Federal Railroad Administration, Department of Transportation
(Parts 200 -- 299)
III Federal Highway Administration, Department of Transportation
(Parts 300 -- 399)
IV Coast Guard, Department of Transportation (Parts 400 -- 499)
V National Highway Traffic Safety Administration, Department of
Transportation (Parts 500 -- 599)
VI Federal Transit Administration, Department of Transportation
(Parts 600 -- 699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts 700 --
799)
VIII National Transportation Safety Board (Parts 800 -- 899)
X Interstate Commerce Commission (Parts 1000 -- 1399)
38 CFR 17.612 Title 50 -- Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Interior
(Parts 1 -- 199)
II National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 200 -- 299)
III International Regulatory Agencies (Fishing and Whaling) (Parts
300 -- 399)
IV Joint Regulations (United States Fish and Wildlife Service,
Department of the Interior and National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations (Parts 400 -- 499)
V Marine Mammal Commission (Parts 500 -- 599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 600 -- 699)
38 CFR 17.612 CFR Index and Finding Aids Subject/Agency Index
List of Agency Prepared Indexes Parallel Tables of Statutory Authorities
and Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts
38 CFR 17.612 Alphabetical List of Agencies Appearing in the CFR
CFR Title, Subtitle or
Agency
Chapter
ACTION 45, XII
Administrative Committee of the Federal Register 1, I
Administrative Conference of the United States 1, III
Advisory Commission on Intergovernmental Relations 5, VII
Advisory Committee on Federal Pay 5, IV
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV; 48, 57
Agency for International Development 22, II; 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Agriculture Department
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Commodity Credit Corporation 7, XIV
Cooperative State Research Service 7, XXXIV
Economic Analysis Staff 7, XXXIX
Economic Research Service 7, XXXVII
Economics Management Staff 7, XL
Energy, Office of 7, XXIX
Environmental Quality, Office of 7, XXXI
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Federal Grain Inspection Service 7, VIII
Finance and Management, Office of 7, XXX
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Economic Development Service 7, XXI
Forest Service 36, II
General Sales Manager, Office of 7, XXV
Grants and Program Systems, Office of 7, XXXII
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
International Cooperation and Development Office 7, XXII
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Operations Office 7, XXVIII
Packers and Stockyards Administration 9, II
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Secretary of Agriculture, Office of 7, Subtitle A
Soil Conservation Service 7, VI
Transportation, Office of 7, XXXIII
World Agriculture Outlook Board 7, XXXVIII
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Federal Acquisition Regulation Supplement 48, 53
Alaska Natural Gas Transportation System, Office of the Federal
Inspector 10, XV
Alcohol, Tobacco and Firearms, Bureau of 27, I
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers Compliance Board 36, XI
Arms Control and Disarmament Agency, U.S. 22, VI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Assistant Secretary for Technology Policy, Department of Commerce 37,
IV
Benefits Review Board 20, VII
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind and Other Severely Handicapped, Committee for Purchase from 41,
51
Board for International Broadcasting 22, XIII
Budget, Office of Management and 5, III
Census Bureau 15, I
Central Intelligence Agency 32, XIX
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee Commission 45, XXII
Civil Rights Commission 45, VII
Civil Rights, Office for (Education Department) 34, I
Claims Collection Standards, Federal 4, II
Coast Guard 33, I; 46, I, III; 49, IV
Commerce Department 44, IV
Census Bureau 15, I
Assistant Secretary for Technology Policy 37, IV
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Endangered Species Committee 50, IV
Export Administration Bureau 15, VII
Federal Acquisition Regulation 48, 13
Fishery Conservation and Management 50, VI
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Telecommunications and Information Administration 15, XXIII;
47, III
Patent and Trademark Office 37, I
Productivity, Technology and Innovation, Assistant Secretary for 37,
IV
Secretary of Commerce, Office of 15, Subtitle A
Technology Administration 15, XI
Under Secretary for Technology 37, V
United States Travel and Tourism Administration 15, XII
Commercial Space Transportation, Office of, Department of
Transportation 14, III
Commission on National and Community Service 45, XXV
Committee for Purchase from People who are Blind or Severely Disabled
41, 51
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 17, I
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 16, II
Cooperative State Research Service 7, XXXIV
Copyright Office 37, II
Copyright Royalty Tribunal 37, III
Cost Accounting Standards Board, Office of Federal Procurement Policy
48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Department 32, Subtitle A
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Army Department 32, V; 33, II; 36, III, 48, 51
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 2
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Logistics Agency 32, XII
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary (Commerce) 37, V
Economic Analysis, Bureau of 15, VIII
Economic Analysis Staff, Department of Agriculture 7, XXXIX
Economic Development Administration 13, III
Economics Management Staff 7, XL
Economic Research Service 7, XXXVII
Education, Department of
Bilingual Education and Minority Languages Affairs, Office of 34, V
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board, International Organizations 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 10, II, III, X; 41, 109
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 18, I
Energy, Office of, Department of Agriculture 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 40, I; 41, 115; 48, 15
Environmental Quality, Office of (Agriculture Department) 7, XXXI
Equal Employment Opportunity Commission 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Export Administration Bureau 15, VII
Export-Import Bank of the United States 12, IV
Family Assistance, Office of 45, II
Farm Credit Administration 12, VI
Farm Credit System Insurance Corporation 12, XIV
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Federal Claims Collection Standards 4, II
Federal Communications Commission 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I; 48, 44
Federal Energy Regulatory Commission 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Grain Inspection Service 7, VIII
Federal Highway Administration 23, I, II; 49, III
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Finance Board 12, IX
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Inspector for the Alaska Natural Gas Transportation System,
Office of 10, XV
Federal Labor Relations Authority, and General Counsel of the Federal
Labor Relations Authority 5, XIV; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 29, XXVII
Federal Pay, Advisory Committee on 5, IV
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Property Management Regulations System 41, Subtitle C
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Federal Retirement Thrift Investment Board 5, VI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 5, XLVII; 16, I
Federal Transit Administration 49, VI
Federal Travel Regulation System 41, Subtitle F
Finance and Management, Department of Agriculture 7, XXX
Fine Arts Commission 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Fishing and Whaling, International Regulatory Agencies 50, III
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of United States 45, V
Foreign Economic Development Service 7, XXI
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II
General Sales Manager, Office of 7, XXV
General Services Administration
Contract Appeals Board 48, 61
Federal Acquisition Regulation 48, 5
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Property Management Regulations System 41, 101, 105
Federal Travel Regulation System 41, Subtitle F
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Relocation Allowances 41, 302
Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grants and Program Systems, Office of 7, XXXII
Great Lakes Pilotage 46, III
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 45, Subtitle A
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services Office 45, XIII
Inspector General, Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Social Security Administration 20, III
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Acquisition Regulation 48, 24
Government National Mortgage Association 24, III
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Inspector General, Office of 24, XII
Mortgage Insurance and Loan Programs Under Emergency Homeowners'
Relief Act 24, XV
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle B, VII
Solar Energy and Energy Conservation Bank 24, XI
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Human Development Services Office 45, XIII
Immigration and Naturalization Service 8, I
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Information Agency, United States 22, V; 48, 19
Information Resources Management, Office of, Agriculture Department
7, XXVII
Information Security Oversight Office 32, XX
Inspector General, Office of, Agriculture Department 7, XXVI
Inspector General, Office of, Health and Human Services Department
42, V
Inspector General, Office of, Housing and Urban Development
Department 24, XII
Inter-American Foundation 22, X
Intergovernmental Relations, Advisory Commission on 5, VII
Interior Department
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Land Management Bureau 43, II
Minerals Management Service 30, II
Mines, Bureau of 30, VI
National Park Service 36, I
Reclamation Bureau 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
United States Fish and Wildlife Service 50, I, IV
Internal Revenue Service 26, I
International Boundary and Water Commission, United States and Mexico
22, XI
International Cooperation and Development Office, Department of
Agriculture 7, XXII
International Development, Agency for 22, II
International Development Cooperation Agency 22, XII
International Development, Agency for 22, II
Overseas Private Investment Corporation 22, VII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Regulatory Agencies (Fishing and Whaling) 50, III
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 49, X
James Madison Memorial Fellowship Foundation 45, XXIV
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 28, I; 41, 128
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United States 45, V
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department
Benefits Review Board 20, VII
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Mortgage Insurance and Loan Programs Under the Emergency Homeowners'
Relief Act, Department of Housing and Urban Development 24, XV
National Aeronautics and Space Administration 14, V; 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Archives and Records Administration 36, XII
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National and Community Service, Commission on 45, XXV
National Credit Union Administration 12, VII
National Drug Control Policy, Office of 21, III
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Indian Gaming Commission 25, III
National Institute of Standards and Technology 15, II
National Labor Relations Board 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 45, VI; 48, 25
National Security Council 32, XXI
National Security Council and Office of Science and Technology Policy
47, II
National Telecommunications and Information Administration 15, XXIII;
47, III
National Transportation Safety Board 49, VIII
Navy Department 32, VI; 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Nuclear Regulatory Commission 10, I; 48, XX
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Office of Independent Counsel 28, VII
Office of National Drug Control Policy 21, III
Office of Navajo and Hopi Indian Relocation 25, IV
Offices of Independent Counsel, Department of Justice 28, VI
Operations Office, Department of Agriculture 7, XXVIII
Overseas Private Investment Corporation 22, VII
Packers and Stockyards Administration 9, II
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration, Department of Labor 29,
XXV
Pension Benefit Guaranty Corporation 29, XXVI
Personnel Management, Office of 5, I; 45, VIII; 48, 17
Federal Employees Health Benefits Acquisition Regulation 48, 16
Postal Rate Commission 39, III
Postal Service, United States 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House Fellowships 1, IV
Presidential Commission on the Assignment of Women in the Armed
Forces 32, XXIX
Presidential Documents 3
Prisons, Bureau of 28, V
Productivity, Technology and Innovation, Assistant Secretary
(Commerce) 37, IV
Property Management Regulations System, Federal 41, Subtitle C
Public Contracts, Department of Labor 41, 50
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation Bureau 43, I
Reduction in Meeting and Training Allowance Payments 41, 304
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Resolution Trust Corporation 12, XVI
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National Security
Council 47, II
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I; 48, 22
Smithsonian Institution 36, V
Social Security Administration 20, III; 45, IV
Soil Conservation Service 7, VI
Solar Energy and Energy Conservation Bank, Department of Housing and
Urban Development 24, XI
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, Office of 34, III
State Department 22, I
Federal Acquisition Regulation 48, 6
Surface Mining and Reclamation Appeals, Board of 30, III
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Tennessee Valley Authority 18, XIII
Thrift Depositor Protection Oversight Board 12, XV
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 44, IV
Coast Guard 33, I; 46, I, III; 49, IV
Commercial Space Transportation, Office of 14, III
Contract Appeals Board 48, 63
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II; 49, III
Federal Railroad Administration 49, II
Federal Transit Administration 49, VI
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Transportation, Office of, Department of Agriculture 7, XXXIII
Travel Allowance 41, 301
Travel and Tourism Administration, United States 15, XII
Treasury Department 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision Office 12, V
United States Customs Service 19, I
Truman, Harry S. Scholarship Foundation 45, XVIII
Under Secretary for Technology, Department of Commerce 37, V
United States and Canada, International Joint Commission 22, IV
United States Arms Control and Disarmament Agency 22, VI
United States Customs Service 19, I
United States Fish and Wildlife Service 50, I, IV
United States Information Agency 22, V; 48, 19
United States International Development Cooperation Agency 22, XII
United States International Trade Commission 19, II
United States Postal Service 39, I
United States Soldiers' and Airmen's Home 5, XI
United States Trade Representative, Office of 15, XX
United States Travel and Tourism Administration 15, XII
Veterans Affairs Department 38, I; 48, 8
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agriculture Outlook Board 7, XXXVIII
38 CFR 17.612 38 CFR (7-1-93 Edition)
38 CFR 17.612 List of CFR Sections Affected
38 CFR 17.612 List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations which
were made by documents published in the Federal Register since January
1, 1986, are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters and parts as
well as sections for revisions.
For the period before January 1, 1986, see the ''List of CFR Sections
Affected, 1949-1963, 1964-1972, and 1973-1985,'' published in seven
separate volumes.
38 CFR 17.612 1986
38 CFR
51 FR
Page
Chapter I
1.575 (b) and (c) revised; eff. 7-16-86 21750
2.6 (e)(10) added 23227
3.7 (x)(14) added 6410
3.23 (a) and (c) revised 4342
3.24 (b) and (c) revised 4342
3.25 (a), (c), (d)(1), and (e) revised 4342
3.26 Revised 4343
3.30 (a) through (d) revised 1790
3.262 (b)(2) revised 4343
3.315 (b) corrected 1510
3.1612 (e)(2)(ii) revised 17629
4.71a Table II revised 6411
4.84a Table IV revised 6411
6 Implementation notice 18789
8 Implementation notice 18789
13.64 Added 26157
13.70 (a) (1) and (2) and (c) amended 26158
13.71 (b) revised 26158
14.619 (c) revised 23227
17.30 (w)(3) removed 25064
17.47 (c)(3) and (d)(3) redesignated as (e) (1) and (2); (a), (b),
(c), and (d) revised 25064
17.48 (e) through (h) redesignated as (h) through (k); (b) through
(d) revised; new (e), (f) and (l) added 25064
17.49 Revised 25066
17.50b Revised 25066
17.51 Revised 25067
17.51a Revised 25067
17.51b Revised 25067
17.52 -- 17.53d Undesignated center heading revised 25067
17.53 Removed 25067
17.56 -- 17.56a Undesignated center heading added 19330
17.56 Added 19330
17.56a Added 19330
17.57 (a) revised 14990
17.60 Introductory text, (e), (f) and (j) revised; (m) added 25067
17.60g (f) through (i) added 25068
17.61 Undesignated center heading and section revised 8672
17.80 (a) and (c) revised 8672
17.81 Introductory text and (b) revised 8672
17.84 (a) and (d) revised 8673
17.85 (b) revised; (c) removed 8673
38 CFR 17.612 1987
38 CFR
52 FR
Page
Chapter I
1.700 -- 1.705 Undesignated center heading added 10889
1.700 -- 1.704 Added 10889
1.705 Added 10890
1.900 Amended 42104
1.901 Revised 42105
1.902 Revised 42105
1.903 Amended 42105
1.905 Revised 42105
1.907 Added 42105
1.911 Removed; new 1.911 redesignated from 1.911a and (a) amended
42105
1.911a Redesignated as 1.911 and (a) amended 42105
1.912 Revised 42105
1.912a Heading and (a) revised 42106
1.916 Revised 42106
1.917 Revised 42106
1.918 Revised 42107
1.919 (a), (c), (e) and (f) revised 42107
1.922 (a)(1), (c) and (d)(2)(i) revised 42107
1.923 Added 42107
1.924 Added 42108
1.925 Added 42108
1.926 Added 42108
1.927 Added 42109
1.928 Added 42109
1.930 Revised 42109
1.931 Revised 42109
1.932 Revised 42110
1.934 Redesignated as 1.935; new 1.934 added 42110
1.935 Redesignated as 1.936; new 1.935 redesignated from 1.934 and
revised 42110
1.936 Redesignated as 1.937 and revised; new 1.936 redesignated from
1.935 42110
1.937 Redesignated as 1.938 and revised; new 1.937 redesignated from
1.936 and revised 42110
1.938 Redesignated from 1.937 and revised 42110
1.940 Revised 42110
1.941 Revised 42110
1.942 (a), (c) and (f) revised 42111
1.943 Revised 42111
1.950 -- 1.954 Undesignated center heading revised 42111
1.950 Revised 42111
1.951 Revised 42111
1.952 Revised 42112
1.953 Revised 42112
1.954 Revised 42112
1.955 (a)(1) amended 42112
1.957 (a)(2)(ii) amended; (a)(2)(ii)(B), (b) introductory text and
(1) revised; (a)(2)(ii) (C) and (D) added 42112
1.962 (b) revised 42112
1.963a (a) and (b) amended 42113
1.980 -- 1.994 Undesignated center heading added 1905
1.980 -- 1.981 Added 1905
1.980 (f) corrected 23824
1.981 (a)(3) corrected 23824
1.982 -- 1.984 Added 1906
1.985 Added 1907
1.986 Added 1907
1.987 Added 1907
(a) corrected 23824
1.988 -- 1.991 Added 1907
1.992 -- 1.994 Added 1908
3.23 Heading, (a) and (c) revised 34907
3.24 Heading, (b) and (c) revised 34907
3.25 Revised 34907
3.26 Revised 34908
3.27 (a) and (b) revised 34908
3.28 Revised 34908
3.155 (c) text revised; (c) cross reference added 27340
3.157 (a) amended; (b)(1) revised 27340
3.158 (a) amended; cross reference revised; authority citation
added 43063
3.202 (c) revised 19348
3.204 (c) revised 19348
3.205 (c) amended; cross reference added 19349
3.206 Cross reference added 19349
3.207 Cross reference added 19349
3.208 Amended; cross reference added 19349
3.209 Amended 19349
3.210 (c)(2) revised; cross reference added 19349
3.211 Cross reference added 19349
3.212 (a) amended; cross reference added 19349
3.213 (a) (1), (2), and (3) revised; cross reference added 19349
3.214 Amended; cross reference added 19349
3.215 Revised; cross reference added 19349
3.262 (b)(2) revised 34908
3.500 (v) revised 43063
3.652 Revised 43063
3.700 (a)(2) revised; (a)(3) amended; (a)(5) added 27340
3.802 (b) amended 34909
3.1600 (a), (b) introductory text, (f) introductory text and (g)
amended; (c) revised 34909
3.1601 (a)(1)(i) and (2)(i) revised; (a)(2)(iii) amended 34909
3.1604 (a) introductory text, (c), and (d)(3) revised; (b)(2)
amended 34909
3.1612 (e)(2)(ii) revised; (e)(2)(iii) added 34910
4.84b Redesignated as 4.87a 44119
4.85 Revised 44119
4.86a Revised 44119
Corrected 46439
4.87 Tables VI and VII revised; Table VIa added 44119
4.87a Removed; new 4.87a redesignated from 4.84b 44119
4 Appendixes A, B, and C amended 44122
Appendix A corrected 46439
8.28 Revised 36926
8a.2 Revised 48682
8a.4 (b) amended; (d) revised; authority citation added 48682
17.47 (a)(3) revised 11259
17.48 (g) revised 3010
(e)(1) introductory text revised; (e)(8) added 11259
17.51c -- 17.51g Undesignated center heading added 13441
17.51c Added 13441
17.51d Added 13441
17.51e Added 13441
17.51f Added 13442
17.51g Added 13442
17.62 (h) revised 3010
17.100 (d) and (j) amended; (a)(3) and (g)(3) removed; introductory
text, (e), (f)(1) and (k) revised; (m) added 7576
17.168 Added 23825
17.170 -- 17.177 Undesignated center heading and Note revised 23825
17.170 Introductory text, (d) and (e) revised; (f) through (j) added
23825
17.171 (a) revised 23826
17.172 Revised 23826
17.173 (e) redesignated as (h); (a) introductory text, (1), and (4),
(b) (5) and (8), (c), and (d) revised; (a)(5), (b) (9) and (10), (d),
(e), (f), and (g) added 23826
17.174 Revised 23828
17.175 Revised 23828
17.176 Revised 23829
17.177 (a)(4)(iii) removed 23829
17 Appendix A revised 23829
38 CFR 17.612 1988
38 CFR
53 FR
Page
Chapter I
1.300 -- 1.303 Undesignated center heading added 25490
1.300 Added 25490
1.301 Added 25490
1.302 Added 25490
1.303 Added 25490
1.526 (e)(3) removed; (e)(4) redesignated as (e)(3); (b) and (i)
revised; (i) authority citation added 10376
1.553 Revised; authority citation added 10377
1.554 (a)(7) revised; (c) and paragraph authority citations added
9442
1.555 Revised; authority citation added 10377
1.577 (f) and (g) revised; authority citation added 10380
1.710 Undesignated center heading and section added 22654
2.6 (e) introductory text, (1) (i) and (ii) revised; (e)(1)(iii)
removed 49879
2.66a Added 7184
2.99 Added 7185
3.7 (x)(15) added 16876
(x)(16) added 45907
3.22 (b) amended; eff. 7-21-88 23235
3.23 (d)(6) added; eff. 7-21-88 23235
3.30 Introductory text added; (b) and (c) revised 7903
3.100 (c) revised 3207
3.271 (a), (e), and (f) revised; eff. 7-21-88 23235
3.272 Introductory text, (g) introductory text, (1)(iii), (2)(iii),
and (3), (h) introductory text and (1)(i) revised; (l) and (m) added;
eff. in part 7-21-88 23235
(m) corrected 24831
3.309 (c) amended; authority citation revised 23236
3.342 (b)(4)(ii) revised 23236
3.343 (c)(1) amended; (c) authority citation added 23236
3.383 Revised 23236
3.384 Removed 23236
3.501 (i)(3) revised 23237
3.502 Introductory text and (c) revised 23237
3.503 Introductory text, (b) and (i) revised 23237
3.557 (b)(4) and (d) amended; (c) revised; authority citation
added; eff. in part 7-21-88 23237
3.800 (a)(2) amended; eff. 7-21-88 23237
3.807 Introductory text, (a)(4), (b), and (d) (2) and (3) revised;
cross references amended 46607
3.808 Introductory text, (c) and (d) revised; (b)(1)(iv) added 46607
3.809a Introductory text revised 23237
3.900 (d) amended 17934
3.901 (c) introductory text revised; (d) amended 17934
3.902 (b) amended; (c) introductory text, (1) introductory text and
(2) introductory text, and (3) revised 17934
3.903 (a)(4) amended 17934
3.904 (a) revised; (b) amended 17934
3.905 (a) and (b) amended; (b)(5) revised 17934
4.77 Revised 30262
4.84a Amended 30264
Table V amended 50955
4.125 Revised 22
4.126 Revised 22
4.127 Revised 22
4.128 Revised 23
4.129 Revised 23
4.130 Revised 23
4.131 Revised 23
4.132 Revised 23
Table correctly revised 1441
4 Appendix B amended 24938
Appendix C corrected 24938
8.28 (d) revised 17466
9.1 (j) amended 17698
9.2 (a) and (b) amended 17698
9.3 (d) revised; (e) amended 17698
(f) added 37757
9.4 Revised 17698
9.6 (a) amended 17698
9.8 (c) revised 17698
9.12 Amended 37757
9.16 (g) and (h) revised 17699
9.22 (b) revised 17699
9.24 (a) (1) and (2) amended 17699
9.26 (b) introductory text and (1) revised 17699
9.27 (a) revised 17699
9.36 Revised 17699
13.77 Authority citation revised 20618
13.100 (a), (b), (c), and (d) authority citations revised 20618
13.101 Authority citation revised 20618
13.102 (a) and authority citation revised; eff. 7-6-88 20618
13.103 Revised; eff. 7-6-88 20619
13.105 Authority citation revised 20618
13.106 Authority citation revised 20618
13.107 Authority citation revised 20619
13.108 Revised; eff. 7-6-88 20619
13.109 Heading revised; (d) (5), (6), and (7) added; eff. 7-6-88
20619
14.602 (a) introductory text and (4) and (b)(2) revised; (c) and (d)
removed; (d) redesignated as (c) 49880
14.619 Undesignated center heading and note following this section
removed 52419
14.626 -- 14.637 Undesignated center heading revised 52419
14.627 Revised 52419
14.628 Revised 52419
14.629 Revised 52421
14.630 Revised 52421
14.631 (a) introductory text, (c), and (d) revised 52421
14.632 -- 14.634 Revised 52422
14.635 Revised 52423
14.637 Revised 52423
15 Added 25885
15.170 (c) revised 25885
17.47 (e) introductory text correctly removed 9627
(e)(1) (ii) and (iv) and (2) corrected 32391
17.50b (a) corrected 32391
17.51a Revised 13121
17.60f Revised 7186
(c) corrected 32391
17.100 Introductory text revised 1755
17.115d Revised 46607
17.119a Redesignated as 17.119d; new 17.119a added 46607
17.119b Added 46608
17.119c Added 46608
17.119d Redesignated from 17.119a 46607
Republished 46608
38 CFR 17.612 1989
38 CFR
54 FR
Page
Chapter I
Chapter I Heading revised 11375
Nomenclature change 34978
0 Nomenclature change 34978
1 Nomenclature change 34978
1.15 (f)(3) amended 34980
1.17 (e) amended 34980
Revised 40391
1.452 (b) amended 34980
1.501 Amended 34980
1.503 Heading amended 34978
1.505 Amended 34980
1.508 (a) amended 34980
1.514 (a) amended 34980
1.526 Amended 34980
1.600 Amended 34980
1.620 (c) amended 34980
1.621 (a) revised; authority citation added 6521
1.653 Revised 26027
1.654 Nomenclature change 26027
1.655 Nomenclature change 26027
1.701 Amended 34980
1.704 Removed 34978
1.774 (g)(2) amended 34980
1.780 Amended 34980
1.911 (a) amended 34979
1.912 (d)(2) amended 34980
1.955 (b) heading and (1), (c), and (d) removed; (b) (2), (3), and
(4) redesignated as (b), (c), and (d); (e) added 40871
1.956 (a) (1), (2) and (2)(iv) nomenclature change 40871
1.980 (a) revised 34980
1.992 (a) amended 34980
2.1 (a) amended 34980
2.4 Amended 34980
2.6 (e)(9) and (10) redesignated as (e)(10) and (11); new (e)(9)
added 5613
Heading and (f)(1) revised; (d) amended 34980
2.7 (a) and (c) amended 34980
2.50 Heading amended 34980
2.56 Heading amended 34980
2.68a Heading amended 34980
2.69 Heading amended 34980
2.74 Heading amended 34980
2.76 Heading amended 34980
2.78 Heading amended 34980
2.79 Heading amended 34980
2.80 Heading amended 34980
2.81 Amended 34980
2.82 Heading amended 34980
2.83 Revised 26027
2.84 Heading amended 34980
2.87 Heading amended 34980
2.90 Heading amended 34980
2.91 Heading amended 34980
2.92 Heading amended 34980
2.94 Heading amended 34980
2.98 Heading amended 34980
3 Nomenclature change 34981
3.1 (g)(4) amended; (aa) added; cross reference revised 31828
(y)(2) introductory text amended 34981
3.6 (c) (4), (5) authority citation, (d)(2), and (e) introductory
text revised; (d)(3) redesignated as (d)(4); new (d) (3) and (4)
authority citation added 51200
3.11 Nomenclature change 31829
3.12 (k)(2) amended 24981
3.22 (a) introductory text and (e) authority citation revised 31829
3.26 (c)(2) and (d) amended 34981
3.28 (b) amdnded 34981
3.54 (c)(2) revised 31829
3.101 Revised 5613
3.151 (b) amended 34981
3.204 (c)(2)(iii) revised 5236
3.210 (c)(2) amended 34981
3.213 (a)(3) amended 34981
3.272 (f)(2)(iii) amended 34981
3.301 (b), (c) introductory text, (2) and cross reference revised;
interim; eff. to 1-1-90 31951
3.302 (a)(2), (b) (1) and (3) amended; interim; eff. to 1-1-90
31951
3.304 (b)(1) amended 34981
3.309 (a) through (c) amended; (d) added 26029
3.311b (a)(1) amended; (b)(2) (i), (iii), (xiv), (xv) and (4)
revised; (b)(2)(xvi), (xvii), (a)(1) authority citation and (b)(2)
authority citation added 42803
3.312 (c)(2) amended 34981
(c)(1) amended 42803
3.350 (f)(2)(vii)(C) amended 35981
3.400 (b) amended 34981
3.402 (c)(1) amended 34981
3.812 (c)(2) revised; (c)(3) removed; (c)(4) redesignated as (c)(3)
26030
4.16 (c) added 4281
4.25 Introductory text, (a), and (b) revised; eff. 7-28-89 27161
(a) and (b) correctly added 36029
4.29 Introductory text and (a) revised; (c) and (g) amended 4281
(g) amended 34981
4.30 Introductory text added; (a), (1), (2), and (3) revised 4281
4.88a Table amended 4282
Table corrected 10482
4.124a Table amended 4282
Table revised 49755
6 Nomenclature change 34981
6.69a Table revised; authority citation added 38229
7.14 Nomenclature change81
8.3 (d) revised; authority citation added 5931
8.8 (a) and (c) revised; authority citation added 46231
8.9 Revised 46232
8.80 Option 3 table and Option 4 introductory text and table revised;
authority citation added 38229
8.80c Option 3 table and Option 4 introductory text and table
revised; authority citation added 38230
8.81 Option 3 table and Option 4 introductory text and table revised;
authority citation added 38231
8.85 (a) revised 5931
8.92a Table revised; authority citation added 38232
8.113 (e) and authority citation revised 5931
9 Nomenclature change 34981
9.10 (b), (c), (e), and (f) amended 34982
9.12 Amended 34902
11.104 Amended 34982
12 Nomenclature change 34982
13 Nomenclature change 34982
13.109 (d)(7) amended 34982
14 Nomenclature change 34982
14.502 Revised 34982
14.503 (b) amended 34982
14.507 Revised 5613
14.514 -- 14.518 Undesignated center heading revised 5614
14.514 Heading revised; (c) redesignated as (e); new (c) and (d)
added 5614
14.600 (b)(3) amended 34982
14.603 (a)(5) amended 34982
15.170 (c) revised 34982
17 Nomenclature change 34983
17.30 (w)(3) added 14648
17.50b (a) (10) and (11) added 53057
17.51h Undesignated center heading and section added 20842
17.51i Added 20842
17.51j Added 20842
(b) added 22754
17.51k Added 20843
17.51l Added 20843
17.51m Added 20844
17.51n Added 20844
17.51o Added 20844
17.51p Added 20844
17.51r Added 20844
17.51s Added 20845
17.58 (c)(5) amended 34953
17.60 (i) amended 34983
17.64 (b) amended 34983
17.115 (a) amended 34983
17.115b (a) amended 34983
17.115c (a) redesignated as (a)(1) and amended 34983
17.123 (d) and (e) revised 25449
17.160 Revised 34983
17.161 (a) amended 34983
17.173 (e)(3) amended 34903
17.210 (d)(2) revised 34983
17.400 Amended 34984
17.402 (a) revised 34984
17.500 (b), (c) and (d) revised 28668
17.501 Revised 28669
17.504 Revised 28669
17.506 (a)(16) added; (e) removed 28669
17.507 (a)(4)(XVI) added 28669
17.508 (c) (2) and (5) amended 34983
17.511 -- 17.513 Removed 28669
17.514 Added 28670
17.515 Removed; new 17.515 redesignated from 17.516 and revised
28671
17.516 Redesignated as 17.515 and revised; new 17.516 redesignated
from 17.517 and (c) and (d) added; (f) removed 28671
17.517 Redesignated as 17.516 and (c) and (d) added; new 17.517
redesignated from 17.518 and (c) revised; (f) removed 28671
17.518 Redesignated as 17.517 and (c) revised; (f) removed; new
17.518 added 28671
17.523 Revised 28672
17.524 Revised 28672
17.527 (b), (d), (g) and (h) revised 28672
(j) amended 34983
17.534 (f) revised 28672
17.600 Revised 28674
17.601 (a) amended; (b), (e), (f), (h), (i), (m), (o), (r) and (u)
authority citation revised 28674
17.602 (a)(2) revised, (a)(5) authority citation, (b)(2) authority
citation, and (c) authority citation revised 28674
17.603 Revised 28674
17.604 Authority citation revised 28674
17.605 (a) introductory text, (2) authority citation, (b) (1), (4)
authority citation, (d) authority citation, and (e)(2) authority
citation revised 28674
17.606 (a)(1) authority citation, (3), (5) authority citation, (6)
authority citation, and (b) authority citation revised 28675
17.607 (e) removed; (f) redesignated as (e); (a), (b) (1), (2)
authority citation, (c), (d), and new (e) authority citation revised
28675
17.608 (e) removed; (f) redesignated as (e); (a), (b) and (c) (1),
(2) authority citation, (d), and new (e) authority citation revised
28675
17.609 Amended 28676
17.610 (a) authority citation, (b)(4) authority citation, and (c)
authority citation revised; (c) amended 28676
(c) corrected 46611
17.611 Authority citation revised 28676
17.612 (a) authority citation, (b)(2) authority citation, (c)
authority citation, and (d) authority citation revised 28676
38 CFR 17.612 1990
38 CFR
55 FR
Page
Chapter I
1.9 Undesignated center heading and section revised 49518
1.17 (d)(3) corrected 46187
1.527 (b) amended 21546
1.557 (a) amended 21546
1.577 (d) amended 21546
1.580 (a) amended 21546
2.6 (e)(12) added 21546
(e)(5) amended 48841
2.75 Heading amended 48841
3.1 (y) revised 8141
3.6 (d)(2) republished 23931
3.32 Added 8140
Introductory text corrected 10867
3.103 Revised 13527
(b)(2) corrected 17530
(c) amended and authority citation added 20148
(c)(1) correctly designated and amended 25308
3.105 (d) amended; (e) and (f) revised; (g) and (h) added 13528
3.109 (b) revised and authority citation added 13529
3.110 Revised and authority citation added 13529
3.114 (a) revised 13529
3.156 (a) revised and authority citation added 20148
(a) and (b) redesignated as (b) and (c); new (a) added 52275
3.159 Added 52273
3.160 (e) revised and authority citation added 20148
3.301 (b), (c) introductory text, (2) and cross-reference revised
13530
3.302 (a)(2), (b)(1), and (3) amended 13530
3.313 Added 43124
3.315 (c) revised; eff. 7-26-90 25974
3.326 Introductory text added; (a) and (d) amended 49521
3.327 (a), (b)(2), and (c) revised; (d) removed 49521
3.328 Added 18602
3.329 Removed 49521
3.341 (c) revised; authority citation republished 17271
3.342 (c)(1) amended; (c)(2) revised 17271
3.343 (c)(2) amended 17271
3.385 Added 12349
3.400 (r) revised and authority citation added 20148
3.655 Revised 49521
3.1601 (a) revised 50323
3.1612 (g) revised 50323
4.16 (a) amended 31580
4.117 Amended 43124
4.124a Table amended 154
14.629 (a)(2) revised; (a) authority citation added 38057
14.664 Amended 48841
17.36 Revised 11370
17.37 Removed 11370
17.38 (d) revised 11370
17.39 Removed 11370
17.48 (k) revised 38993
17.50e Authority citation revised 42852
17.50f Revised 42852
17.60 Revised 20150
17.87 Revised 42853
17.500 (b) and (c) revised; (e) added 13532
17.504 (a) revised 13532
17.508 (c)(1) and (2) revised 13532
17.517 (d) revised 13532
17.524 Revised 21546
17.527 (a), (e), and authority citation revised 13533
17.534 (d) revised 13533
17.541 Added 13533
17.600 Revised 40170
Effective date corrected 42562
17.601 (h) and (p) revised 40170
Effective date corrected 42562
17.606 (a)(7) added 40170
Effective date corrected 42562
38 CFR 17.612 1991
38 CFR
56 FR
Page
Chapter I
1 Technical correction 28226
1.511 Revised 15833
1.519 (e) amended 59218
1.575 (b) revised; authority citation added 25044
2.6 (e)(4) introductory text, (ii) and (iii) revised; (e)(4)(iii)
authority citation added 12123
(g) added 23519
3 Technical correction 28226
3.1 -- 3.1009 (Subpart A) Authority citation revised 65846, 65849,
65851, 65853
3.1 (d)(2) amended; (d)(2) authority citation revised 19579
3.2 (i) added 57986
3.3 (b)(3) and (4) revised 19579
(b)(3)(ii) corrected 22910
(a)(3)(v) revised 25044
(a)(3) amended 57986
3.7 (x)(11) through (14) and (16) authority citations removed;
(x)(17) through (19) and authority citation added 5756
(x) authority citation revised; (x)(20) and (21) added 65848
3.17 Amended 57986
3.54 (c)(2) amended 5756
(a)(3)(viii) added; (a)(3) authority citation revised 57986
3.55 (b) introductory text, (c), (d) and (e) introductory text
amended; authority citation revised 25044
3.104 (a) revised 65846
3.105 (a) amended 65846
3.215 Amended; authority citation revised 25044
3.272 (k) introductory text amended 65847
3.311a (d) removed; heading, (c) and authority citation revised
51653
(c)(1) amended; (d) added; authority citation revised 52474
3.342 (a) amended 25044
(c)(1) and (2) amended; (c)(3) added 65851
3.400 (d), (u)(3), (4), (v)(3), (4) and (w) revised 25044
3.454 (b)(1), (2), (c) and (d) amended 65850
(b)(3) added 65851
3.500 (n)(3) removed; (n)(4) redesignated as (n)(3); authority
citation added 4729
(q) amended 65847
3.501 (i)(3) redesignated as (i)(4); new (i)(3) added 25045
(i)(1) and (2) revised; (i)(3) and (4) redesignated as (i)(6) and
(7); new (i)(3), (4) and (5) added 65849
(n) added 65853
3.551 (h) added 25045
(b) heading revised; (b) redesignated as (b)(1); (d), (f) and (g)
redesignated as (f), (g) and (h); (b)(2), (3) and new (d) added; (e)
and (h)(1) introductory text revised 65849
(c)(2), (4), (6) and (7) removed; (c)(3) and (5) redesignated as
(c)(2) and (3); (a), (b)(1), (c) introductory text, (1), new (c)(2),
(3), (h)(2) and (3) amended 65850
3.700 (a)(1)(i) amended 1111
3.810 (a) introductory text and (a)(2) introductory text revised;
(a)(2) authority citation removed; new authority citation added 5756
3.850 -- 3.857 Undesignated center heading revised 65853
3.853 Added 65853
3.1000 (g) revised 18733
(g) corrected 24239
3.960 (b)(5) and (c) amended 28824
3.1600 (f)(2), (3) and (4) redesignated as (f)(3), (4) and (5); new
(f)(2) added; new (f)(3) amended 25045
3.1612 (h) added 25045
(b)(3), (c), (e)(1) and (2)(i) revised; (e)(2)(iii) and (3)
redesignated as (e)(3) and (4) 65851
4.17 Introductory text amended; authority citation added 57985
4.73 Table amended 51653
4.104 Table amended 51653
4.124a Table amended; authority citation added 51653
6.71 Added 15285
6.211 Added 9627
8 Authority citation revised 57492
8.5 Amended; authority citation added 57492
8.83 Added 15285
8.119 Added 9627
13 Authority citation revised 65853
13.109 Heading, (d)(5) and authority citation revised 65853
16 Added; eff. 8-19-91 28012, 28021
16.101 (b)(5) corrected 29756
16.103 (f) corrected 29756
17.47 (e) and authority citation revised 5757
17.48 (b)(2) revised 5757
17.56 (a) amended 3422
17.80 (a)(4) amended 3422
17.99 Amended 3422
17.100 Introductory text, (e), (h), (i) and (m) removed; (a) through
(d), (f), (g), (j), (k) and (l) redesignated as (f) through (n); new
(a) through (e) added; new (h), (k)(1) and (2) amended 52475
17.101 Redesignated as 17.102; new 17.101 added 52475
17.102 Redesignated as 17.103; new 17.102 redesignated from 17.101
52475
17.103 Redesignated from 17.102 52475
17.170 (b) revised 20353
17.171 Appendix A redesignated from 17.177 and amended 20353
17.172 Existing text designated as (a); (b), (c) and authority
citation added 20354
17.173 (c)(3) introductory text redesignated as (c)(3)(i) and (ii);
new (c)(3)(ii)(A), new (c)(3)(ii)(C) and (d) amended; (e) through (h)
redesignated as (f) through (i); (c)(3)(ii)(A)(1), (2) and new (e)
added; (a)(5), (b)(7) and new (c)(3)(i) revised; OMB number 20354
17.177 Appendix A redesignated as 17.171 Appendix A and amended 20353
Revised 20355
17.178 Added 20355
17.179 Added 20356
17.180 Added 20357
17.181 Added 20357
17.182 Added 20358
17.183 Added 20359
38 CFR 17.612 1992
38 CFR
57 FR
Page
Chapter I
0 Nomenclature change 31006
1 Nomenclature change 31006, 31007
Authority citation revised 33875
Regulation at 57 FR 31007 corrected 38609
1.554a Added 2229
1.630 (c) revised; authority citation added 44123
1.631 Authority citation added 44124
1.633 Added 44124
1.912a (a) revised; (d)(1) redesignated as (d); (d)(2) removed;
(e) added 47263
1.930 Revised 47263
1.936 Revised 47264
1.940 Revised 47264
1.955 (a)(1), (d) and authority citation revised 47264
1.957 (a)(2), (b) introductory text, (1), (2) and authority citation
revised 47264
1.964 (e) revised 33875
2 Nomenclature change 31007
Regulation at 57 FR 31007 corrected 38609
3 Nomenclature change 31007 -- 31012
Technical correction 36439
3.1 -- 3.1009 (Subpart A) Authority citation revised 8268, 10425,
59296
3.5 (b)(3) correctly added; CFR correction 34517
3.7 (x)(21) authority citation removed 43904
(x)(22), (23) and authority citation added 43905
(x)(24) through (26) added 60734
3.30 Heading, introductory text, (a) heading, (b) heading, (c)
heading and (d) heading revised; (e) redesignated as (f); new (e)
added 10425
3.55 (b) through (e) and cross reference revised 10426
3.103 (b)(1) and (f) amended 56993
3.104 Technical correction 2320
3.105 Technical correction 2320
(h)(2) introductory text amended 56993
3.215 Revised 10426
3.216 Added 8268
Amended 27935
3.261 Table amended 59298
3.262 (l)(1) through (4) and authority citation revised; (r) through
(u) added 59298
(g)(2), (h) introductory text, (j)(2), (3) heading, (k)(1), (5), (6),
(m) introductory text, (1), (2), (n) introductory text, (1), (2) and (p)
amended; (k) authority citation, (m) authority citation, (n) authority
citation and (o) authority citation revised 59299
3.263 (a) amended; (e) and (f) added 59299
3.271 (f) introductory text redesignated as (f)(1); (a)(1) through
(3) and (f)(2) added 59299
3.272 (d) revised; (n) through (p) added 59300
3.273 Introductory text and (d) added; (a), (b)(1), (2) and (c)
amended 59300
3.275 (f) and (g) added 59300
3.277 Authority citation revised 59300
3.306 (b) heading and (c) heading revised 59296
3.309 (d)(3) and (4)(i) revised 10426
3.316 Added 33877
3.343 (d) removed 10426
3.400 (u)(3), (4), (v)(3), (4) and (w) revised 10426
3.454 (b)(3) corrected 7847
3.500 (w) added 8268
3.551 (h) correctly redesignated as (i) 8578
3.660 (a)(2) heading, (b) introductory text, (1) and (2) amended;
(b) authority citation removed; (b)(1) authority citation added 59300
3.661 Heading, (a)(1) heading, (b) heading, (1) and (2) amended 59300
3.951 Existing text designated as (b); (a) and authority citation
added 10426
3.1600 -- 3.1612 (Subpart B) Authority citation revised 29025
3.1610 Revised 29025
Introductory text and (b) corrected 40944
4 Technical correction 11352
Nomenclature change 31012
Regulation at 57 FR 31012 corrected 38610
Introductory text and (b) corrected 40944
4.84a Table revised 24364
4.88a Table amended 10136
4.124a Table revised 24364
6 Nomenclature change 31012
Regulation at 57 FR 31013 corrected 38610
8 Nomenclature change 31013, 31014
Regulation at 57 FR 31013 corrected 38610
9 Nomenclature change 31014
9.2 (a) and (b) amended 11910
9.3 (e) revised 11910
9.4 Revised 11910
9.24 (a)(1) and (2) amended 11910
10 Nomenclature change 31014
11 Nomenclature change 31014
12 Nomenclature change 31014
13 Nomenclature change 31014
Regulation at 57 FR 31014 corrected 38610
14 Authority citation revised 4104, 33878
Nomenclature change 31015
14.628 Authority citation and (a)(2) introductory text revised 33878
14.634 Removed; new 14.634 redesignated from 14.636; amended;
authority citation added 4104
14.635 Removed; new 14.635 redesignated from 14.637; amended 4104
14.636 Redesignated as 14.634 4104
14.637 Redesignated as 14.635 4104
16 Nomenclature change 31015
17 Nomenclature change 31015, 31018
Regulation at 57 FR 31017 corrected 38610
Authority citation revised 41701
17.123 (b)(1)(i)(A) revised 4367
(j) redesignated as (j)(1); (j)(2) and authority citation added
41701
38 CFR 17.612 1993
38 CFR
58 FR
Page
Chapter I
1.955 -- 1.970 Authority citation revised 3840
1.963 (a) and authority citation revised 3840
1.964 (a) and authority citation revised 3840
1.965 (b) introductory text and (2) introductory texts revised;
authority citation added 3841
(b)(2) corrected 7296
2.6 Heading and (c) revised 32442
3.5 (e)(1), (2) and authority citation revised 25561
(e)(1) corrected 27622
3.55 Revised 32444
3.103 (c)(1) amended 16360
3.110 (b) amended 32443
3.115 Added 32445
3.156 (b) amended 32443
3.160 (d) and (e) amended 32443
3.201 (a) and authority citation revised 25562
3.215 Amended 32445
3.216 Authority citation removed 12174
3.261 Table corrected 12174, 31910
Table amended 33766
(a) heading correctly designated; table corrected 31909
3.262 (u) and authority citation revised 33767
3.263(f) and authority citation revised 33767
3.272 (l) and authority citation revised 25563
3.304 (f) and authority citation added 29110
3.307 Heading revised; (a)(6) and authority citation added; (a)
introductory text and (1) amended 29109
3.309 (d)(1) amended; (d)(2)(xiv) and (xv) added; (d)(3) removed;
(d)(4) redesignated as (d)(3) 25564
(e) and (e) authority citation added 29109
3.311b (b)(2)(xvi) and (xvii) amended; (b)(2)(xviii) and (xix)
added; (h) revised 16359
3.341 (c) amended 32445
3.342 (c)(1) amended; (c)(2) removed; (c)(3) redesignated as (c)(2)
32445
3.343 (c)(2) amended 32445
3.400 (q)(1)(i) and (r) amended 32443
3.500 (x) added 25564
(f) amended 32443
3.502 (f) added 32445
3.551 (i) amended 32445
3.558 (c) revised 34224
3.715 Added 25564
3.812 (f)(2) amended; (f)(4) redesignated as (f)(5); new (f)(4)
added; authority citation revised 34525
3.905 (d) amended 32443
17.50b (a)(1)(iii) and (a)(1)(iv) redesignated as (a)(1)(iv) and
(a)(1)(v); new (a)(1)(iii) added 32446
17.60 (f) amended 25565
38
Pensions, Bonuses, and Veterans' Relief
PARTS 0 to 17
Revised as of July 1, 1993
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JULY 1, 1993
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
Washington, DC 20402-9328
38 CFR 17.612 Table of Contents
Page
Explanation
Title 38:
Chapter I -- Department of Veterans Affairs
Finding Aids:
Material Approved for Incorporation by Reference
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
38 CFR 17.612 Explanation
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16 as of January 1
Title 17 through Title 27 as of April 1
Title 28 through Title 41 as of July 1
Title 42 through Title 50 as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, July 1, 1993), consult the ''List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ''Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal
agencies to display an OMB control number with their information
collection request. Many agencies have begun publishing numerous OMB
control numbers as amendments to existing regulations in the CFR. These
OMB numbers are placed as close as possible to the applicable
recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected,
1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes.
For the period beginning January 1, 1986, a ''List of CFR Sections
Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on
which approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you
find the material is not available, please notify the Director of the
Federal Register, National Archives and Records Administration,
Washington DC 20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ''Title 3 -- The President'' is carried
within that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ''Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES AND SALES
For a summary, legal interpretation, or other explanation of any
regulation in this volume, contact the issuing agency. Inquiries
concerning editing procedures and reference assistance with respect to
the Code of Federal Regulations may be addressed to the Director, Office
of the Federal Register, National Archives and Records Administration,
Washington, DC 20408 (telephone 202-523-3517). All mail order sales are
handled exclusively by the Superintendent of Documents, Attn: New
Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may
be telephoned to the Government Printing Office order desk at
202-783-3238.
Martha L. Girard,
Director,
Office of the Federal Register.
July 1, 1993.
38 CFR 17.612 THIS TITLE
Title 38 -- Pensions, Bonuses and Veterans' Relief is composed of two
volumes, parts 0-17 and part 18 to End. The contents of these volumes
represent all current regulations of the Department of Veterans Affairs
codified under this title of the CFR as of July 1, 1993.
For this volume, Ann E. Worley was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Richard L. Claypoole, assisted by Alomha S. Morris.
38 CFR 0.0 38 CFR Ch. I (7-1-93 Edition)
38 CFR 0.0 Department of Veterans Affairs
38 CFR 0.0 Title 38 -- Pensions, Bonuses, and
38 CFR 0.0 Veterans' Relief
38 CFR 0.0 (This book contains part 18 to End)
Part
chapter i -- Department of Veterans Affairs (Continued) 18
38 CFR 0.0 38 CFR Ch. I (7-1-93 Edition)
38 CFR 0.0 Department of Veterans Affairs
38 CFR 0.0 CHAPTER I -- DEPARTMENT OF VETERANS AFFAIRS -- CONTINUED
Part
Page
18 Nondiscrimination in federally-assisted programs of the Department
of Veterans Affairs -- effectuation of Title VI of the Civil Rights Act
of 1964
18a Delegation of responsibility in connection with Title VI, Civil
Rights Act of 1964
18b Practice and procedure under Title VI of the Civil Rights Act of
1964 and Part 18 of this chapter
19 Board of Veterans' Appeals: Appeals Regulations
20 Board of Veterans' Appeals: Rules of Practice
21 Vocational rehabilitation and education
25 Uniform relocation assistance and real property acquisition for
Federal and federally assisted programs
26 Environmental effects of the Department of Veterans Affairs (VA)
actions
36 Loan guaranty
39 State cemetery grants
40 Intergovernmental review of Department of Veterans Affairs
programs and activities
41 Auditing requirements
42 Standards implementing the Program Fraud Civil Remedies Act
43 Uniform administrative requirements for grants and cooperative
agreements to State and Local Governments
44 Governmentwide debarment and suspension (nonprocurement) and
governmentwide requirements for drug-free workplace (grants)
45 New restrictions on lobbying
Editorial Note: Nomenclature changes affecting Chapter I appear at
54 FR 34978, Aug. 23, 1989; 57 FR 31018, July 13, 1992; 57 FR 38610,
Aug. 26, 1992; and 57 FR 43616, Sept. 22, 1992.
38 CFR 0.0 38 CFR Ch. I (7-1-93 Edition)
38 CFR 0.0 Department of Veterans Affairs
38 CFR 0.0 Pt. 18
38 CFR 0.0 PART 18 -- NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE DEPARTMENT OF VETERANS AFFAIRS -- EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
38 CFR 0.0 Subpart A -- General
Sec.
18.1 Purpose.
18.2 Application of this part.
18.3 Discrimination prohibited.
18.4 Assurances required.
18.6 Compliance information.
18.7 Conduct of investigations.
18.8 Procedure for effecting compliance.
18.9 Hearings.
18.10 Decisions and notices.
18.11 Judicial review.
18.12 Effect on other regulations, forms and instructions.
18.13 Definitions.
Appendix A to Subpart A -- Statutory Provisions to Which This Subpart
Applies
Appendix B to Subpart A -- Illustrative Applications
38 CFR 0.0 Subparts B -- C (Reserved)
38 CFR 0.0 Subpart D -- Nondiscrimination in Federally-Assisted
Programs of the Department of Veterans Affairs -- Effectuation of Title
VI of the Civil Rights Act of 1964
18.401 Purpose.
18.402 Application.
18.403 Definitions.
18.404 Discrimination prohibited.
18.405 Assurances required.
18.406 Remedial action, voluntary action and self-evaluation.
18.407 Designation of responsible employee and adoption of grievance
procedures.
18.408 Notice.
18.409 Administrative requirements for certain recipients.
18.410 Effect of State or local law or other requirements and effect
of employment opportunities.
18.411 Discrimination prohibited.
18.412 Reasonable accommodation.
18.413 Employment criteria.
18.414 Preemployment inquiries.
18.421 Discrimination prohibited.
18.422 Existing facilities.
18.423 New construction.
18.431 Application.
18.432 Location and notification.
18.433 Free appropriate public education.
18.434 Education setting.
18.435 Evaluation and placement.
18.436 Procedural safeguards.
18.437 Nonacademic services.
18.438 Adult education programs.
18.439 Private education programs.
18.441 Application.
18.442 Admissions and recruitment.
18.443 General treatment of students.
18.444 Academic adjustments.
18.445 Housing.
18.446 Financial and employment assistance to students.
18.447 Nonacademic services.
18.451 Application.
18.452 Health and other social services.
18.453 Drug and alcohol addicts.
18.454 Education of institutionalized persons.
18.461 Procedures.
Appendix A to Subpart D -- Statutory Provisions to Which This Part
Applies
38 CFR 0.0 Subpart E -- Nondiscrimination on the Basis of Age
18.501 Purpose.
18.502 Application.
18.503 Definitions.
18.511 Rules against age discrimination.
18.512 Definitions of ''normal operation'' and ''statutory
objective.''
18.513 Exceptions to the rules against age discrimination; normal
operation or statutory objective of any program or activity.
18.514 Exceptions to the rules against age discrimination;
reasonable factors other than age.
18.515 Burden of proof.
18.516 Affirmative action by recipients.
18.531 General responsibilities.
18.532 Notice of subrecipients.
18.533 Assurance of compliance and recipient assessment of age
distinctions.
18.534 Information requirements.
18.541 Compliance reviews.
18.542 Complaints.
18.543 Mediation.
18.544 Investigation.
18.545 Prohibition against intimidation or retaliation.
18.546 Compliance procedure.
18.547 Hearings, decisions, post-termination proceedings.
18.548 Remedial action by recipient.
18.549 Alternate funds disbursal procedure.
18.550 Exhaustion of administrative remedies.
Appendix A to Subpart E -- Statutory Provisions to Which This Subpart
Applies
Appendix B to Subpart E -- List of Age Distinctions Contained in
Statutes and Regulations Governing Federal Financial Assistance Programs
of the Department of Veterans Affairs
38 CFR 0.0 Subpart A -- General
Authority: Sec. 602, 78 Stat. 252 (42 U.S.C. 2000d-1) and the laws
referred to in Appendix A.
38 CFR 18.1 Purpose.
The purpose of this part is to effectuate the provisions of Title VI
of the Civil Rights Act of 1964 (hereafter referred to as the Act) to
the end that no person in the United States shall, on the ground of
race, color, or national origin, be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program or activity receiving Federal financial assistance
from the Department of Veterans Affairs.
(29 FR 19301, Dec. 31, 1964. Designated subpart A at 45 FR 63268,
Sept. 24, 1980)
38 CFR 18.2 Application of this part.
This part applies to any program for which Federal financial
assistance is authorized under a law administered by the Department of
Veterans Affairs, including the federally-assisted programs and
activities listed in appendix A to this subpart. It applies to money
paid, property transferred, or other Federal financial assistance
extended under any such program after the effective date of this part
pursuant to an application approved prior to such effective date. This
part does not apply to (a) any Federal financial assistance by way of
insurance or guaranty contracts, (b) money paid, property transferred,
or other assistance extended under any such program before the effective
date of this part, (c) any assistance to any individual who is the
ultimate beneficiary under any such program, or (d) any employment
practice, under any such program, of any employer, employment agency, or
labor organization, except to the extent described in 18.3. The fact
that a program or activity is not listed in appendix A to this subpart
shall not mean, if Title VI of the Act is otherwise applicable, that
such program is not covered. Other programs under statutes now in force
or hereinafter enacted may be added to appendix A to this subpart by
notice published in the Federal Register.
(38 FR 17965, July 5, 1973. Designated subpart A at 45 FR 63268,
Sept. 24, 1980)
38 CFR 18.3 Discrimination prohibited.
(a) General. No person in the United States shall, on the ground of
race, color, or national origin be excluded from participation in, be
denied the benefits of, or be otherwise subjected to discrimination
under any program to which this part applies.
(b) Specific discriminatory actions prohibited. (1) A recipient
under any program to which this part applies may not, directly or
through contractual or other arrangements, on grounds of race, color, or
national origin:
(i) Deny an individual any service, financial aid, or other benefit
provided under the program;
(ii) Provide any service, financial aid, or other benefit to an
individual which is different, or is provided in a different manner,
from that provided to others under the program;
(iii) Subject an individual to segregation or separate treatment in
any matter related to receipt of any service, financial aid, or other
benefit under the program;
(iv) Restrict an individual in any way in the enjoyment of any
advantage or privilege enjoyed by others receiving any service,
financial aid, or other benefit under the program;
(v) Treat an individual differently from others in determining
whether is satisfied any admission, enrollment, quota, eligibility,
membership or other requirement or condition which individuals must meet
in order to be provided any service, financial aid, or other benefit
provided under the program.
(vi) Deny a person an opportunity to participate in the program
through the provision of services or otherwise or afford an opportunity
to do so which is different from that afforded others under the program.
(vii) Deny a person the opportunity to participate as a member of a
planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the types of services, financial aid,
or other benefits, or facilities which will be provided under any such
program, or the class of individuals to whom, or the situations in
which, such services, financial aid, other benefits, or facilities will
be provided under any such program, or the class of individuals to be
afforded an opportunity to participate in any such program, may not,
directly or through contractual or other arrangements, utilize criteria
or methods of administration which have the effect of subjecting
individuals to discrimination because of their race, color, or national
origin, or have the effect of defeating or substantially impairing
accomplishment of the objectives of the program with respect to
individuals of a particular race, color, or national origin.
(3) In determining the site or location of facilities, a recipient or
applicant may not make selections with the purpose or effect of
excluding individuals from, denying them the benefits of, or subjecting
them to discrimination under any program to which this part applies on
the grounds of race, color or national origin; or with the purpose or
effect of defeating or substantially impairing the accomplishment of the
objectives of the Act or this part.
(4) As used in this section the services, financial aid, or other
benefits provided under a program receiving Federal financial assistance
shall be deemed to include any service, financial aid, or other benefit
provided in or through a facility provided with the aid of Federal
financial assistance.
(5) The enumeration of specific forms of prohibited discrimination in
this paragraph does not limit the generality of the prohibition in
paragraph (a) of this section.
(6)(i) In administering a program regarding which the recipient has
previously discriminated against persons on the ground of race, color,
or national origin, the recipient must take affirmative action to
overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient in
administering a program may take affirmative action to overcome the
effects of conditions which resulted in limiting participation by
persons of a particular race, color or national origin.
(c) Medical emergencies. Notwithstanding the foregoing provisions of
this section, a recipient of Federal financial assistance shall not be
deemed to have failed to comply with paragraph (a) of this section if
immediate provision of a service or other benefit to an individual is
necessary to prevent his or her death or serious impairment of his or
her health, and such service or other benefit cannot be provided except
by or through a medical institution which refuses or fails to comply
with paragraph (a) of this section.
(d) Employment practices. (1) Whenever a primary objective of the
Federal financial assistance to a program to which part 18 applies, is
to provide employment, a recipient of such assistance may not (directly
or through contractual or other arrangements) subject any individual to
discrimination on the ground of race, color, or national origin in its
employment practices under such program (including recruitment or
recruitment advertising, employment, layoff, or termination, upgrading,
demotion, or transfer, rates of pay or other forms of compensation, and
use of facilities). The requirements applicable to construction
employment under any such program shall be those specified in or
pursuant to part III of Executive Order 11246 (3 CFR Chapter IV) or any
Executive order which supersedes it.
(2) In regard to Federal financial assistance which does not have
providing employment as a primary objective, the provisions of paragraph
(d)(1) of this section apply to the employment practices of the
recipient if discrimination on the ground of race, color, or national
origin in such employment practices tends, on the grounds of race,
color, or national origin, to exclude persons from participation in, to
deny them the benefits of or to subject them to discrimination under the
program receiving Federal financial assistance. In any such case, the
provisions of paragraph (d)(1) of this section shall apply to the extent
necessary to assure equality of opportunity to and nondiscriminatory
treatment of beneficiaries.
(29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17965, July 5, 1973;
42 FR 60144, Nov. 25, 1977. Designated subpart A at 45 FR 63268, Sept.
24, 1980, and further amended at 51 FR 10384, Mar. 26, 1986)
38 CFR 18.4 Assurances required.
(a) General. (1) Every application for Federal financial assistance
to carry out a program to which this part applies, except a program to
which paragraph (b) of this section applies, and every application for
Federal financial assistance to provide a facility shall, as a condition
to its approval and the extension of any Federal financial assistance
pursuant to the application, contain or be accompanied by an assurance
that the program will be conducted or the facility operated in
compliance with all requirements imposed by or pursuant to this part.
Every program of Federal financial assistance shall require the
submission of such an assurance. In the case of an application for
Federal financial assistance to provide real property or structures
thereon, the assurance shall obligate the recipient, or, in the case of
a subsequent transfer, the transferee, for the period during which the
real property or structures are used for a purpose for which the Federal
financial assistance is extended or for another purpose involving the
provision of similar services or benefits. In the case of personal
property the assurance shall obligate the recipient for the period
during which the recipient retains ownership or possession of the
property. In all other cases the assurance shall obligate the recipient
for the period during which Federal financial assistance is extended
pursuant to the application. The responsible agency official shall
specify the form of the foregoing assurances for each program, and the
extent to which like assurances will be required of subgrantees,
contractors and subcontractors, transferees, successors in interest, and
other participants in the program. Any such assurance shall include
provisions which give the United States a right to seek its judicial
enforcement.
(2) Transfers of surplus property are subject to regulations issued
by the Administrator of General Services (41 CFR subpart 101-6.2).
(b) Continuing State programs. Every application by a State or a
State agency to carry out a program involving continuing Federal
financial assistance to which this part applies (including the programs
listed in appendix A to this subpart) shall as a condition to its
approval and the extension of any Federal financial assistance pursuant
to the application (1) contain or be accompanied by a statement that the
program is (or, in the case of a new program, will be) conducted in
compliance with all requirements imposed by or pursuant to this part,
and (2) provide or be accompanied by provision for such methods of
administration for the program as are found by the responsible agency
official to give reasonable assurance that the applicant and all
recipients of Federal financial assistance under such program will
comply with all requirements imposed by or pursuant to this part. In
any case in which the recipient is claiming financial assistance under a
continuing program pursuant to arrangements entered into prior to the
effective date of this part, the assurances provided by this paragraph
shall be included in the first application or claim for assistance on or
after the effective date of this part.
(c) Elementary and secondary schools. The requirements of paragraph
(a) or (b) of this section with respect to any elementary or secondary
school or school system shall be deemed to be satisfied if such school
or school system (1) is subject to a final order of a court of the
United States for the desegregation of such school or school system, and
provides an assurance that it will comply with such order, including any
future modification of such order, or (2) submits a plan for the
desegregation of such school or school system which the responsible
agency official determines is adequate to accomplish the purposes of the
Act and this part, at the earliest practicable time, and provides
reasonable assurance that it will carry out such plan; in any case of
continuing Federal financial assistance the responsible agency official
may reserve the right to redetermine, after such period as may be
specified by the official, the adequacy of the plan to accomplish the
purposes of the Act and this part. In any case in which a final order
of a court of the United States for the desegregation of such school or
school system is entered after submission of such a plan, such plan
shall be revised to conform to such final order, including any future
modification of such order.
(d) Extent of application to institution or facility. In the case
where any assurances are required from an academic, a medical care, or
any other institution or facility, insofar as the assurances relate to
the institution's practices with respect to the admission, care, or
other treatment of persons by the institution or with respect to the
opportunity of persons to participate in the receiving or providing of
services, treatment, or benefits, such assurances shall be applicable to
the entire institution or facility. That requirement may be waived by
the responsible agency official if the party furnishing the assurances
establishes to the satisfaction of the responsible agency official that
the practices in designated parts or programs of the institution or
facility will in no way affect its practices in the program of the
institution or facility for which Federal financial assistance is or is
sought to be provided, or affect the beneficiaries of or participants in
such program. If in any such case the assistance is or is sought for
the construction of a facility or part of a facility, the assurances
shall in any event extend to the entire facility and to facilities
operated in connection therewith.
(38 FR 17965, July 5, 1973. Designated subpart A at 45 FR 63268,
Sept. 24, 1980, and amended at 51 FR 10384, Mar. 26, 1986)
38 CFR 18.6 Compliance information.
(a) Cooperation and assistance. Each responsible agency official
shall to the fullest extent practicable seek the cooperation of
recipients in obtaining compliance with this part and shall provide
assistance and guidance to recipients to help them comply voluntarily
with this part.
(b) Compliance reports. Each recipient shall keep such records and
submit to the responsible agency official or designee, timely, complete
and accurate compliance reports at such times, and in such form and
containing such information, as the responsible agency official or
designee may determine to be necessary to enable the official to
ascertain whether the recipient has complied or is complying with this
part. In the case of any program under which a primary recipient
extends Federal financial assistance to any other recipient, such other
recipient shall also submit such compliance reports to the primary
recipient as may be necessary to enable the primary recipient to carry
out its obligations under this part. In general, recipients should have
available for the agency racial and ethnic data showing the extent to
which members of minority groups are beneficiaries of federally assisted
programs.
(c) Access to sources of information. Each recipient shall permit
access by the responsible agency official or designee during normal
business hours to such of its books, records, accounts, and other
sources of information, and its facilities as may be pertinent to
ascertain compliance with this part. Where any information required of
a recipient is in the exclusive possession of any other agency,
institution or person and this agency, institution or person shall fail
or refuse to furnish this information, the recipient shall so certify in
its report and shall set forth what efforts it has made to obtain the
information.
(d) Information to beneficiaries and participants. Each recipient
shall make available to participants, beneficiaries, and other
interested persons such information regarding the provisions of this
part and its applicability to the program under which the recipient
receives Federal financial assistance, and make such information
available to them in such manner, as the responsible agency official
finds necessary to apprise such persons of the protections against
discrimination assured them by the Act and this part.
(29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980 and amended at 51 FR
10384, Mar. 26, 1986)
38 CFR 18.7 Conduct of investigations.
(a) Periodic compliance reviews. The responsible agency official or
designee shall from time to time review the practices of recipients to
determine whether they are complying with this part.
(b) Complaints. Any person or any specific class of individuals who
believe they have been subjected to discrimination prohibited by this
part may themselves, or by a representative, file with the responsible
agency official or designee a written complaint. A complaint must be
filed not later than 180 days from the date of the alleged
discrimination unless the time for filing is extended by the responsible
agency offical or designee.
(c) Investigations. The responsible agency official or designee will
initiate a prompt investigation whenever a compliance review, report,
complaint, or any other information indicates a possible failure to
comply with this part. The investigation should include, where
appropriate, a review of the pertinent practices and policies of the
recipient, the circumstances under which the possible noncompliance with
this part occurred, and other factors relevant to a determination as to
whether the recipient has failed to comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to
paragraph (c) of this section indicates a failure to comply with this
part, the responsible agency official or designee will so inform the
recipient and the matter will be resolved by informal means whenever
possible. If it has been determined that the matter cannot be resolved
by informal means, action will be taken as provided for in 18.8.
(2) If an investigation does not warrant action pursuant to paragraph
(d)(1) of this section the responsible agency official or designee will
so inform the recipient and the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or
other person shall intimidate, threaten, coerce, or discriminate against
any individual for the purpose of interfering with any right or
privilege secured by section 601 of the Act or this part, or because the
individual has made a complaint, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under this part.
The identity of complainants shall be kept confidential except to the
extent necessary to carry out the purposes of this part, including the
conduct of any investigation, hearing, or judicial proceeding arising
thereunder.
(29 FR 19301, Dec. 31, 1964. Designated subpart A at 45 FR 63268,
Sept. 24, 1980 and amended at 51 FR 10384, Mar. 26, 1986)
38 CFR 18.8 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure
to comply with this part, and if the noncompliance or threatened
noncompliance cannot be corrected by informal means, compliance with
this part may be effected by the suspension or termination of or refusal
to grant or to continue Federal financial assistance or by any other
means authorized by law. Such other means may include, but are not
limited to, (1) a reference to the Department of Justice with a
recommendation that appropriate proceedings be brought to enforce any
rights of the United States under any law of the United States
(including other titles of the Act), or any assurance or other
contractual undertaking, and (2) any applicable proceeding under State
or local law.
(b) Noncompliance with 18.4. If an applicant fails or refuses to
furnish an assurance required under 18.4 or otherwise fails or refuses
to comply with a requirement imposed by or pursuant to that section
Federal financial assistance may be refused in accordance with the
procedures of paragraph (c) of this section. The Department of Veterans
Affairs shall not be required to provide assistance in such a case
during the pendency of the administrative proceedings under such
paragraph except that the Department of Veterans Affairs shall continue
assistance during the pendency of such proceedings where such assistance
is due and payable pursuant to an application therefor approved prior to
the effective date of this part.
(c) Termination of or refusal to grant or to continue Federal
financial assistance. No order suspending, terminating or refusing to
grant or continue Federal financial assistance shall become effective
until (1) the responsible agency official has advised the applicant or
recipient of failure to comply and has determined that compliance cannot
be secured by voluntary means, (2) there has been an express finding on
the record, after opportunity for hearing, of a failure by the applicant
or recipient to comply with a requirement imposed by or pursuant to this
part, (3) the action has been approved by the Secretary pursuant to
18.10(e), and (4) the expiration of 30 days after the Secretary has
filed with the committee of the House and the committee of the Senate
having legislative jurisdiction over the program involved, a full
written report of the circumstances and the grounds for such action.
Any action to suspend or terminate or to refuse to grant or to continue
Federal financial assistance shall be limited to the particular
political entity, or part thereof, or other applicant or recipient as to
whom such a finding has been made and shall be limited in its effect to
the particular program, or part thereof, in which such noncompliance has
been so found.
(d) Other means authorized by law. No action to effect compliance
with Title VI of the Act by any other means authorized by law shall be
taken by the Department of Veterans Affairs until (1) the responsible
agency official has determined that compliance cannot be secured by
voluntary means, (2) the recipient or other person has been notified of
its failure to comply and of the action to be taken to effect
compliance, and (3) the expiration of at least 10 days from the mailing
of such notice to the recipient or other person. During this period of
at least 10 days, additional efforts shall be made to persuade the
recipient or other person to comply with this part and to take such
corrective action as may be appropriate.
(29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980, and amended at 51
FR 10384, Mar. 26, 1986)
38 CFR 18.9 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing
is required by 18.8(c), reasonable notice shall be given by registered
or certified mail, return receipt requested, to the affected applicant
or recipient. This notice shall advise the applicant or recipient of
the action proposed to be taken, the specific provision under which the
proposed action against it is to be taken, and the matters of fact or
law asserted as the basis for this action, and either (1) fix a date not
less than 20 days after the date of such notice within which the
applicant or recipient may request of the responsible agency official
that the matter be scheduled for hearing or (2) advise the applicant or
recipient that the matter in question has been set down for hearing at a
stated place and time. The time and place so fixed shall be reasonable
and shall be subject to change for cause. The complainant, if any,
shall be advised of the time and place of the hearing. An applicant or
recipient may waive a hearing and submit written information and
argument for the record. The failure of an applicant or recipient to
request a hearing under this paragraph or to appear at a hearing for
which a date has been set shall be deemed to be a waiver of the right to
a hearing under section 602 of the Act and 18.8(c) of this part and
consent to the making of a decision on the basis of such information as
is available.
(b) Time and place of hearing. Hearings shall be held at the offices
of the Department of Veterans Affairs in Washington, D.C., at a time
fixed by the responsible agency official unless the official determines
that the convenience of the applicant or recipient or of the Department
of Veterans Affairs requires that another place be selected. Hearings
shall be held before the responsible agency official or, at the
official's discretion, before an administrative law judge appointed in
accordance with section 3105 of Title 5, U.S.C., or detailed under
section 3344 of Title 5, U.S.C.
(c) Right to counsel. In all proceedings under this section, the
applicant or recipient and the Department of Veterans Affairs shall have
the right to be represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing decision and
any administrative review thereof shall be conducted in conformity with
the procedures contained in 5 U.S.C. 554-557 (sections 5-8 of the
Administrative Procedure Act) and in accordance with such rules of
procedure as are proper (and not inconsistent with this section)
relating to the conduct of the hearing, giving of notices subsequent to
those provided for in paragraph (a) of this section, taking of
testimony, exhibits, arguments and briefs, requests for findings, and
other related matters. Both the Department of Veterans Affairs and the
applicant or recipient shall be entitled to introduce all relevant
evidence on the issues as stated in the notice for hearing or as
determined by the officer conducting the hearing at the outset of or
during the hearing.
(2) Technical rules of evidence shall not apply to hearings conducted
pursuant to this part, but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where reasonably
necessary by the officer conducting the hearing. The hearing officer
may exclude irrelevant, immaterial, or unduly repetitious evidence. All
documents and other evidence offered or taken for the record shall be
open to examination by the parties and opportunity shall be given to
refute facts and arguments advanced on either side of the issues. A
transcript shall be made of the oral evidence except to the extent the
substance thereof is stipulated for the record. All decisions shall be
based upon the hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or
related facts are asserted to constitute noncompliance with this part
with respect to two or more programs to which this part applies, or
noncompliance with this part and the regulations of one or more other
Federal departments or agencies issued under Title VI of the Act, the
Secretary may, by agreement with such other departments or agencies
where applicable, provide for the conduct of consolidated or joint
hearings, and for the application to such hearings of rules of
procedures not inconsistent with this part. Final decisions in such
cases, insofar as this part is concerned, shall be made in accordance
with 18.10.
(29 FR 19301, Dec. 28, 1964, as amended at 38 FR 17966, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980 and amended at 51 FR
10384, Mar. 26, 1986)
38 CFR 18.10 Decisions and notices.
(a) Procedure on decisions by an administrative law judge. If the
hearing is held by an administrative law judge such administrative law
judge shall either make an initial decision, if so authorized, or
certify the entire record including recommended findings and proposed
decision to the responsible agency official for a final decision, and a
copy of such initial decision or certification shall be mailed to the
applicant or recipient. Where the initial decision is made by the
administrative law judge the applicant or recipient may within 30 days
of the mailing of such notice of initial decision file with the
responsible agency official exceptions to the initial decision with
reasons therefor. In the absence of exceptions, the responsible agency
official may within 45 days after the initial decision serve on the
applicant or recipient a notice that the decision will be reviewed.
Upon the filing of such exceptions or of such notice of review the
responsible agency official shall review the initial decision and issue
a decision thereon including the reasons therefor. In the absence of
either exceptions or a notice of review the initial decision shall
constitute the final decision of the responsible agency official.
(b) Decisions on record or review by the responsible agency official.
Whenever a record is certified to the responsible agency official for
decision or the official reviews the decision of an administrative law
judge pursuant to paragraph (a) of this section, or whenever the
responsible agency official conducts the hearing, the applicant or
recipient shall be given reasonable opportunity to file with the
official briefs or other written statements of its contentions, and a
written copy of the final decision of the responsible agency official
shall be sent to the applicant or recipient and to the complainant, if
any.
(c) Decisions on record where a hearing is waived. Whenever a
hearing is waived pursuant to 18.9(a) a decision shall be made by the
responsible agency official on the record and a written copy of such
decision shall be sent to the applicant or recipient, and to the
complainant, if any.
(d) Rulings required. Each decision of an administrative law judge
or responsible agency official shall set forth a ruling on each finding,
conclusion, or exception presented, and shall identify the requirements
imposed by or pursuant to this part with which it is found that the
applicant or recipient has failed to comply.
(e) Approval by Secretary. Any final decision by an administrative
law judge which provides for the suspension or termination of, or the
refusal to grant or continue Federal financial assistance, or the
imposition of any other sanction available under this part of the Act,
shall promptly be transmitted to the Secretary personally, who may
approve such decision, may vacate it, or remit or mitigate any sanction
imposed.
(f) Content of orders. The final decision may provide for suspension
or termination of, or refusal to grant or continue Federal financial
assistance, in whole or in part, under the program involved, and may
contain such terms, conditions, and other provisions as are consistent
with and will effectuate the purposes of the Act and this part,
including provisions designed to assure that no Federal financial
assistance will thereafter be extended under such program to the
applicant or recipient determined by such decision to be in default in
its performance of an assurance given by it pursuant to this part, or to
have otherwise failed to comply with this part, unless and until it
corrects its noncompliance and satisfies the responsible agency official
that it will fully comply with this part.
(g) Post termination proceedings. (1) An applicant or recipient
adversely affected by an order issued under paragraph (f) of this
section shall be restored to full eligibility to receive Federal
financial assistance if it satisfies the terms and conditions of that
order for such eligibility or if it brings itself into compliance with
this section and provides reasonable assurance that it will fully comply
with this part.
(2) Any applicant or recipient adversely affected by an order entered
pursuant to paragraph (f) of this section may at any time request the
responsible agency official to restore fully its eligibility to receive
Federal financial assistance. Any such request shall be supported by
information showing that the applicant or recipient has met the
requirements of paragraph (g)(1) of this section. If the responsible
agency official determines that those requirements have been satisfied,
the official shall restore such eligibility.
(3) If the responsible agency official denies any such request, the
applicant or recipient may submit a request for a hearing in writing,
specifying why it believes such official to have been in error. It
shall thereupon be given an expeditious hearing, with a decision on the
record, in accordance with rules of procedure issued by the responsible
agency official. The applicant or recipient will be restored to such
eligibility if it proves at such a hearing that it satisfied the
requirements of paragraph (g)(1) of this section. While proceedings
under this paragraph are pending, the sanctions imposed by the order
issued under paragraph (f) of this section shall remain in effect.
(29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980, and amended at 51
FR 10384, Mar. 26, 1986)
38 CFR 18.11 Judicial review.
Action taken pursuant to section 602 of the Act is subject to
judicial review as provided in section 603 of the Act.
(29 FR 19301, Dec. 31, 1964. Designated subpart A at 45 FR 63268,
Sept. 24, 1980)
38 CFR 18.12 Effect on other regulations, forms and instructions.
(a) Effect on other regulations. All regulations, orders, or like
directions issued before the effective date of this part by any officer
of the Department of Veterans Affairs which impose requirements designed
to prohibit any discrimination against individuals on the grounds of
race, color or national origin under any program to which this part
applies, and which authorize the suspension or termination of or refusal
to grant or to continue Federal financial assistance to any applicant
for or recipient of such assistance under such program for failure to
comply with such requirements, are hereby superseded to the extent that
such discrimination is prohibited by this part, except that nothing in
this part shall be deemed to relieve any person of any obligation
assumed or imposed under any such superseded regulation, order,
instruction, or like direction prior to the effective date of this part.
Nothing in this part, however, shall be deemed to supersede any of the
following (including future amendments thereof):
(1) Executive Orders 10925 (3 CFR, 1959-1963 Comp., p. 448), 11114 (3
CFR, 1959-1963, p. 774), and 11246 (3 CFR, 1965 Supp., p. 167) and
regulations issued thereunder, or
(2) Executive Order 11063 (3 CFR, 1959-1963 Comp., p. 652) and
regulations issued thereunder, or any other orders, regulations or
instructions, insofar as such orders, regulations, or instructions
prohibit discrimination on the grounds of race, color or national origin
in any program or situation to which this part is inapplicable, or
prohibit discrimination on any other ground.
(b) Forms and instructions. Each responsible agency officials shall
issue and promptly make available to interested persons forms and
detailed instructions and procedures for effectuating this part as
applied to programs to which this part applies and for which he is
responsible.
(c) Supervision and coordination. The Secretary may from time to
time assign to officials of the Department of Veterans Affairs or to
officials of other departments or agencies of the Government with the
consent of such departments or agencies, responsibilities in connection
with the effectuation of the purposes of Title VI of the Act and this
part (other than responsibility for final decision as provided in
18.10) including the achievement of effective coordination and maximum
uniformity within the Department of Veterans Affairs and within the
executive branch of the Government in the application of Title VI and
this part to similar programs and in similar situations. Any action
taken, determination made, or requirement imposed by an official of
another department or agency acting pursuant to an assignment of
responsibility under this paragraph shall have the same effect as though
such action has been taken by the responsible official of this Agency.
(29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17967, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980)
38 CFR 18.13 Definitions.
As used in this part:
(a) The term agency means the Department of Veterans Affairs, and
includes each of its operating agencies and other organization units.
(b) The term Secretary means the Secretary of Veterans Affairs.
(c) The term responsible agency official with respect to any program
receiving Federal financial assistance means the Secretary or other
official of the Department of Veterans Affairs or an official of another
department or agency to the extent the Secretary has delegated authority
to such official.
(d) The term United States means the States of the United States, the
District of Columbia, Puerto Rico, the Virgin Islands, American Samoa,
Guam, Wake Island, the Canal Zone, and the territories and possessions
of the United States, and the term State means any one of the foregoing.
(e) The term Federal financial assistance includes (1) grants of
Federal funds, (2) the grant or donation of Federal property and
interests in property, (3) the detail of Federal personnel, (4) the sale
and lease of, and the permission to use (on other than a casual or
transient basis), Federal property or any interest in such property
without consideration or at a nominal consideration, or at a
consideration which is reduced for the purpose of assisting the
recipient, or in recognition of the public interest to be served by such
sale or lease to the recipient, and (5) any Federal agreement,
arrangement, or other contract which has as one of its purposes the
provision of assistance.
(f) The term program, except those specifically excluded in 18.2,
includes any program, project, or activity for the provision of
services, financial aid, or other benefits to individuals conducted
under a law administered by the Department of Veterans Affairs,
including but not limited to the programs and activities listed in
appendix A to this subpart. The services, financial aid, or other
benefits provided under a program receiving Federal financial assistance
shall be deemed to include any services, financial aid or other benefits
provided with the aid of Federal financial assistance or with the aid of
any non-Federal funds, property, or other resources required to be
expended or made available for the program to meet matching requirements
or other conditions which must be met in order to receive the Federal
financial assistance, and to include any services, financial aid, or
other benefits provided in or through a facility provided with the aid
of Federal financial assistance or such non-Federal resources.
(g) The term facility includes all or any portion of structures,
equipment, or other real or personal property or interests therein, and
the provision of facilities includes the construction, expansion,
renovation, remodeling, alteration or acquisition of facilities.
(h) The term recipient means any State, political subdivision of any
State, or instrumentality of any State or political subdivision, any
public or private agency, institution, or organization, or other entity,
or any individual, in the United States, to whom Federal financial
assistance is extended, directly or through another recipient, for any
program, including any successor, assignee, or transferee thereof, but
such term does not include any ultimate beneficiary under any such
program.
(i) The term applicant means a person who submits an application,
request, or plan required to be approved by the Secretary, or by a
recipient, as a condition to eligibility for Federal financial
assistance, and application means such an application, request, or plan.
(29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17967, July 5, 1973.
Designated subpart A at 45 FR 63268, Sept. 24, 1980, and amended at 51
FR 10385, Mar. 26, 1986)
38 CFR 18.13 Appendix A to Subpart A of Part 18 -- Statutory Provisions to Which This Subpart Applies
38 CFR 18.13 Pt. 18, Subpt. A, App. A
1. Payments to State homes (38 U.S.C. 1741-1743).
2. State home facilities for furnishing domiciliary, nursing home,
and hospital care (38 U.S.C. 8131-8137).
3. Space and office facilities for representatives of recognized
national organizations (38 U.S.C. 5902(a)(2)).
4. All-volunteer force educational assistance, vocational
rehabilitation, post-Vietnam era veterans' educational assistance,
survivors' and dependents' educational assistance, and administration of
educational benefits (38 U.S.C. Chapters 30, 31, 32, 34, 35 and 36,
respectively).
5. Sharing of medical facilities, equipment, and information (38
U.S.C. 8151-8157).
6. Approval of educational institutions (38 U.S.C. 104).
7. Space and office facilities for representatives of State
employment services (38 U.S.C. 7725(1)).
8. Medical care for survivors and dependents of certain veterans (38
U.S.C. 1713).
9. Transfers for nursing home care; adult day health care (38 U.S.C.
1720).
10. Treatment and rehabilitation for alcohol or drug dependence or
abuse disabilities (38 U.S.C. 1720A).
11. Aid to States for establishment, expansion, and improvement of
veterans cemeteries (38 U.S.C. 2408).
12. Assistance in establishing new medical schools; grants to
affiliated medical schools; assistance to health manpower training
institutions (38 U.S.C. Chapter 82).
13. Department of Veterans Affairs health professional scholarship
program (38 U.S.C. 7601-7655).
14. Emergency veterans job training (Pub. L. 98-77, 97 Stat.
443-452).
(51 FR 10385, Mar. 26, 1986)
38 CFR 18.13 Appendix B to Subpart A of Part 18 -- Illustrative Applications
38 CFR 18.13 Pt. 18, Subpt. A, App. B
The following examples, without being exhaustive, will illustrate the
application of the nondiscrimination provisions to certain grants of the
Department of Veterans Affairs. (In all cases the discrimination
prohibited is discrimination on the grounds of race, color, or national
origin prohibited by title VI of the Act and this part, as a condition
of the receipt of Federal financial assistance.)
(a) In grants which support the provision of health or welfare
services for veterans in State homes, discrimination in the selection or
eligibility of individuals to receive the services, and segregation or
other discriminatory practices in the manner of providing them, are
prohibited. This prohibition extends to all facilities and services
provided by the State as grantee under the program or by a political
subdivision of the State. It extends also to services purchased or
otherwise obtained by the grantee (or political subdivision) from
hospitals, nursing homes, schools, and similar institutions for
beneficiaries of the program, and to the facilities in which such
services are provided, subject, however, to the provisions of 18.3(c).
(b) In grants to assist in the construction of facilities for the
provision of health or welfare services assurances will be required that
services will be provided without discrimination, to the same extent
that discrimination would be prohibited as a condition of Federal
operating grants for the support of such services. Thus, as a condition
of grants for the construction of a State home for furnishing nursing
home care, assurances will be required that there will be no
discrimination in the admission or treatment of patients. In the case
of such grants the assurance will apply to patients, to interns,
residents, student nurses, and other trainees, and to the privilege of
physicians, dentists, and other professionally qualified persons to
practice in the nursing home, and will apply to the entire facility for
which, or for a part of which, the grant is made, and to facilities
operated in connection therewith.
(c) Upon transfers of real or personal surplus property for health or
educational uses, discrimination is prohibited to the same extent as in
the case of grants for the construction of facilities or the provision
of equipment for like purposes.
(d) A recipient may not take action that is calculated to bring about
indirectly what this part forbids it to accomplish directly. Thus a
State, in selecting or approving projects or sites for the construction
of a nursing home which will receive Federal financial assistance, may
not base its selections or approvals on criteria which have the effect
of defeating or of substantially impairing accomplishment of the
objectives of the Federal assistance program with respect to individuals
of a particular race, color, or national origin.
(38 U.S.C. 1741, 1744, 8131-8137, 8155, 5902(a)(2), Chapters 31, 34,
35 and 36)
(38 FR 17968, July 5, 1973. Designated subpart A at 45 FR 63268,
Sept. 24, 1980)
38 CFR 18.13 Subparts B -- C (Reserved)
38 CFR 18.13 Subpart D -- Nondiscrimination in Federally-Assisted
Programs of the Department of Veterans Affairs -- Effectuation of Title
VI of the Civil Rights Act of 1964
Authority: 29 U.S.C. 794; 42 U.S.C. 2000d-1 to 2000d-4, 6101-6107.
Source: 45 FR 63268, Sept. 24, 1980, unless otherwise noted.
38 CFR 18.13 General Provisions
38 CFR 18.401 Purpose.
The purpose of this part is to effectuate section 504 of the
Rehabilitation Act of 1973, which is designed to eliminate
discrimination on the basis of handicap in any program or activity
receiving Federal financial assistance.
38 CFR 18.402 Application.
This part applies to each recipient of Federal financial assistance
from the Department of Veterans Affairs and to each program or activity
that receives or benefits from such assistance.
38 CFR 18.403 Definitions.
As used in this part, the term:
(a) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as
amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516,
and Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978, Pub. L. 95-602, 29 U.S.C. 794.
(b) Section 504 means section 504 of the Act.
(c) Education of the Handicapped Act means that statute as amended by
the Education for all Handicapped Children Act of 1975, Pub. L.
94-142, 20 U.S.C. 1401 et seq.
(d) Agency means the Department of Veterans Affairs.
(e) Secretary means the Secretary of Veterans Affairs.
(f) Recipient means any State or its political subdivision, any
instrumentality of a State or its political subdivision, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended directly or
through another recipient, including any successor, assignee, or
transferee of a recipient but excluding the ultimate beneficiary of the
assistance.
(g) Applicant for assistance means one who submits an application,
request, or plan required to be approved by an Agency official or by a
recipient as a condition to eligibility for Federal financial
assistance.
(h) Federal financial assistance means any grant, loan, contract
(other than a procurement contract or a contract of insurance or
guaranty), or any other arrangement by which the Agency provides or
otherwise makes available assistance in the form of:
(1) Funds, including funds extended to any entity for payment to or
on behalf of students admitted to that entity, extended directly to
those students for payment to that entity, or extended directly to those
students contingent upon their participation in a program of education
or training of that entity;
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of property,
including;
(i) Transfers or leases of such property for less than fair market
value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property if
the Federal share of its fair market value is not returned to the
Federal Government.
(i) Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, or other real or personal
property or interest in such property.
(j) Handicapped person. (1) Handicapped person means any person who:
(i) Has a physical or mental impairment which substantially limits
one or more major life activities;
(ii) Has a record of such an impairment; or
(iii) Is regarded as having such an impairment.
(2) As used in paragraph (j)(1) of this section, the phrase:
(i) Physical or mental impairment means:
(A) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological, musculoskeletal; special sense organs including speech
organs; respiratory; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(B) Any mental or psychological discorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities.
(C) The term physical or mental impairment includes, but is not
limited to, such diseases and conditions as orthopedic, visual, speech
and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy,
multiple sclerosis, cancer, heart disease, diabetes, mental retardation,
emotional illness, drug addiction and alcoholism.
(ii) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working.
(iii) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(iv) Is regarded as having an impairment means:
(A) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by a recipient as
constituting such a limitation;
(B) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment;
(C) Has none of the impairments defined in paragraph (j)(2)(i) of
this section, but is treated by a recipient as having such an
impairment.
(k) Qualified handicapped person means:
(1) With respect to employment, a handicapped person who, with
reasonable accommodation, can perform the essential functions of the job
in question;
(2) With respect to public elementary, secondary, or adult
educational services, a handicapped person:
(i) Of an age during which nonhandicapped persons are provided such
services;
(ii) Of any age during which it is mandatory under State laws to
provide such services to handicapped persons; or
(iii) To whom a State is required to provide a free appropriate
public education under section 612 of the Education of the Handicapped
Act; and
(3) With respect to postsecondary and vocational education services,
a handicapped person who meets the academic and technical standards
requisite to admission or participation in the recipient's education
program or activity; and
(4) With respect to other services, a handicapped person who meets
the essential eligibility requirements for the receipt of such services.
(l) Handicap means any condition or characteristic that renders a
person a handicapped person as defined in paragraph (j) of this section.
38 CFR 18.404 Discrimination prohibited.
(a) General. No qualified handicapped person shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity which receives or benefits from Federal financial assistance.
(b) Discriminatory actions prohibited. (1) A recipient, in providing
an aid, benefit, or service, may not, directly or through contractual,
licensing, or other arrangements, on the basis of handicap:
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service that is
equal to that afforded others;
(ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or
service that is not as effective as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons unless such
action is necessary to provide qualified handicapped persons with aid,
benefits, or services that are as effective as those provided to others;
(v) Aid or perpetuate discrimination against a qualified handicapped
person by providing significant assistance to an agency, organization,
or person that discriminates on the basis of handicap in providing any
aid, benefit, or service to beneficiaries of the recipient's program;
(vi) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving an aid, benefit, or service.
(2) Aids, benefits, and services, to be equally effective, are not
required to produce the identical result or level of achievement for
handicapped and nonhandicapped persons, but must give handicapped
persons equal opportunity to obtain the same result, to gain the same
benefit, or to reach the same level of achievement, in the most
integrated setting appropriate to the person's needs.
(3) Despite the existence of separate or different programs or
activities provided in accordance with this part, a recipient may not
deny a qualified handicapped person the opportunity to participate in
programs or activities that are not separate or different.
(4) A recipient may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration that:
(i) Have the effect of subjecting qualified handicapped persons to
discrimination on the basis of handicap,
(ii) Have the purpose or effect of defeating or substantially
impairing accomplishment of the objectives of the recipient's program
with respect to handicapped persons, or
(iii) Perpetuate the discrimination of another recipient if both
recipients are subject to common administrative control or are agencies
of the same State.
(5) In determining the site or location of a facility, an applicant
for assistance or a recipient may not make selections that:
(i) Have the effect of excluding handicapped persons from, deny them
the benefits of, or otherwise subject them to discrimination under any
program or activity that receives or benefits from Federal financial
assistance, or
(ii) Have the purpose or effect of defeating or substantially
impairing the accomplishment of the objective of the program or activity
with respect to handicapped persons.
(6) As used in this section, the aid, benefit, or service provided
under a program or activity receiving or benefiting from Federal
financial assistance includes any aid, benefit, or service provided in
or through a facility that has been constructed, expanded, altered,
leased or rented, or otherwise acquired, in whole of in part, with
Federal financial assistance.
(c) Programs limited by Federal law. The exclusion of nonhandicapped
persons or the exclusion of a specific class of handicapped persons from
a program limited by Federal statue or Executive order to a different
class of handicapped persons is not prohibited by this part.
(d) Special communication. Recipients shall take appropriate action
to ensure that communications with their applicants, employees, and
beneficiaries are available to persons with impaired vision and hearing.
38 CFR 18.405 Assurances required.
(a) Assurances. An applicant for Federal financial assistance for a
program or activity to which this part applies shall submit an assurance
on a form specified by the Secretary, that the program will be operated
in compliance with this part.
(b) Duration of obligation. (1) When Federal financial assistance is
extended in the form of real property or structures on the property, the
assurance will obligate the recipient or, in the case of a subsequent
transfer, the transferee, for the period during which the real property
or structures are used for the purpose for which Federal financial
assistance is extended or for another purpose involving the provisions
of similar services or benefits.
(2) Where Federal financial assistance is extended to provide
personal property, the assurance will obligate the recipient for the
period during which it retains ownership or possession of the property.
(3) In all other cases the assurance will obligate the recipient for
the period during which Federal financial assistance is extended.
(c) Extent of application to institution or facility. An assurance
shall apply to the entire institution or facility unless the applicant
establishes, to the satisfaction of the Secretary, that the
institution's practices in designated parts or programs of the
institution will in no way affect its practices in the program of the
institution for which Federal financial assistance is sought, or the
beneficiaries of or participants in such a program. If the assistance
is being received or requested for the construction of a facility or
part of a facility, the assurance shall apply to the entire facility and
to other facilities operated in connection with the facility.
(d) Covenants. (1) Where Federal financial assistance is provided in
the form of real property or interest in the property from the Agency,
the instrument effecting or recording this transfer shall contain a
covenant running with the land to assure nondiscrimination for the
period during which the real property is used for a purpose for which
the Federal financial assistance is extended or for another purpose
involving the provisions of similar services or benefits.
(2) Where no transfer of property is involved but property is
purchased or improved with Federal financial assistance, the recipient
shall agree to include the covenant described in paragraph (b)(2) of
this section in the instrument effecting or recording any subsequent
transfer of property.
(3) Where Federal financial assistance is provided in the form of
real property or interest in the property from the Agency, the covenant
shall also include a condition coupled with a right to be reserved by
the Agency to revert title to the property if there is a breach of the
covenant. If a transferree of real property proposes to mortgage or
otherwise encumber the real property as security for financing
construction of new, or improvement of existing, facilities on the
property for the purpose for which the property was transferred, the
Secretary may, upon request of the transferee and if necessary to
accomplish such financing and upon such conditions as considered
appropriate, agree to forbear the exercise of the right to revert title
for as long as the lien of the mortgage or other encumbrance remains
effective.
(e) Other methods of enforcement. (1) Recipients are required to
keep such records as the responsible VA official deems necessary for
complete and accurate compliance reports. VA can specify intervals for
reporting and prescribe the form and content of information required to
ascertain whether the recipient has complied or is complying with the
law.
(2) Periodic compliance reviews of training establishments will be
conducted by VA compliance officers. During these reviews recipients
are required to permit access by VA compliance officers during normal
business hours to such of their books, records, accounts, facilities and
other sources of information including interviews with personnel and
trainees as may be pertinent to ascertain compliance with the law.
(3) From study of documentation, results of interviews, and
observation of activities during tours of facilities, compliance
officers will evaluate recipients' compliance status.
(45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26,
1986)
38 CFR 18.406 Remedial action, voluntary action and self-evaluation.
(a) Remedial action. (1) If the Secretary finds that a recipient has
discriminated against qualified persons on the basis of handicap in
violation of section 504 or this part, the recipient shall take such
remedial action as the Secretary considers necessary to overcome the
effects of the discrimination.
(2) Where a recipient is found to have discriminated against
qualified persons on the basis of handicap in violation of section 504
or this part and where another recipient exercises control over the
recipient that has discriminated, the Secretary, where appropriate, may
require either or both recipients to take remedial action.
(3) The Secretary may, where necessary to overcome the effects of
discrimination in violation of section 504 or this part, require a
recipient to take remedial action with respect to:
(i) Handicapped persons who are no longer participants in the
recipient's program but who were participants in the program when such
discrimination occurred;
(ii) Handicapped persons who would have been participants in the
program had the discrimination not occurred; or
(iii) Handicapped persons presently in the program, but not receiving
full benefits or equal and integrated treatment within the program.
(b) Voluntary action. A recipient may take steps, in addition to any
action that is required by this part, to overcome the effects of
conditions that resulted in limited participation in the recipient's
program or activity by qualified handicapped persons.
(c) Self-evaluation. (1) A recipient shall, within one year of the
effective date of this part:
(i) Evaluate with the assistance of interested persons, including
handicapped persons or organizations representing handicapped persons,
its current policies and practices and the effects of the policies and
practices that do not or may not meet the requirements of this part;
(ii) Modify, after consultation with interested persons, including
handicapped persons or organizations representing handicapped persons,
any policies and practices that do not meet the requirements of this
part; and
(iii) Take, after consultation with interested persons, including
handicapped persons or organizations representing handicapped persons,
appropriate remedial steps to eliminate the effects of any
discrimination that resulted from adherence to these policies and
practices.
(2) A recipient that employs fifteen or more persons shall, for at
least three years following completion of the evaluation required under
paragraph (c)(1) of this section, maintain on file, make available for
public inspection, and provide to the Secretary upon request:
(i) A list of the interested persons consulted;
(ii) A description of areas examined and any problems identified;
and
(iii) A description of any modifications made and of any remedial
steps taken.
(3) Recipients who become such more than one year after the effective
date of these regulations shall complete these self-evaluation
requirements within one year after becoming recipients of Federal
financial assistance.
(The information collection requirements contained in paragraph (c)
have been approved by the Office of Management and Budget under control
number 2900-0415)
(45 FR 63268, Sept. 24, 1980, as amended at 49 FR 32574, Aug. 15,
1984)
38 CFR 18.407 Designation of responsible employee and adoption of
grievance procedures.
(a) Designation of responsible employee. A recipient that employs
fifteen or more persons shall designate at least one person to
coordinate its efforts to comply with this part.
(b) Adoption of grievance procedures. A recipient that employs
fifteen or more persons shall adopt grievance procedures that
incorporate appropriate due process standards and that provide for the
prompt and equitable resolution of complaints alleging any action
prohibited by this part. Such procedures need not be established with
respect to complaints from applicants for employment or from applicants
for admission to postsecondary educational institutions.
38 CFR 18.408 Notice.
(a) A recipient that employs fifteen or more persons shall take
appropriate initial and continuing steps to notify participants,
beneficiaries, applicants, and employees, including those with impaired
vision or hearing, and unions or professional organizations holding
collective bargaining or professional agreements with the recipient that
it does not discriminate on the basis of handicap in violation of
section 504 and this part. The notification shall state, where
appropriate, that the recipient does not discriminate in admission or
access to, or treatment, or employment in, its programs and activities.
The notification shall also include an identification of the responsible
employee designated under 18.407. A recipient shall make the initial
notification required by this paragraph within 90 days of the effective
date of this part. Methods of initial and continuing notification may
include the posting of notices, publication in newspapers and magazines,
placement of notices in recipient's publication, and distribution of
memorandums or other written communications.
(b) If a recipient publishes or uses recruitment materials or
publications containing general information that it makes available to
participants, beneficiaries, applicants, or employees, it shall include
in those materials or publications a statement of the policy described
in paragraph (a) of this section. A recipient may meet the requirement
of this section either by including appropriate inserts in existing
materials and publications or by revising and reprinting the materials
and publications.
38 CFR 18.409 Administrative requirements for certain recipients.
The Secretary may require any recipient with fewer than fifteen
employees, or any class of such recipients, to comply with 18.407 and
18.408 in whole or in part, when the Secretary finds a violation of this
part or finds that such compliance will not significantly impair the
ability of the recipient or class of recipients to provide benefits or
services.
38 CFR 18.410 Effect of State or local law or other requirements and
effect of employment opportunities.
(a) The obligation to comply with this part is not obviated or
alleviated by the existence of any State law or other requirement that,
on the basis of handicap, imposes prohibitions or limits upon the
eligibility of qualified handicapped persons to receive services or to
practice any occupation or profession.
(b) The obligation to comply with this part is not obviated or
alleviated because employment opportunities in any occupation or
profession are or may be more limited for handicapped persons than for
nonhandicapped persons.
38 CFR 18.410 Employment Practices
38 CFR 18.411 Discrimination prohibited.
(a) General. (1) No qualified handicapped person shall, on the basis
of handicap, be subjected to discrimination in employment under any
program or activity to which this part applies.
(2) A recipient shall make all decisions concerning employment under
any program or activity to which this part applies in a manner which
ensures that discrimination on the basis of handicap does not occur and
may not limit, segregate, or classify applicants or employees in any way
that adversely affects their opportunities or status because of
handicap.
(3) A recipient may not participate in a contractual or other
relationship that has the effect of subjecting qualified handicapped
applicants or employees to discrimination in employment. The
relationships referred to in this section include relationships with
employment and referral agencies, with organizations providing or
administering fringe benefits to employees of the recipient, and with
organizations providing training and apprenticeship programs.
(b) Specific activities. Nondiscrimination in employment applies to:
(1) Recruitment, advertising, and the processing of applications for
employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion,
transfer, layoff, termination, right of return from layoff, and
rehiring;
(3) Rates of pay or other forms of compensation and changes in
compensation;
(4) Job assignments, job classifications, organizational structures,
position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment, whether or not
administered by the recipient;
(7) Selection and financial support for training, including
apprenticeship, professional meetings, conferences, and other related
activities, and selection for leaves of absence to pursue training;
(8) Employer sponsored activities, including social or recreational
programs; and
(9) Any other term, condition, or privilege of employment.
(c) Collective bargaining agreements. A recipient's obligation to
comply with this subpart is not affected by any inconsistent term of any
collective bargaining agreement to which it is a party.
38 CFR 18.412 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known
physical or mental limitations of a handicapped applicant or employee if
such accommodation would enable that person to perform the essential
functions of the job unless the recipient can demonstrate that the
accommodation would impose an undue hardship on the operation of its
program.
(b) Reasonable accommodation may include:
(1) Making facilities used by employees readily accessible to and
usable by handicapped persons; and
(2) Job restructuring, part-time or modified work schedules,
acquisition or modification of equipment or devices, the provision of
readers or interpreters and other similar actions.
(c) In determining under paragraph (a) of this section whether an
accommodation would impose an undue hardship on the operation of a
recipient's program, factors to be considered include:
(1) The overall size of the recipient's program with respect to
number of employees, number and type of facilities, and size of budget;
(2) The type of the recipient's operation, including the composition
and structure of the recipient's work force; and
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny any employment opportunity to a
qualified handicapped employee or applicant if the basis for denial is
the need to make reasonable accommodation to the physical or mental
limitations of the employee or applicant.
(45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26,
1986)
38 CFR 18.413 Employment criteria.
(a) A recipient may not use any employment test or other selection
criterion that screens out or tends to screen out handicapped persons or
any class of handicapped persons unless:
(1) The test score or other selection criterion, as used by the
recipient, is shown to be job-related for the position in question; and
(2) Alternative job-related tests or criteria that do not screen out
or tend to screen out as many handicapped persons are not shown by the
Secretary to be available.
(b) A recipient shall select and administer tests concerning
employment to best ensure that when administered to an applicant or
employee who has a handicap that impairs sensory, manual, or speaking
skills, the test results accurately reflect the applicant's or
employee's job skills, aptitude, or whatever other factor the test
purports to measure, rather than reflect the applicant's or employee's
impaired sensory, manual, or speaking skills (except when those skills
are the factors that the test purports to measure).
38 CFR 18.414 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a
recipient may not conduct a preemployment medical examination or may not
make preemployment inquiry of an applicant as to whether the applicant
is a handicapped person or as to the nature or severity of a handicap.
A recipient may, however, make preemployment inquiry into the
applicant's ability to perform job-related functions.
(b) When a recipient is taking remedial action to correct the effects
of past discrimination pursuant to 18.406(a), when a recipient is
taking voluntary action to overcome the effects of conditions that
resulted in limited participation in its federally assisted program or
activity pursuant to 18.406(b), or when a recipient is taking
affirmative action pursuant to section 503 of the Act, the recipient may
invite applicants for employment to indicate whether and to what extent
they are handicapped, provided that:
(1) The recipient states clearly on any written questionnaire used
for this purpose or makes clear orally if no written questionnaire is
used that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary or
affirmative action efforts; and
(2) The recipient states clearly that the information is being
requested on a voluntary basis, that it will be kept confidential as
provided in paragraph (d) of this section, that refusal to provide it
will not subject the applicant or employee to any adverse treatment, and
that it will be used only in accordance with this part.
(c) Nothing in this section shall prohibit a recipient from
conditioning an offer of employment on the results of a medical
examination conducted prior to the employee's entrance on duty, provided
that:
(1) All entering employees are subjected to such an examination
regardless of handicap, and (2) the results of such an examination are
used only in accordance with the requirements of this part.
(d) Information obtained in accordance with this section as to the
medical condition or history of the applicant shall be collected and
maintained on separate forms that shall be accorded confidentiality as
medical records, except that:
(1) Supervisors and managers may be informed regarding restrictions
on the work or duties of handicapped persons and regarding necessary
accommodations;
(2) First aid and safety personnel may be informed, where
appropriate, if the condition might require emergency treatment;
(3) Government officials investigating compliance with the Act shall
be provided relevant information upon request.
38 CFR 18.414 Program Accessibility
38 CFR 18.421 Discrimination prohibited.
No qualified handicapped person shall, because a recipient's
facilities are inaccessible to or unusable by handicapped persons, be
denied the benefits of, be excluded from participation in, or otherwise
be subjected to discrimination under any program or activity to which
this part applies.
38 CFR 18.422 Existing facilities.
(a) Program accessibility. A recipient shall operate each program or
activity to which this part applies so that the program or activity,
when viewed in its entirety, is readily accessible to handicapped
persons. This paragraph does not require a recipient to make each of
its existing facilities or every part of a facility accessible to and
usable by handicapped persons.
(b) Methods. A recipient may comply with the requirement of
paragraph (a) of this section through such measures as redesign of
equipment, reassignment of classes or other services to accessible
buildings, assignment of aids to beneficiaries, home visits, delivery of
health, or other social services at alternate accessible sites,
alteration of existing facilities and construction of new facilities in
conformance with 18.423 or any other methods that make its program or
activity accessible to handicapped persons. A recipient is not required
to make structural changes in existing facilities where other methods
are effective in making its programs or activities readily accessible to
handicapped persons. In choosing among available methods for complying
with paragraph (a) of this section, a recipient shall give priority to
methods that offer programs and activities to handicapped persons in the
most integrated setting appropriate.
(c) Small health, welfare or other social service providers, and
recipients that operate other than educational programs or activities.
If a recipient with fewer than fifteen employees finds after
consultation with a handicapped person seeking its services that there
is no method of complying with paragraph (a) of this section other than
making a significant alteration in its existing facilities, the
recipient may, as an alternative, refer the qualified handicapped person
to other providers whose services are accessible. Where referrals are
necessary, transportation costs shall not exceed costs to and from
recipients' programs.
(d) Time period. A recipient shall comply with paragraph (a) of this
section within 60 days of the effective date of this part except that
when structural changes in facilities are necessary, these changes shall
be made as soon as practicable, but not later than three years after the
effective date of this part.
(e) Transition plan. If structural changes to facilities are
necessary to meet the requirements of paragraph (a) of this section, a
recipient shall develop a transition plan within six months of the
effective date of this part setting forth the steps necessary to
complete such change. The plan shall be developed with the assistance
of interested persons, including handicapped persons or organizations
representing handicapped persons. A copy of the transition plan shall
be available for public inspection. The plan shall, at a minimum:
(1) Identify physical obstacles in the recipient's facilities that
limit the accessibility of its program or activity to handicapped
persons;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
full program accessibility and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the person responsible for implementation of the plan.
(f) Notice. The recipient shall implement procedures to ensure that
interested persons, including persons with impaired vision or hearing,
can obtain information concerning the existence and location of
services, activities, and facilities that are accessible to and usable
by handicapped persons.
(The information collection requirements contained in paragraph (e)
have been approved by the Office of Management and Budget under control
number 2900-0414)
(45 FR 63268, Sept. 24, 1980, as amended at 49 FR 32574, Aug. 15,
1984)
38 CFR 18.423 New construction.
(a) Design and construction. Each facility or part of a facility
constructed by, on behalf of, or for the use of a recipient shall be
designed and constructed so that the facility or part of the facility is
readily accessible to and usable by handicapped persons, if the
construction was commenced after the effective date of this part.
(b) Alteration. Each facility or part of a facility which is altered
by, on behalf of, or for the use of a recipient after the effective date
of this part in a manner that affects or could affect the usability of
the facility or part of the facility shall, to the maximum extent
feasible, be altered so that the altered portion of the facility is
readily accessible to and usable by handicapped persons.
(c) Conformance with Uniform Federal Accessibility Standards. (1)
Effective as of January 18, 1991, design, construction, or alteration of
buildings in conformance with sections 3-8 of the Uniform Federal
Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6)
shall be deemed to comply with the requirements of this section with
respect to those buildings. Departures from particular technical and
scoping requirements of UFAS by the use of other methods are permitted
where substantially equivalent or greater access to and usability of the
building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall
be interpreted to exempt from the requirements of UFAS only mechanical
rooms and other spaces that, because of their intended use, will not
require accessibility to the public or beneficiaries or result in the
employment or residence therein of persons with physical handicaps.
(3) This section does not require recipients to make building
alterations that have little likelihood of being accomplished without
removing or altering a load-bearing structural member.
(45 FR 63268, Sept. 24, 1980, as amended at 55 FR 52138, 52141, Dec.
19, 1990)
38 CFR 18.423 Elementary, Secondary, and Adult Education
38 CFR 18.431 Application.
Sections 18.431 through 18.439 apply to elementary, secondary, and
adult education programs and activities that receive or benefit from
Federal financial assistance from the Department of Veterans Affairs and
to recipients that operate or receive or benefit from Federal financial
assistance for the operation of such programs or activities.
38 CFR 18.432 Location and notification.
A recipient that operates a public elementary or secondary
educational program shall annually:
(a) Undertake to identify and locate every qualified handicapped
person residing in the recipient's jurisdiction who is not receiving a
public education; and
(b) Take appropriate steps to notify handicapped persons their
parents or guardians of the recipients's duty under 18.431 through
18.439.
38 CFR 18.433 Free appropriate public education.
(a) General. A recipient that operates a public elementary or
secondary education program shall provide a free appropriate public
education to each qualified handicapped person who is in the recipient's
jurisdiction, regardless of the nature or severity of the person's
handicap.
(b) Appropriate education. (1) The provision of an appropriate
education is the provision of regular or special education and related
aids and services that:
(i) Are designed to meet individual educational needs of handicapped
persons as adequately as the needs of nonhandicapped persons are met;
and
(ii) Are based upon adherence to procedures that satisfy the
requirements of 18.434, 18.435, and 18.436.
(2) Implementation of an individualized education program developed
in accordance with the Education of the Handicapped Act is one means of
meeting the standard established in paragraph (b)(1)(i) of this section.
(3) A recipient may place a qualified handicapped person in or refer
that person to a program other than the one that it operates as its
means of carrying out the requirements of 18.431 through 18.439. The
recipients remain responsible for ensuring that the requirements of
18.431 through 18.439 are met with respect to any qualified handicapped
person so placed or referred.
(c) Free education. (1) The provision of a free education is the
provision of educational and related services without cost to the
handicapped person, parents or guardian, except for those fees that are
imposed on nonhandicapped persons or their parents or guardian. It may
consist either of the provision of free services or, if a recipient
places a handicapped person in or refers that person to a program not
operated by the recipient as its means of carrying out the requirements
of 18.431 through 18.439, of payment for the costs of the program.
Funds available from any public or private agency may be used to meet
the requirements of this subpart. Nothing in this section shall be
construed to relieve an insurer or similar third party from an otherwise
valid obligation to provide or pay for services provided to a
handicapped person.
(2) If a recipient places a handicapped person in or refers that
person to a program not operated by the recipient as its means of
carrying out the requirements of this subpart, the recipient shall
ensure that adequate transportation to and from the program is provided
at no greater cost than would be incurred by the person, parents or
guardian if the person were placed in the program operated by the
recipient.
(3) If placement in a public or private residential program is
necessary to provide free appropriate public education to a handicapped
person because of his or her handicap, the program, including
non-medical care and room and board, shall be provided at no cost to the
person, parents or guardian.
(4) If a recipient has made available, in conformance with this
section and 18.434, a free appropriate public education to a
handicapped person and the person's parents or guardian chooses to place
the person in a private school, the recipient is not required to pay for
the person's education in the private school. Disagreements between a
parent or guardian and a recipient regarding whether the recipient has
made such a program available or regarding the question of financial
responsibility are subject to the due process procedures of 18.436.
(d) Compliance. A recipient may not exclude any qualified
handicapped person from a public elementary or secondary education after
the effective date of this part. A recipient that is not, on the
effective date of this part, in full compliance with the requirements of
paragraphs (a) through (c) of this section shall meet those requirements
at the earliest practicable time, but not later than October 1, 1981.
(45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26,
1986; 51 FR 12702, Apr. 15, 1986)
38 CFR 18.434 Education setting.
(a) Academic setting. A recipient shall educate, or shall provide
for the education of, each qualified handicapped person in its
jurisdiction with persons who are not handicapped to the maximum extent
appropriate to the needs of the handicapped person. A recipient shall
place a handicapped person in the regular educational environment
operated by the recipient unless it is demonstrated by the recipient
that the education of the person in the regular environment with the use
of supplementary aids and services cannot be achieved satisfactorily.
In deciding whether to place a person in a setting other than the
regular educational environment, a recipient shall consider the
proximity of the alternate setting to the person's home.
(b) Nonacademic settings. In providing or arranging for the
provision of nonacademic and extracurricular services and activities, a
recipient shall ensure that handicapped persons participate with
nonhandicapped persons in those activities and services to the maximum
extent appropriate to the needs of the handicapped person in question.
(c) Comparable facilities. If a recipient in compliance with
paragraph (a) of this section operates a facility that is identifiable
as being for handicapped persons, the recipient shall ensure that the
facility and the services and activities provided in that facility are
comparable to the other facilities, services, and activities of the
recipient.
38 CFR 18.435 Evaluation and placement.
(a) Preplacement evaluation. A recipient that operates a public
elementary or secondary education program shall conduct an evaluation of
any qualified person who, because of handicap, needs or is believed to
need special education or related services before taking any action
concerning the initial placement of the person in a regular or special
program and any subsequent change in placement.
(b) Evaluation procedures. Elementary, secondary, and adult
education programs and activities that receive or benefit from Federal
financial assistance shall establish standards and procedures for the
evaluation and placement of persons who, because of handicap, need or
are believed to need special education or related services which ensure
that:
(1) Tests and other evaluation materials have been validated for the
specific purpose for which they are used and are administered by trained
personnel in conformance with the instructions provided by their
producer;
(2) Tests and other evaluation materials include those tailored to
assess specific areas of educational need and not merely those which are
designed to provide a single general intelligence quotient; and
(3) Tests are selected and administered to best ensure that, when a
test is administered to a student with impaired sensory, manual, or
speaking skills, the test results accurately reflect the student's
aptitude or achievement level or whatever other factor the test purports
to measure, rather than reflect the student's impaired sensory, manual,
or speaking skills (except where those skills are the factors that the
test purports to measure.)
(c) Placement procedures. In interpreting evaluation data and in
making placement decisions, a recipient shall:
(1) Draw upon information from a variety of sources, including
aptitude and achievement tests, teacher recommendations, physical
condition, social or cultural background and adaptive behavior;
(2) Establish procedures to ensure that information obtained from all
sources is documented and carefully considered;
(3) Ensure that the placement decision is made by a group of persons,
including persons knowledgeable about the student, the meaning of the
evaluation data and the placement options; and
(4) Ensure that the placement decision is made in accordance with
18.434.
(d) Reevaluation. A recipient to which this section applies shall
establish procedures, in accordance with paragraph (b) of this section,
for periodic reevaluation of students who have been provided special
education and related services. A reevaluation procedure consistent
with the Education for the Handicapped Act is one means of meeting this
requirement.
38 CFR 18.436 Procedural safeguards.
(a) A recipient that operates a public elementary or secondary
education program shall implement a system of procedural safeguards with
respect to actions regarding the identification, evaluation, or
educational placement of persons who, because of handicap, need or are
believed to need special instruction or related services. The system
shall include:
(1) Notice;
(2) An opportunity for the parents or guardian of the person to
examine relevant records;
(3) An impartial hearing with opportunity for participation by the
person's parents or guardian and representation by counsel; and
(4) Review procedure.
(b) Compliance with the procedural safeguards of section 615 of the
Education of the Handicapped Act is one means of meeting this
requirement.
38 CFR 18.437 Nonacademic services.
(a) General. (1) Elementary, secondary, and adult education programs
that receive or benefit from Federal financial assistance shall provide
nonacademic and extracurricular services and activities in a manner
which gives handicapped students an equal opportunity for participation
in these services and activities.
(2) Nonacademic and extracurricular services and activities may
include counseling services, physical recreational athletics,
transportation, health services, recreational activities, special
interest groups or clubs sponsored by the recipient, referrals to
agencies which provide assistance to handicapped persons, and employment
of students, including both employment by the recipient and assistance
in making available outside employment.
(b) Counseling services. Elementary, secondary, and adult education
programs that receive or benefit from Federal financial assistance and
that provide personal, academic, or vocational counseling, guidance, or
placement services to their students shall provide these services
without discrimination on the basis of handicap and shall ensure that
qualified handicapped students are not counseled toward more restrictive
career objectives than are nonhandicapped students with similar
interests and abilities.
(c) Physical education and athletics. (1) In providing physical
education courses and athletics and similar programs and activities to
any of its students, an elementary, secondary, or adult education
program or activity that receives or benefits from Federal financial
assistance may not discriminate on the basis of handicap. A recipient
that offers physical education courses or that operates or sponsors
interscholastic, club, or intramural activities shall provide to
qualified handicapped students an equal opportunity for participation in
these activities.
(2) A recipient may offer to handicapped students physical education
and athletic activities that are separate or different from those
offered to nonhandicapped students only if separation or differentiation
is consistent with the requirements of 18.434 and only if no qualified
handicapped student is denied the opportunity to compete for teams or to
participate in courses that are not separate or different.
38 CFR 18.438 Adult education programs.
A recipient that operates an adult education program or activity may
not, on the basis of handicap, exclude qualified handicapped persons
from the program or activity. The recipient shall take into account the
needs of these persons in determining the aid, benefits, or services to
be provided under the program or activity.
38 CFR 18.439 Private education programs.
(a) A recipient that operates a private elementary or secondary
education program may not on the basis of handicap, exclude a qualified
handicapped person from that program if the person can, with minor
adjustments, be provided an appropriate education, as defined in
18.433(b)(1), within the recipient's program.
(b) A recipient may not charge more for providing an appropriate
education to handicapped persons than to nonhandicapped persons except
to the extent that any additional charge is justified by a substantial
increase in cost to the recipient.
(c) A recipient to which this section applies that operates special
education programs shall operate those programs in accordance with
18.435 and 18.436. Each recipient to which this section applies is
subject to 18.434, 18.437, and 18.438.
38 CFR 18.439 Postsecondary Education
38 CFR 18.441 Application.
Sections 18.441 through 18.447 apply to postsecondary education
programs and activities that receive or benefit from Federal financial
assistance from the Department of Veterans Affairs and to recipients
that operate or receive or benefit from Federal financial assistance for
the operation of such programs or activities.
38 CFR 18.442 Admissions and recruitment.
(a) General. Qualified handicapped persons may not, on the basis of
handicap, be denied admission or be subjected to discrimination in
admission or recruitment by a recipient.
(b) Admission. In administering its admission policies, a recipient;
(1) May not apply limitations on the number or proportion of
handicapped persons who may be admitted;
(2) May not use any test or criterion for admission that has a
disproportionate, adverse effect on handicapped persons or any class of
handicapped persons unless:
(i) The test or criterion, as used by the recipient, has been
validated as a predictor of success in the education program or activity
in question; and
(ii) Alternate tests or criteria that have a less disproportionate,
adverse effect are not shown by the Secretary to be available;
(3) Shall assure itself that:
(i) Admissions tests are selected and administered to best ensure
that, when a test is administered to an applicant who has a handicap
that impairs sensory, manual, or speaking skills, the test results
accurately reflect the applicant's aptitude or achievement level or
whatever other factors the test purports to measure, rather than reflect
the applicant's impaired sensory, manual, or speaking skills (except
where those skills are the factors that the test purports to measure);
(ii) Admissions tests that are designed for persons with impaired
sensory, manual, or speaking skills are offered as often and in as
timely a manner as are other admissions tests; and
(iii) Admissions tests are administered in facilities that, on the
whole, are accessible to handicapped persons; and
(4) Except as provided in paragraph (c) of this section, may not make
preadmission inquiries as to whether an applicant for admission is a
handicapped person. After admission, the recipient may inquire on a
confidential basis as to handicaps that may require accommodation.
(c) Preadmission inquiry exception. When a recipient is taking
remedial action to correct the effects of past discrimination under
18.406(a) or when a recipient is taking voluntary action to overcome the
effects of conditions that resulted in limited participation in its
federally assisted program or activity under 18.406(b), the recipient
may invite applicants for admission to indicate whether and to what
extent they are handicapped.
(1) The recipient shall state clearly on any written questionnaire
used for this purpose or make clear orally if no written questionnaire
is used that the information requested is intended for use solely in
connection with its remedial action obligations or its voluntary action
efforts; and
(2) The recipient shall state clearly that the information is being
requested on a voluntary basis, that it will be kept confidential, that
refusal to provide it will not subject the applicant to any adverse
treatment, and that it will be used only in accordance with this part.
(d) Validity studies. For the purpose of paragraph (b)(2) of this
section, a recipient may base prediction equations on first year grades,
but shall conduct periodic validity studies against the criterion of
overall success in the education program or activity in question to
monitor the general validity of the test scores.
38 CFR 18.443 General treatment of students.
(a) No qualified handicapped student shall, on the basis of handicap,
be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any academic, research,
occupational training, housing, health insurance, counseling, financial
aid, physical education, athletics, recreation, transportation, other
extracurricular, or other program or activity operated by a recipient to
which this subpart applies.
(b) A recipient that considers participation by students in education
programs or activities not operated wholly by the recipient as part of,
or equivalent to, an education program or activity operated by the
recipient shall assure itself that the other education program or
activity, as a whole, provides an equal opportunity for the
participation of qualified handicapped persons.
(c) A recipient to which this subpart applies may not, on the basis
of handicap, exclude any qualified handicapped student from any course,
course of study, or other part of its education program or activity.
(d) A recipient shall operate its programs and activities in the most
integrated setting appropriate.
38 CFR 18.444 Academic adjustments.
(a) Academic requirements. A recipient shall make necessary
modifications to its academic requirements to ensure that these
requirements do not discriminate or have the effect of discriminating,
on the basis of handicap, against a qualified handicapped applicant or
student. Modifications may include changes in the length of time
permitted for the completion of degree requirements, substitution of
specific courses required for the completion of degree requirements, and
adaptation of the manner in which specific courses are conducted.
Academic requirements that the recipient can demonstrate are essential
to the program of instruction being pursued by the student or to any
directly related licensing requirement will not be regarded as
discriminatory within the meaning of this section.
(b) Other rules. A recipient may not impose upon handicapped
students other rules, such as the prohibition of tape recorders in
classrooms or guide dogs in campus buildings, that have the effect of
limiting the participation of handicapped students in the recipient's
education program or activity.
(c) Course examinations. In its course examinations or other
procedures for evaluating students' academic achievement in its program,
a recipient shall provide methods for evaluating the achievement of
students who have a handicap that impairs sensory, manual, or speaking
skills that will best ensure that the results of the evaluation
represent the students' achievement in the course, rather than reflect
the students' impaired sensory, manual, or speaking skills (except where
such skills are the factors that the test purports to measure).
(d) Auxiliary aids. (1) A recipient shall ensure that no qualified
handicapped student is denied the benefits of, excluded from
participation in, or otherwise subjected to discrimination under the
education program or activity operated by the recipient because of the
absence of educational auxiliary aids for students with impaired
sensory, manual, or speaking skills.
(2) Auxiliary aids may include taped texts, interpreters or other
effective methods of making orally delivered materials available to
students with hearing impairments, readers in libraries for students
with visual impairments, classroom equipment adapted for use by students
with manual impairments, and other similar services and actions.
Recipients need not provide attendants, individually prescribed devices,
readers for personal use or study, or other devices or services of a
personal nature.
38 CFR 18.445 Housing.
(a) Housing provided by a recipient. A recipient that provides
housing to its nonhandicapped students shall provide comparable,
convenient, and accessible housing to qualified handicapped students at
the same cost as to others. At the end of the transition period
provided for in 18.422(e), this housing shall be available in
sufficient quantity and variety so that the scope of handicapped
students' choice of living accommodations is, as a whole, comparable to
that of nonhandicapped students.
(b) Other housing. A recipient that assists any agency,
organization, or person in making housing available to any of its
students shall assure itself that such housing is, as a whole, made
available in a manner that does not result in discrimination on the
basis of handicap.
38 CFR 18.446 Financial and employment assistance to students.
(a) Provision of financial assistance. (1) In providing financial
assistance to qualified handicapped persons, a recipient may not:
(i) On the basis of handicap, provide less assistance than is
provided to nonhandicapped persons, limit eligibility for assistance, or
otherwise discriminate; or
(ii) Assist any entity or person that provides assistance to any of
the recipient's students in a manner that discriminates against
qualified handicapped persons on the basis of handicap.
(2) A recipient may administer or assist in the administration of
scholarships, fellowships, or other forms of financial assistance
established under wills, trusts, bequests, or similar legal instruments
that require awards to be made on the basis of factors that discriminate
or have the effect of discriminating on the basis of handicap only if
the overall effect of the award of scholarships, fellowships, and other
forms of financial assistance is not discriminatory on the basis of
handicap.
(b) Assistance in making available outside employment. A recipient
that assists any agency, organization, or person in providing employment
opportunities to any of its students shall assure itself that these
employment opportunities, as a whole, are made available in a manner
that would not violate 18.411 through 18.414 if the opportunities were
provided by the recipient.
(c) Employment of students by recipients. A recipient that employs
any of its students may not do so in a manner that violates 18.411
through 18.414.
38 CFR 18.447 Nonacademic services.
(a) Physical education and athletics. (1) In providing physical
education courses and athletics and similar programs and activities to
any of its students, a recipient may not discriminate on the basis of
handicap. A recipient that offers physical education courses or that
operates or sponsors intercollegiate, club or intramural athletics shall
provide to qualified handicapped students an equal opportunity for
participation in these activities.
(2) A recipient may offer to handicapped students physical education
and athletic activities that are separate or different only if
separation or differentiation is consistent with the requirements of
18.443(d) and only if no qualified handicapped student is denied the
opportunity to compete for teams or to participate in courses that are
not separate or different.
(b) Counseling and placement services. A recipient that provides
personal, academic, or vocational counseling, guidance, or placement
services to its students shall provide these services without
discrimination on the basis of handicap. The recipient shall ensure
that qualified handicapped students are not counseled toward more
restrictive career objectives than are nonhandicapped students with
similar interests and abilities. This requirement does not preclude a
recipient from providing factual information about licensing and
certification requirements that may present obstacles to handicapped
persons in their pursuit of particular careers.
(c) Social organizations. A recipient that provides significant
assistance to fraternities, sororities, or similar organizations shall
assure itself that the membership practices of these organizations do
not permit discrimination otherwise prohibited by 18.441 through
18.447.
38 CFR 18.447 Health and Social Services
38 CFR 18.451 Application.
Subpart F applies to health, and other social service programs and
activities that receive or benefit from Federal financial assistance
from the Department of Veterans Affairs and to recipients that operate
or receive or benefit from Federal financial assistance for the
operation of such programs or activities.
38 CFR 18.452 Health and other social services.
(a) General. In providing health, or other social services or
benefits, a recipient may not, on the basis of handicap:
(1) Deny a qualified handicapped person these benefits or services;
(2) Give a qualified handicapped person the opportunity to receive
benefits or services that are not equal to those offered nonhandicapped
persons.
(3) Provide a qualified handicapped person with benefits or services
that are not as effective (as defined in 18.404(b)(2)) as the benefits
or services provided to others;
(4) Provide benefits or services in a manner that limits or has the
effect of limiting the participation of qualified handicapped persons;
or
(5) Provide different or separate benefits or services to handicapped
persons except where necessary to provide qualified handicapped persons
with benefits and services that are as effective as those provided to
others.
(b) Notice. A recipient that provides notice concerning benefits or
services or written material concerning waivers of rights of consent to
treatment shall ensure that qualified handicapped persons, including
those with impaired sensory or speaking skills, are not denied effective
notice because of their handicap.
(c) Emergency treatment for the hearing impaired. A recipient
hospital that provides health services or benefits shall establish a
procedure for effective communication with persons with impaired hearing
for the purpose of providing emergency care.
(d) Auxiliary aids. (1) A recipient that employs fifteen or more
persons shall provide appropriate auxiliary aids to persons with
impaired sensory, manual, or speaking skills, where necessary to give
these persons an equal opportunity to benefit from the service in
question.
(2) The Secretary may require recipients with fewer than fifteen
employees to provide auxiliary aids where the provision of aids would
not significantly impair the ability of the recipient to provide its
benefits or services.
(3) Auxiliary aids may include brailled and taped material,
interpreters, and aids for persons with impaired hearing or vision.
38 CFR 18.453 Drug and alcohol addicts.
A recipient that operates a general hospital or outpatient facility
may not discriminate, with regard to a drug or alcohol abuser or
alcoholic who is suffering from a medical condition, in the admission of
that person for treatment of the medical condition, or in the treatment
of the medical condition because of the person's drug or alcohol abuse
or alcoholism.
38 CFR 18.454 Education of institutionalized persons.
A recipient that operates or supervises a program or activity for
persons who are institutionalized because of handicap and is responsible
for providing training shall ensure that each qualified handicapped
person, as defined in 18.403(k)(2), in its program or activity is
provided an appropriate education, as defined in 18.433(b). Nothing in
this section shall be interpreted as altering in any way the obligations
of recipients under 18.431 through 18.439.
(45 FR 63268, Sept. 24, 1980; 51 FR 12702, Apr. 15, 1986)
38 CFR 18.454 Procedures
38 CFR 18.461 Procedures.
The procedural provisions applicable to Title VI of the Civil Rights
Act of 1964 apply to this part. These procedures are found in 18.6
through 18.11 and part 18b of this chapter.
38 CFR 18.461 Appendix A to Subpart D of Part 18 -- Statutory Provisions to Which This Part Applies
38 CFR 18.461 Pt. 18, Subpt. D., App. A
1. Payments to State Homes (38 U.S.C. 1741-1743).
2. State home facilities for furnishing domiciliary, nursing home,
and hospital care (38 U.S.C. 8131-8137).
3. Transfers for nursing home care; adult day health care (38 U.S.C.
1720).
4. Sharing of medical facilities, equipment, and information (38
U.S.C. 8151-8157).
5. Assistance in establishing new state medical schools, grants to
affiliated medical schools; assistance to health manpower training
institutions (38 U.S.C. Chapter 82).
6. Approval of educational institutions (38 U.S.C. 104).
7. Medical care for survivors and dependents of certain veterans (38
U.S.C. 1713).
8. Space and office facilities for representatives of State
employment service (38 U.S.C. 7725(4)).
9. Space and office facilities for representatives of recognized
national service organizations (38 U.S.C. 5902(a)(2)).
10. All-volunteer force educational assistance, vocational
rehabilitation post-Vietnam era veterans educational assistance;
veterans educational assistance, survivors' and dependents' educational
assistance, and administration of educational benefits (38 U.S.C.
Chapters 30, 31, 32, 34, 35 and 36 respectively).
11. Treatment and rehabilitation for alcohol or drug dependence or
abuse disabilities (38 U.S.C. 1720A).
12. Aid to States for establishment, expansion, and improvement of
veterans cemeteries (38 U.S.C. 2408).
13. Department of Veterans Affairs health professional scholarship
program (38 U.S.C. 7601-7655).
14. Emergency veterans job training (Pub. L. 98-77, 97 Stat.
443-452).
(45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26,
1986; 51 FR 12702, Apr. 15, 1986)
38 CFR 18.461 Subpart E -- Nondiscrimination on the Basis of Age
Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C.
6101, et seq. ; 45 CFR part 90 (1979).
Source: 50 FR 34133, Aug. 23, 1985, unless otherwise noted.
38 CFR 18.461 General
38 CFR 18.501 Purpose.
The purpose of these regulations is to set out Department of Veterans
Affairs (VA) policies and procedures under the Age Discrimination Act of
1975 and the governmentwide age discrimination regulations at 45 CFR
part 90. The Act and the governmentwide regulations prohibit
discrimination on the basis of age in programs or activities receiving
Federal financial assistance. The Act and the governmentwide
regulations permit federally assisted programs and activities, and
recipients of Federal funds, to continue to use age distinctions and
factors other than age which meet the requirements of the Act and its
implementing regulations.
(Authority: 42 U.S.C. 6101-6107)
(50 FR 34133, Aug. 23, 1985, as amended at 54 FR 34984, Aug. 23,
1989)
38 CFR 18.502 Application.
(a) These regulations apply to any program or activity receiving
Federal financial assistance provided by VA directly or through another
recipient.
(b) These regulations do not apply to:
(1) An age distinction contained in that part of a Federal, State, or
local statute or ordinance adopted by an elected, general purpose
legislative body which:
(i) Provides any benefits or assistance to persons based on age; or
(ii) Establishes criteria for participation in age-related terms; or
(iii) Describes intended beneficiaries or target groups in
age-related terms.
(2) Any employment practice of any employer, employment agency, labor
organization, or any labor-management joint apprenticeship training
program, except any program or activity receiving Federal financial
assistance for public service employment under the Job Training
Partnership Act, 29 U.S.C. 1501, et seq.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.503 Definitions.
As used in these regulations:
(a) Act means the Age Discrimination Act of 1975, as amended (Title
III of Pub. L. 94-135, 42 U.S.C. 6101-6107).
(b) Action means any act, activity, policy, rule, standard, or method
of administration; or the use of any policy, rule, standard, or method
of administration.
(c) Secretary means the Secretary of Veterans Affairs or designees.
(d) Age means how old a person is, or the number of elapsed years
from the date of a person's birth.
(e) Age discrimination means unlawful treatment based on age.
(f) Age distinction means any action using age or an age-related
term.
(g) Age-related term means a word or words which necessarily imply a
particular age or range of ages (for example, children, adult, older
persons, but not student).
(h) Day means calendar day.
(i) Federal financial assistance means any grant, entitlement, loan,
cooperative agreement, contract (other than a procurement contract or a
contract of insurance or guaranty), or any other arrangement by which a
Federal agency or department provides or otherwise makes available
assistance in the form of:
(1) Funds; or
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of property,
including:
(i) Transfers or leases of property for less than fair market value
or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of property if the
Federal share of its market value is not returned to the Federal
Government.
(j) Recipient means any State or its political subdivision, any
instrumentality of a State or its political subdivision, any public or
private agency, institution, organization, or other entity, or any
person to which Federal financial assistance is extended, directly or
through another recipient. Recipient includes any successor, assignee,
or transferee, but excludes the ultimate beneficiary of the assistance.
(k) Subrecipient means any of the entities in the definition of
recipient to which a recipient extends or passes on Federal financial
assistance. A subrecipient is generally regarded as a recipient of
Federal financial assistance and has all the duties of a recipient in
these regulations.
(l) United States means the fifty States, the District of Columbia,
Puerto Rico, the Virgin Islands, the Canal Zone, the Trust Territories
of the Pacific Islands, the Northern Marianas, and the territories and
possessions of the United States.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.503 Standards for Determining Age Discrimination
38 CFR 18.511 Rules against age discrimination.
The rules in this section are limited by the exceptions contained in
18.513 and 18.514 of these regulations.
(a) General rule. No person in the United States shall, on the basis
of age, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under, any program or activity receiving
Federal financial assistance.
(b) Specific rules. A recipient may not, in any program or activity
receiving Federal financial assistance, directly or through contractual
licensing, or other arrangements, use age distinctions or take any other
actions which have the effect, on the basis of age, of:
(1) Excluding individuals from, denying them the benefits of, or
subjecting them to discrimination under, a program or activity receiving
Federal financial assistance; or
(2) Denying or limiting individuals in their opportunity to
participate in any program or activity receiving Federal financial
assistance.
(c) The specific forms of age discrimination listed in paragraph (b)
of this section do not necessarily constitute a complete list.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.512 Definitions of ''normal operation'' and ''statutory
objective.''
For the purpose of these regulations, the terms normal operation and
statutory objective shall have the following meaning:
(a) Normal operation means the operation of a program or activity
without significant changes that would impair its ability to meet its
objectives.
(b) Statutory objective means any purpose of a program or activity
expressly stated in any Federal statute, State statute, or local statute
or ordinance adopted by an elected, general purpose legislative body.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.513 Exceptions to the rules against age discrimination;
normal operation or statutory objective of any program or activity.
A recipient is permitted to take an action, otherwise prohibited by
18.511, if the action reasonably takes into account age as a factor
necessary to the normal operation or the achievement of any statutory
objective of a program or activity. An action reasonably takes into
account age as a factor necessary to the normal operation or the
achievement of any statutory objective of a program or activity, if:
(a) Age is used as a measure or approximation of one or more other
characteristics; and
(b) The other characteristic(s) must be measured or approximated in
order for the normal operation of the program or activity to continue,
or to achieve any statutory objective of the program or activity; and
(c) The other characteristic(s) can be reasonably measured or
approximated by the use of age; and
(d) The other characteristic(s) are impractical to measure directly
on an individual basis.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.514 Exceptions to the rules against age discrimination;
reasonable factors other than age.
A recipient is permitted to take an action otherwise prohibited by
18.511 which is based on a factor other than age, even though that
action may have a disproportionate effect on persons of different ages.
An action may be based on a factor other than age only if the factor
bears a direct and substantial relationship to the normal operation of
the program or activity or to the achievement of a statutory objective.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.515 Burden of proof.
The burden of proving that an age distinction or other action falls
within the exceptions outlined in 18.513 and 18.514 is on the
recipient of Federal financial assistance.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.516 Affirmative action by recipients.
Even in the absence of a finding of discrimination, a recipient may
take affirmative action to overcome the effects of conditions that
resulted in limited participation in the recipient's program or activity
on the basis of age.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.516 Responsibilities of Department of Veterans Affairs Recipients
38 CFR 18.531 General responsibilities.
Each VA recipient must ensure that its programs and activities are in
compliance with the Act and these regulations.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.532 Notice of subrecipients.
Where a recipient passes on Federal financial assistance from VA to
programs and activities of subrecipients, the recipient shall provide
the subrecipients written notice of their obligations under the Act and
these regulations with respect to such programs and activities.
(Approved by the Office of Management and Budget under control number
2900-0400)
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.533 Assurance of compliance and recipient assessment of age
distinctions.
(a) Each recipient of Federal financial assistance from VA shall sign
a written assurance as specified by the Secretary that it will comply
with the Act and these regulations.
(b) Recipient assessment of age distinctions. (1) As part of a
compliance review under 18.541 or complaint investigation under
18.544, the Secretary may require a recipient employing the equivalent
of 15 of more employees to complete a written self-evaluation, in a
manner specified by the responsible agency official, of any age
distinction imposed in its programs or activities receiving Federal
financial assistance from VA to assess the recipient's compliance with
the Act.
(2) Whenever an assessment indicates a violation of the Act or these
regulations, the recipient shall take corrective action.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.534 Information requirements.
Each recipient shall:
(a) Make available upon request to VA information necessary to
determine whether the recipient is complying with the Act and these
regulations.
(b) Permit reasonable access by VA to the books, records, accounts,
and other recipient facilities and sources of information to the extent
necessary to determine whether the recipient is in compliance with the
Act and these regulations.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.534 Investigation, Conciliation and Enforcement Procedures
38 CFR 18.541 Compliance reviews.
(a) VA may conduct compliance reviews and preaward reviews of
recipients or use other similar procedures that will permit it to
investigate and correct violations of the Act and these regulations. VA
may conduct these reviews even in the absence of a complaint against a
recipient. The review may be as comprehensive as necessary to determine
whether a violation of these regulations has occurred.
(b) If a compliance review or preaward review indicates a violation
of the Act or these regulations, VA will attempt to achieve voluntary
compliance with the Act. If voluntary compliance cannot be achieved, VA
may institute enforcement proceedings as described in 18.546.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.542 Complaints.
(a) Any person, individually or as a member of a class or on behalf
of others, may file a complaint with VA alleging discrimination
prohibited by the Act or these regulations based on an action occurring
on or after July 1, 1979. A complainant shall file a complaint within
180 days from the date the complainant first had knowledge of the
alleged act of discrimination. However, for good cause shown, VA may
extend this time limit. Complaints may be submitted to the Director,
Office of Equal Opportunity (06B), Department of Veterans Affairs, 810
Vermont Avenue, NW., Washington, DC 20420.
(b) VA will attempt to facilitate the filing of complaints wherever
possible, including taking the following measures:
(1) Acknowledging receipt and acceptance of a complaint in writing.
(2) Accepting as a sufficient complaint, any written statement which
identifies the parties involved and the date the complainant first had
knowledge of the alleged violation, describes generally the action or
practice complained of, and is signed by the complainant.
(3) Freely permitting a complainant to add information to the
complaint to meet the requirements of a sufficient complaint.
(4) Widely disseminating information regarding the obligations of
recipients under the Act and these regulations.
(5) Notifying the complainant and the recipient of their rights and
obligations under the complaint procedure, including the right to have a
representative at all stages of the complaint procedure.
(6) Notifying the complainant and the recipient (or their
representatives) of their right to contact VA for information and
assistance regarding the complaint resolution process.
(c) VA will refer a complaint of discrimination based on age to
another appropriate Federal agency when the complaint is outside the
jurisdiction of VA. VA will notify the complainant in writing that the
complaint has been referred; explain the reason why the complaint is
not within the jurisdiction of VA; and give the complainant the name,
agency, and address of the official to whom the complaint was referred.
(Approved by the Office of Management and Budget under control number
2900-0401)
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.543 Mediation.
(a) Referral of complaints for mediation. VA will refer to the
Federal Mediation and Conciliation Service all complaints that:
(1) Fall within the jurisdiction of the Act and these regulations;
and
(2) Contain all information necessary for further processing.
(b) Both the complainant and the recipient shall participate in the
mediation process to the extent necessary to reach an agreement or make
an informed judgment that an agreement is not possible. However, the
recipient and the complainant need not meet with the mediator at the
same time.
(c) If the complainant and the recipient reach an agreement, the
mediator shall prepare a written statement of the agreement and have the
complainant and the recipient sign it. The mediator shall send a copy
of the agreement to VA. VA will take no further action on the complaint
unless the complainant or the recipient fails to comply with the
agreement.
(d) The mediator shall protect the confidentiality of all information
obtained in the course of the mediation process. No mediator shall
testify in any adjunctive proceeding, produce any document, or otherwise
disclose any information obtained in the course of the mediation process
without prior approval of the head of the mediation agency.
(e) VA will use the mediation process for a maximum of 60 days after
the responsible agency official receives a complaint.
(f) Mediation ends if:
(1) 60 days elapse from the time the responsible agency official
receives the complaint; or
(2) Prior to the end of that 60-day period, an agreement is reached;
or
(3) Prior to the end of that 60-day period, the mediator determines
that an agreement cannot be reached.
(g) The mediator shall return unresolved complaints to VA.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.544 Investigation.
(a) Informal investigation. (1) VA will investigate complaints that
are reopened because of a violation of a mediation agreement.
(2) As part of the initial investigation VA will use informal fact
finding methods, including joint or separate discussions with the
complainant and recipient to establish the facts and, if possible,
settle the complaint on terms that are mutually agreeable to the
parties. VA may seek the assistance of any involved State program
agency.
(3) VA will put any agreement in writing and have it signed by the
parties and an authorized official from the VA.
(4) The settlement shall not affect the operation of any other
enforcement effort of VA, including compliance reviews and investigation
of other complaints which may involve the recipient.
(5) A settlement need not contain an admission of discrimination or
other wrongdoing by the recipient nor should it be considered a finding
of discrimination against the recipient.
(b) Formal investigation. If VA cannot resolve the complaint through
informal investigation, it will begin to develop formal findings through
further investigation of the complaint. If the investigation indicates
a violation of these regulations, VA will attempt to obtain voluntary
compliance. If voluntary compliance cannot be achieved, VA may
institute enforcement proceedings as described in 18.546.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.545 Prohibition against intimidation or retaliation.
A recipient may not engage in acts of intimidation or retaliation
against any person who:
(a) Attempts to assert a right protected by the Act or these
regulations; or
(b) Cooperates in any mediation, investigation, hearing, or other
part of VA's investigation, conciliation, and enforcement process.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.546 Compliance procedure.
(a) VA may enforce the Act and these regulations through:
(1) Termination of Federal financial assistance from VA with respect
to a recipient's program or activity that has violated the Act or these
regulations. The determination of the recipient's violation may be made
only after a recipient has had an opportunity for a hearing on the
record before an administrative law judge. Therefore, cases which are
settled in mediation, or prior to a hearing, will not involve
termination of a recipient's Federal financial assistance from VA.
(2) Any other means authorized by law including but not limited to:
(i) Referral to the Department of Justice for proceedings to enforce
any rights of the United States or obligations of the recipient created
by the Act or these regulations.
(ii) Use of any requirement of or referral to any Federal, State, or
local government agency that will have the effect of correcting a
violation of the Act or these regulations.
(b) VA will limit any termination under paragraph (a)(1) of this
section to the particular program or activity or part of such program
and activity of a recipient that VA finds to be in violation of the Act
or these regulations. VA will not base any part of a termination on a
finding with respect to any program or activity of the recipient which
does not receive Federal financial assistance from VA.
(c) VA will take no action under paragraph (a) of this section until:
(1) The Secretary has advised the recipient of its failure to comply
with the Act and these regulations and has determined that voluntary
compliance cannot be obtained.
(2) Thirty days have elapsed after the Secretary has sent a written
report of the circumstances and grounds of the action to the committees
of the Congress having legislative jurisdiction over the Federal program
or activity involved. The Secretary will file a report whenever any
action is taken under paragraph (a) of this section.
(d) VA also may defer granting new Federal financial assistance from
VA to a recipient when a hearing under paragraph (a)(1) of this section
is initiated.
(1) New Federal financial assistance from VA includes all assistance
for which VA requires an application or approval, including renewal or
continuation of existing activities, or authorization of new activities
during the deferral period. New Federal financial assistance from VA
does not include increases in funding resulting solely from a change in
the formula or method of computing awards, nor does it include
assistance approved prior to the beginning of a hearing under paragraph
(a)(1) of this section.
(2) VA will not begin a deferral until the recipient has received a
notice of an opportunity for a hearing under paragraph (a)(1) of this
section. VA will not continue a deferral for more than 60 days unless a
hearing has begun within that time or the time for beginning the hearing
has been extended by mutual consent of the recipient and the Secretary.
VA will not continue a deferral for more than 30 days after the close of
the hearing, unless the hearing results in a finding against the
recipient.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.547 Hearings, decisions, post-termination proceedings.
Certain VA procedural provisions applicable to Title VI of the Civil
Rights Act of 1964 apply to VA enforcement of these regulations. They
are found at 18.9 through 18.11 and part 18b of this title.
(Authority: 42 U.S.C. 6101-1607)
38 CFR 18.548 Remedial action by recipient.
Where VA finds that a recipient has discriminated on the basis of
age, the recipient shall take any remedial action that VA may require to
overcome the effects of the discrimination. If another recipient
exercises control over the recipient that has discriminated, VA may
require both recipients to take remedial action.
(Authority: 42 U.S.C. 6101-1607)
38 CFR 18.549 Alternate funds disbursal procedure.
(a) When VA withholds funds from a recipient under these regulations,
the Secretary may disburse the withheld funds directly to an alternate
recipient: Any public or non-profit private organization or agency, or
State or political subdivision of the State.
(b) The Secretary will require any alternate recipient to
demonstrate;
(1) The ability to comply with these regulations; and
(2) The ability to achieve the goals of the Federal statute
authorizing the program or activity.
(Authority: 42 U.S.C. 6101-1607)
38 CFR 18.550 Exhaustion of administrative remedies.
(a) A complainant may file a civil action following the exhaustion of
administrative remedies under the Act. Administrative remedies are
exhausted if:
(1) 180 days have elapsed since the complainant filed the complaint
and VA has made no finding with regard to the complaint; or
(2) VA issues any finding in favor of the recipient.
(b) If VA fails to make a finding within 180 days or issues a finding
in favor of the recipient, VA will:
(1) Promptly advise the complainant of this fact; and
(2) Advise the complainant of his or her right to bring a civil
action for injunctive relief; and
(3) Inform the complainant that:
(i) The complainant may bring a civil action only in a United States
district court for the district in which the recipient is found or
transacts business;
(ii) A complainant prevailing in a civil action has the right to be
awarded the costs of the action, including reasonable attorney's fees,
but the complainant must demand these costs in the complaint;
(iii) Before commencing the action, the complainant shall give 30
days notice by registered mail to the Secretary, the Attorney General of
the United States, and the recipient;
(iv) The notice must state: The alleged violation of the Act; the
relief requested; the court in which the complainant is bringing the
action; and, whether or not attorney's fees are demanded in the event
the complainant prevails; and
(v) The complainant may not bring action if the same alleged
violations of the Act by the same recipient is the subject of a pending
action in any court of the United States.
(Authority: 42 U.S.C. 6101-6107)
38 CFR 18.550 Pt. 18, Subpt. E, App. A
38 CFR 18.550 Appendix A to Subpart E of Part 18 -- Statutory
Provisions to Which This Subpart Applies
1. Approval of educational institutions (38 U.S.C. 104).
2. Space and office facilities for representatives of State
employment services (38 U.S.C. 7725(1)).
3. Medical care for survivors and dependents of certain veterans (38
U.S.C. 1713).
4. Transfers for nursing home care; adult day health care (38 U.S.C.
1720).
5. Treatment and rehabilitation for alcohol or drug dependence or
abuse disabilities (38 U.S.C. 1720A).
6. Payments to State Homes (38 U.S.C. 1741-1743).
7. Aid to States for establishment, expansion, and improvement of
veterans' cemeteries (38 U.S.C. 2408).
8. Vocational Rehabilitation; Post-Vietnam Era Veterans' Educational
Assistance; Survivors' and Dependents' Educational Assistance; and
Administration of Educational Benefits (38 U.S.C. Chapters 31, 32, 34,
35 and 36 respectively).
9. Space and office facilities for representatives of recognized
national organizations (38 U.S.C. 5902(a)(2)).
10. Department of Veterans Affairs Health Professional Scholarship
Program (38 U.S.C. 7601-7655).
11. State Home Facilities for Furnishing Domiciliary, Nursing Home
and Hospital Care (38 U.S.C. 8131-8137).
12. Sharing of Medical Facilities, Equipment and Information (38
U.S.C. 8151-8157).
13. Assistance in Establishing New State Medical Schools; Grants to
Affiliated Medical Schools; Assistance to Health Manpower Training
Institutions (38 U.S.C. Chapter 82).
14. Emergency Veterans' Job Training (Pub. L. 98-77, 97 Stat.
443-452).
38 CFR 18.550 Appendix B to Subpart E of Part 18 -- List of Age Distinctions Contained in Statutes and Regulations Governing Federal Financial Assistance Programs of the Department of Veterans Affairs
38 CFR 18.550 Pt. 18, Subpt. E, App. B
Section 90.31(f) of the governmentwide regulations (45 CFR part 90)
requires each Federal agency to publish an appendix to its final
regulations containing a list of age distinctions in Federal statutes
and regulations affecting financial assistance administered by the
agency. This appendix is VA's list of age distinctions contained in
Federal statutes and VA regulations which:
(1) Provide benefits or assistance to persons based upon age; or
(2) Establish criteria for participation in age-related terms; or
(3) Describe intended beneficiaries or target groups in age-related
terms.
Appendix B deals only with VA's programs of financial assistance
covered by the Age Discrimination Act. It does not list age
distinctions used by VA in its direct assistance programs, such as
veterans' compensation. Also, this appendix contains only age
distinctions in Federal statutes and VA regulations in effect on January
1, 1985.
This appendix has two sections: A list of age distinctions in
Federal statutes, and a list of age distinctions in VA regulations. The
first column contains the name of the program; the second column has
the statute name and U.S. Code citation for statutes, or the regulation
name and Code of Federal Regulations citation for regulations; the
third column contains the section number of the statute or regulation
and the description of the age distinction; and the fourth column cites
the Catalog of Federal Domestic Assistance number for the program(s)
affected where it is available.
38 CFR 18.550 PART 18a -- DELEGATION OF RESPONSIBILITY IN CONNECTION
WITH TITLE VI, CIVIL RIGHTS ACT OF 1964
Sec.
18a.1 Delegations of responsibility between the Secretary of Veterans
Affairs and the Secretary, Department of Health and Human Services, and
the Secretary, Department of Education.
18a.2 Delegation to the Chief Benefits Director.
18a.3 Delegation to the Chief Medical Director.
18a.4 Duties of the Director, Contract Compliance Service.
18a.5 Delegation to the General Counsel.
Authority: 5 U.S.C. 301, 38 U.S.C. 501 and 38 CFR 18.9(d) and
appendix A, part 18.
38 CFR 18a.1 Delegations of responsibility between the Secretary of
Veterans Affairs and the Secretary, Department of Health and Human
Services, and the Secretary, Department of Education.
(a) Authority has been delegated to the Secretary of Veterans Affairs
by the Secretary, Department of Health and Human Services, and the
Secretary, Department of Education to perform responsibilities of those
Departments and of the responsible Departmental officials under Title VI
of the Civil Rights Act of 1964 and the Departments' regulations issued
thereunder (45 CFR part 80 and 34 CFR part 100) with respect to:
Proprietary (i.e., other than public or nonprofit) educational
institutions, except if operated by a hospital; and post secondary,
nonprofit, educational institutions other than colleges and
universities, except if operated by a college or university, a hospital,
or a unit of State or local government (i.e., those operating such
institutions as an elementary or secondary school, an area vocational
school, a school for the handicapped, etc.)
(1) The compliance responsibilities so delegated include:
(i) Soliciting, receiving, and determining the adequacy of assurances
of compliance under 45 CFR 80.4 and 34 CFR 100.4;
(ii) All actions under 45 CFR 80.6 including mailing, receiving, and
evaluating compliance reports under 80.6(b) and 34 CFR 100.6(b); and
(iii) All other actions related to securing voluntary compliance, or
related to investigations, compliance reviews, complaints,
determinations of apparent failure to comply, and resolutions of matters
by informal means.
(2) The Department of Health and Human Services and the Department of
Education specifically reserve to themselves the responsibilities for
the effectuation of compliance under 45 CFR 80.8, 80.9, 80.10 and 34 CFR
100.8, 100.9 and 100.10.
(b) Authority has been delegated to the Secretary, Department of
Health and Human Services and the Secretary, Department of Education, to
perform responsibilities of the Department of Veterans Affairs and of
the responsible Department of Veterans Affairs official under Title VI
of the Civil Rights Act of 1964 and the Department of Veterans Affairs
regulations issued thereunder (part 18 of this chapter) with respect to
institutions of higher learning, including post-high school institutions
which offer nondegree courses for which credit is given and which would
be accepted on transfer by a degree-granting institution toward a
baccalaureate or higher degree; hospitals and other health facilities
and elementary and secondary schools and school systems including, but
not limited to, their activities in connection with providing or seeking
approval to provide vocational rehabilitation to eligible persons under
Chapter 31 of Title 38 U.S.C., or education or training to eligible
persons under Chapters 34, 35, or 36 of Title 38 U.S.C.
(1) The compliance responsibilities so delegated include:
(i) Soliciting, receiving, and determining the adequacy of assurances
of compliance under 18.4 of this chapter;
(ii) Mailing, receiving, and evaluating compliance reports under
18.6(b) of this chapter; and
(iii) All other actions related to securing voluntary compliance or
related investigations, compliance reviews, complaints, determinations
of apparent failure to comply and resolutions of matters by informal
means.
(2) The Department of Veterans Affairs specifically reserves to
itself responsibilities for effectuation of compliance under 18.8,
18.9, and 18.10 of this chapter. Not included in the delegation to the
Secretary, Department of Health and Human Services and the Secretary,
Department of Education and specifically reserved to the Department of
Veterans Affairs is the exercise of compliance responsibilities with
respect to:
(i) Postsecondary schools which do not offer a program or courses
leading, or creditable, towards the granting of at least a bachelor's
degree, or its equivalent;
(ii) Privately-owned and operated proprietary technical, vocational,
and other private schools at the elementary or secondary level; and
(iii) Those institutions of higher learning and elementary and
secondary schools and school systems which, as of January 3, 1969, have
already been subjected to formal noncompliance proceedings by the
Department of Health and Human Services or the Department of Education
and have had their right to receive Federal financial assistance from
that agency terminated for noncompliance with Title VI of the Civil
Rights Act of 1964.
The Department of Veterans Affairs also retains the right to exercise
delegated compliance responsibilities itself in special cases with the
agreement of the appropriate official in the Department of Health and
Human Services or the Department of Education.
(c) Any institution of higher learning or a hospital or other health
facility which is listed by the Department of Health and Human Services
or the Department of Education as having filed an assurance of
compliance will be accepted as having met the requirements of the law
for the purpose of payment under 38 U.S.C. Chapters 31, 34, 35, or 36
and 38 U.S.C. sections 1741, 8131-8137 and 8155.
(d) If the Department of Health and Human Services or the Department
of Education finds that a school, hospital or other health facility
which has signed an assurance of compliance is apparently in
noncompliance, action will be initiated by that Department to obtain
compliance by voluntary means. If voluntary compliance is not achieved,
the Department of Veterans Affairs will join in subsequent proceedings.
(e) An institution which is on the Department of Health and Human
Services or the Department of Education list of noncomplying
institutions will be considered to be in a status of compliance for
Department of Veterans Affairs purposes if an assurance of compliance is
filed with the Department of Veterans Affairs and actual compliance is
confirmed. Certificates of eligibility may be issued and enrollments
approved and other appropriate payments made until such time as the
Department of Veterans Affairs has made an independent determination
that the institution is not in compliance.
(35 FR 10759, July 2, 1970, as amended at 51 FR 10385, Mar. 26, 1986)
38 CFR 18a.2 Delegation to the Chief Benefits Director.
The Chief Benefits Director is delegated responsibility for obtaining
evidence of voluntary compliance for vocational rehabilitation,
education, and special restorative training to implement Title VI, Civil
Rights Act of 1964. Authority is delegated to the Chief Benefits
Director and designee to take any necessary action as to programs of
vocational rehabilitation, education, or special restorative training
under 38 U.S.C. Chapters 31, 34, 35, and 36 for the purpose of securing
evidence of voluntary compliance directly or through the agencies to
whom the Secretary of Veterans Affairs has delegated responsibility for
various schools or training establishments to implement part 18 of this
chapter. The Chief Benefits Director also is delegated responsibility
for obtaining evidence of voluntary compliance from recognized national
organizations whose representatives are afforded space and office
facilities in field facilities under jurisdiction of the Chief Benefits
Director.
(35 FR 10759, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986;
54 FR 34984, Aug. 23, 1989)
38 CFR 18a.3 Delegation to the Chief Medical Director.
The Chief Medical Director is delegated responsibility for obtaining
evidence of voluntary compliance implementing the provisions of Title
VI, Civil Rights Act of 1964, in connection with payments to State
homes, with State home facilities for furnishing nursing home care, and
from recognized national organizations whose representatives are
afforded space and office facilities in field facilities under
jurisdiction of the Chief Medical Director.
(35 FR 10759, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18a.4 Duties of the Director, Contract Compliance Service.
Upon referral by the Chief Medical Director or the Chief Benefits
Director, the Director, Contract Compliance Service will:
(a) Investigate and process all complaints arising under Title VI of
the Civil Rights Act of 1964;
(b) Conduct periodic audits, reviews and evaluations;
(c) Attempt to secure voluntary compliance by conciliatory or other
informal means whenever investigation of a complaint, compliance review,
failure to furnish assurance of compliance, or other source indicates
noncompliance with Title VI; and
report to the Chief Medical Director or the Chief Benefits Director,
whichever is appropriate, the results of investigations, audits, reviews
and evaluations or the results of attempts to secure voluntary
compliance.
(35 FR 10759, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18a.5 Delegation to the General Counsel.
The General Counsel is delegated the responsibility, upon receipt of
information from the Chief Benefits Director, the Chief Medical
Director, or the designee of either of them, that compliance cannot be
secured by voluntary means, of forwarding to the recipient or other
person the notice required by 18.9(a) of this chapter, and also is
delegated the responsibility of representing the agency in all
proceedings resulting from such notice.
(35 FR 10759, July 2, 1970)
38 CFR 18a.5 Pt. 18b
38 CFR 18a.5 PART 18b -- PRACTICE AND PROCEDURE UNDER TITLE VI OF THE
CIVIL RIGHTS ACT OF 1964 AND PART 18 OF THIS CHAPTER
Sec.
18b.1 Scope of rules.
18b.2 Reviewing authority.
18b.9 Definitions.
18b.10 Records to be public.
18b.11 Use of number.
18b.12 Suspension of rules.
18b.13 Appearance.
18b.14 Authority for representation.
18b.15 Exclusion from hearing for misconduct.
18b.16 Parties.
18b.17 Amici curiae.
18b.18 Complainants not parties.
18b.20 Form of documents to be filed.
18b.21 Signature of documents.
18b.22 Filing and service.
18b.23 Service; how made.
18b.24 Date of service.
18b.25 Certificate of service.
18b.26 Computation.
18b.27 Extension of time or postponement.
18b.28 Reduction of time to file documents.
18b.30 Notice of hearing or opportunity for hearing.
18b.31 Answer to notice.
18b.32 Amendment of notice or answer.
18b.33 Request for hearing.
18b.34 Consolidation.
18b.35 Motions.
18b.36 Responses to motions and petitions.
18b.37 Disposition of motions and petitions.
18b.40 Who presides.
18b.41 Designation of an administrative law judge.
18b.42 Authority of presiding officer.
18b.50 Statements of position and trial briefs.
18b.51 Evidentiary purpose.
18b.52 Testimony.
18b.53 Exhibits.
18b.54 Affidavits.
18b.55 Depositions.
18b.56 Admissions as to facts and documents.
18b.57 Evidence.
18b.58 Cross-examination.
18b.59 Unsponsored written material.
18b.60 Objections.
18b.61 Exceptions to rulings of presiding officer unnecessary.
18b.62 Official notice.
18b.63 Public document items.
18b.64 Offer of proof.
18b.65 Appeals from ruling of presiding officer.
18b.66 Official transcript.
18b.67 Record for decision.
18b.70 Posthearing briefs; proposed findings and conclusions.
18b.71 Decisions following hearing.
18b.72 Exceptions to initial or recommended decisions.
18b.73 Final decisions.
18b.74 Oral argument to the reviewing authority.
18b.75 Review by the Secretary.
18b.76 Service on amici curiae.
18b.77 Final Department action.
18b.90 Conduct.
18b.91 Improper conduct.
18b.92 Ex parte communications.
18b.93 Expeditious treatment.
18b.94 Matters not prohibited.
18b.95 Filing of ex parte communications.
Authority: 5 U.S.C. 301, 38 U.S.C. 501 and 38 CFR 18.9(d) and
appendix A, part 18.
Source: 35 FR 10760, July 2, 1970, unless otherwise noted.
38 CFR 18a.5 General Rules
38 CFR 18b.1 Scope of rules.
The rules of procedure in this part supplement 18.9 and 18.10 of
this chapter and govern the practice for hearings, decisions, and
administrative review conducted by the Department of Veterans Affairs
pursuant to Title VI of the Civil Rights Act of 1964 (section 602, 78
Stat. 252) and part 18 of this chapter.
38 CFR 18b.2 Reviewing authority.
The term reviewing authority means the Secretary of Veterans Affairs,
or any person or persons acting pursuant to authority delegated by the
Secretary to carry out responsibility under 18.10 of this chapter. The
term includes the Secretary with respect to action under 18b.75.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.9 Definitions.
The definitions contained in 18.13 of this chapter apply to this
part, unless the context otherwise requires.
38 CFR 18b.10 Records to be public.
All pleadings, correspondence, exhibits, transcripts of testimony,
exceptions, briefs, decisions, and other documents filed in the docket
in any proceeding may be inspected and copied in the office of the Civil
Rights hearing clerk. Inquiries may be made at the Department of
Veterans Affairs Central Office, 810 Vermont Avenue NW., Washington, DC
20420.
38 CFR 18b.11 Use of number.
As used in this part, words importing the singular number may extend
and be applied to several persons or things, and vice versa.
(51 FR 10386, Mar. 26, 1986)
38 CFR 18b.12 Suspension of rules.
Upon notice to all parties, the reviewing authority or the presiding
officer, with respect to matters pending before them, may modify or
waive any rule upon determination that no party will be unduly
prejudiced and the ends of justice will thereby be served.
38 CFR 18b.12 Appearance and Practice
38 CFR 18b.13 Appearance.
A party may appear in person or by counsel and participate fully in
any proceeding. A State agency or a corporation may appear by any of
its officers or by any employee it authorizes to appear on its behalf.
Counsel must be members in good standing of the bar of a State,
territory, or possession of the United States or of the District of
Columbia or the Commonwealth of Puerto Rico.
38 CFR 18b.14 Authority for representation.
Any individual acting in any proceeding may be required to show
authority to act in such capacity.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.15 Exclusion from hearing for misconduct.
Disrespectful, disorderly, or contumacious language or contemptuous
conduct, refusal to comply with directions, or continued use of dilatory
tactics by any person at any hearing before a presiding officer shall
constitute grounds for immediate exclusion of such person from the
hearing by the presiding officer.
38 CFR 18b.15 Parties
38 CFR 18b.16 Parties.
The term party shall include an applicant or recipient or other
person to whom a notice of hearing or opportunity for hearing has been
mailed naming that person as respondent. The Department shall also be
deemed a party to all proceedings and shall be represented by the
General Counsel.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986;
54 FR 34984, Aug. 23, 1989)
38 CFR 18b.17 Amici curiae.
(a) Any interested person or organization may file a petition to
participate in a proceeding as an amicus curiae. Such petition shall be
filed prior to the prehearing conference, or if none is held, before the
commencement of the hearing, unless the petitioner shows good cause for
filing the petition later. The presiding officer may grant the petition
if the officer finds that the petitioner has a legitimate interest in
the proceedings, that such participation will not unduly delay the
outcome, and may contribute materially to the proper disposition
thereof. An amicus curiae is not a party and may not introduce evidence
at a hearing.
(b) An amicus curiae may submit a statement of position to the
presiding officer prior to the beginning of a hearing, and shall serve a
copy on each party. The amicus curiae may submit a brief on each
occasion a decision is to be made or a prior decision is subject to
review. The brief shall be filed and served on each party within the
time limits applicable to the party whose position the amicus curiae
deems to support; or if the amicus curiae does not deem to support the
position of any party, within the longest time limit applicable to any
party at that particular stage of the proceedings.
(c) When all parties have completed their initial examination of a
witness, any amicus curiae may request the presiding officer to propound
specific questions to the witness. The presiding officer, in the
officer's discretion, may grant any such request if the officer believes
the proposed additional testimony may assist materially in elucidating
factual matters at issue between the parties and will not expand the
issues.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.18 Complainants not parties.
A person submitting a complaint pursuant to 18.7(b) of this chapter
is not a party to the proceedings governed by this part, but may
petition, after proceedings are initiated, to become an amicus curiae.
38 CFR 18b.18 Documents
38 CFR 18b.20 Form of documents to be filed.
Documents to be filed shall be dated, the original signed in ink,
shall show the docket description and title of the proceeding, and shall
show the title, if any, and address of the signatory. Copies need not
be signed but the name of the person signing the original shall be
reproduced. Documents shall be legible and shall not be more than 8 1/2
inches wide and 12 inches long.
38 CFR 18b.21 Signature of documents.
The signature of a party, authorized officer, employee, or attorney
constitutes a certificate that one of them has read the document, that
to the best of that person's knowledge, information, and belief there is
good ground to support it, and that it is not interposed for delay. If
a document is not signed or is signed with intent to defeat the purpose
of this section, it may be stricken as sham and false and the proceeding
may proceed as though the document had not been filed. Similar action
may be taken if scandalous or indecent matter is inserted.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.22 Filing and service.
All notices by a Department of Veterans Affairs official, and all
written motions, requests, petitions, memoranda, pleadings, exceptions,
briefs, decisions, and correspondence to a Department of Veterans
Affairs official from a party, or vice versa, relating to a proceeding
after its commencement shall be filed and served on all parties.
Parties shall supply the original and two copies of documents submitted
for filing. Filings shall be made with the Civil Rights hearing clerk
at the address stated in the notice of hearing or notice of opportunity
for hearing, during regular business hours. Regular business hours are
every Monday through Friday (legal holidays in the District of Columbia
excepted) from 8 a.m. to 4:30 p.m., eastern standard or daylight saving
time, whichever is effective in the District of Columbia at the time.
Originals only of exhibits and transcripts of testimony need be filed.
For requirements of service on amici curiae, see 18b.76.
38 CFR 18b.23 Service; how made.
Service shall be made by personal delivery of one copy to each person
to be served or by mailing by first-class mail, properly addressed with
postage prepaid. When a party or amicus has appeared by attorney or
other representative, service upon such attorney or representative, will
be deemed service upon the party or amicus. Documents served by mail
preferably should be mailed in sufficient time to reach the addressee by
the date on which the original is due to be filed, and should be
airmailed if the addressee is more than 300 miles distant.
38 CFR 18b.24 Date of service.
The date of service shall be the day when the matter is deposited in
the U.S. mail or is delivered in person, except that the date of service
of the initial notice of hearing or opportunity for hearing shall be the
date of its delivery, or of its attempted delivery if refused.
38 CFR 18b.25 Certificate of service.
The original of every document filed and required to be served upon
parties to a proceeding shall be endorsed with a certificate of service
signed by the party making service or by the party's attorney or
representative, stating that such service has been made, the date of
service, and the manner of service, whether by mail or personal
delivery.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.25 Time
38 CFR 18b.26 Computation.
In computing any period of time under the rules in this part or in an
order issued hereunder, the time begins with the day following the act,
event, or default, and includes the last day of the period, unless it is
a Saturday, Sunday, or legal holiday observed in the District of
Columbia, in which event it includes the next following business day.
When the period of time prescribed or allowed is less than 7 days,
intermediate Saturdays, Sundays, and legal holidays shall be excluded
from the computation.
38 CFR 18b.27 Extension of time or postponement.
Requests for extension of time should be served on all parties and
should set forth the reasons for the application. Applications may be
granted upon a showing of good cause by the applicant. From the
designation of a presiding officer until the issuance of a decision such
requests should be addressed to the presiding officer. Answers to such
requests are permitted, if made promptly.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.28 Reduction of time to file documents.
For good cause, the reviewing authority or the presiding officer,
with respect to matters pending before them, may reduce any time limit
prescribed by the rules in this part, except as provided by law or in
part 18 of this chapter.
38 CFR 18b.28 Proceedings Before Hearing
38 CFR 18b.30 Notice of hearing or opportunity for hearing.
Proceedings are commenced by mailing a notice of hearing or
opportunity for hearing to an affected applicant or recipient, pursuant
to 18.9 and 18a.5 of this chapter.
38 CFR 18b.31 Answer to notice.
The respondent, applicant or recipient may file an answer to the
notice within 20 days after service thereof. Answers shall admit or
deny specifically and in detail each allegation of the notice, unless
the respondent party is without knowledge, in which case the answer
should so state, and the statement will be deemed a denial. Allegations
of fact in the notice not denied or controverted by answer shall be
deemed admitted. Matters alleged as affirmative defenses shall be
separately stated and numbered. Failure of the respondent to file an
answer within the 20-day period following service of the notice may be
deemed an admission of all matters of fact recited in the notice.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.32 Amendment of notice or answer.
The General Counsel may amend the notice of hearing or opportunity
for hearing once as a matter of course before an answer thereto is
served, and each respondent may amend the answer once as a matter of
course not later than 10 days before the date fixed for hearing but in
no event later than 20 days from the date of service of the original
answer. Otherwise a notice or answer may be amended only by leave of
the presiding officer. A respondent shall file the answer to an amended
notice within the time remaining for filing the answer to the original
notice or within 10 days after service of the amended notice, whichever
period may be the longer, unless the presiding officer otherwise orders.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.33 Request for hearing.
Within 20 days after service of a notice of opportunity for hearing
which does not fix a date for hearing the respondent, either in the
answer or in a separate document, may request a hearing. Failure of the
respondent to request a hearing shall be deemed a waiver of the right to
a hearing and to constitute consent to the making of a decision on the
basis of such information as is available.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.34 Consolidation.
The reviewing authority may provide for proceedings in the Department
of Veterans Affairs to be joined or consolidated for hearing with
proceedings in other Federal departments or agencies, by agreement with
such other departments or agencies. All parties to any proceeding
consolidated subsequent to service of the notice of hearing or
opportunity for hearing shall be served with notice of such
consolidation.
38 CFR 18b.35 Motions.
Motions and petitions shall state the relief sought, the authority
relied upon, and the facts alleged. If made before or after the
hearing, these matters shall be in writing. If made at the hearing,
they may be stated orally; but the presiding officer may require that
they be reduced to writing and filed and served on all parties in the
same manner as a formal motion. Motions, answers, and replies shall be
addressed to the presiding officer, if the case is pending before the
officer. A repetitious motion will not be entertained.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.36 Responses to motions and petitions.
Within 8 days after a written motion or petition is served, or such
other period as the reviewing authority or the presiding officer may
fix, any party may file a response thereto. An immediate oral response
may be made to an oral motion.
38 CFR 18b.37 Disposition of motions and petitions.
The reviewing authority or the presiding officer may not sustain or
grant a written motion or petition prior to expiration of the time for
filing responses thereto, but may overrule or deny such motion or
petition without awaiting response: Provided, however, That prehearing
conferences, hearings and decisions need not be delayed pending
disposition of motions or petitions. Oral motions and petitions may be
ruled on immediately. Motions and petitions submitted to the reviewing
authority or the presiding officer, respectively, and not disposed of in
separate rulings or in their respective decisions will be deemed denied.
Oral arguments shall not be held on written motions or petitions unless
the presiding officer in the officer's discretion expressly so orders.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.37 Responsibilities and Duties of Presiding Officer
38 CFR 18b.40 Who presides.
An administrative law judge assigned under 5 U.S.C. 3105 or 3344
(formerly section 11 of the Administrative Procedure Act) shall preside
over the taking of evidence in any hearing to which these rules or
procedure apply.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.41 Designation of an administrative law judge.
The designation of the administrative law judge as presiding officer
shall be in writing, and shall specify whether the administrative law
judge is to make an initial decision or to certify the entire record
including recommended findings and proposed decision to the reviewing
authority, and may also fix the time and place of hearing. A copy of
such order shall be served on all parties. After service of an order
designating an administrative law judge to preside, and until such
administrative law judge makes a decision, motions and petitions shall
be submitted to the administrative law judge. In the case of the death,
illness, disqualification or unavailability of the designated
administrative law judge, another administrative law judge may be
designated to take that person's place.
(51 FR 10386, Mar. 26, 1986)
38 CFR 18b.42 Authority of presiding officer.
The presiding officer shall have the duty to conduct a fair hearing,
to take all necessary action to avoid delay, and to maintain order. The
presiding officer shall have all powers necessary to these ends,
including (but not limited to) the power to:
(a) Arrange and issue notice of the date, time, and place of
hearings, or, upon due notice to the parties, to change the date, time,
and place of hearings previously set.
(b) Hold conferences to settle, simplify, or fix the issues in a
proceeding, or to consider other matters that may aid in the expeditious
disposition of the proceeding.
(c) Require parties and amici curiae to state their position with
respect to the various issues in the proceeding.
(d) Administer oaths and affirmations.
(e) Rule on motions, and other procedural items on matters pending
before the presiding officer.
(f) Regulate the course of the hearing and conduct of counsel
therein.
(g) Examine witnesses and direct witnesses to testify.
(h) Receive, rule on, exclude or limit evidence.
(i) Fix the time for filing motions, petitions, briefs, or other
items in matters pending before the presiding officer.
(j) Issue initial or recommended decisions.
(k) Take any action authorized by the rules in this part, or in
conformance with the provisions of 5 U.S.C. 551-559 (the Administrative
Procedure Act).
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.42 Hearing Procedures
38 CFR 18b.50 Statements of position and trial briefs.
The presiding officer may require parties and amici curiae to file
written statements of position prior to the beginning of a hearing. The
presiding officer may also require the parties to submit trial briefs.
38 CFR 18b.51 Evidentiary purpose.
(a) The hearing is directed to receiving factual evidence and expert
opinion testimony related to the issues in the proceeding. Argument
will not be received in evidence; rather it should be presented in
statements, memoranda, or briefs, as determined by the presiding
officer. Brief opening statements, which shall be limited to statement
of the party's position and what the party intends to prove, may be made
at hearings.
(b) Hearings for the reception of evidence will be held only in cases
where issues of fact must be resolved in order to determine whether the
respondent has failed to comply with one or more applicable requirements
of part 18 of this chapter. In any case where it appears from the
respondent's answer to the notice of hearing or opportunity for hearing,
from failure timely to answer, or from admissions or stipulations in the
record, that there are no matters of material fact in dispute, the
reviewing authority or presiding officer may enter an order so finding,
vacating the hearing date if one has been set, and fixing the time for
filing briefs under 18b.70. Thereafter the proceedings shall go to
conclusion in accordance with 18b.70 through 18b.76. The presiding
officer may allow an appeal from such order in accordance with 18b.65.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.52 Testimony.
Testimony shall be given orally under oath or affirmation by
witnesses at the hearing; but the presiding officer, in the officer's
discretion, may require or permit that the direct testimony of any
witness be prepared in writing and served on all parties in advance of
the hearing. Such testimony may be adopted by the witness at the
hearing, and filed as part of the record thereof. Unless authorized by
the presiding officer, witnesses will not be permitted to read prepared
testimony into the record. Except as provided in 18b.54 and 18b.55,
witnesses shall be available at the hearing for cross-examination.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.53 Exhibits.
Proposed exhibits shall be exchanged at the prehearing conference, or
otherwise prior to the hearing if the presiding officer so requires.
Proposed exhibits not so exchanged may be denied admission as evidence.
The authenticity of all proposed exhibits exchanged prior to hearing
will be deemed admitted unless written objection thereto is filed prior
to the hearing or unless good cause is shown at the hearing for failure
to file such written objection.
38 CFR 18b.54 Affidavits.
An affidavit is not inadmissible as such. Unless the presiding
officer fixes other time periods affidavits shall be filed and served on
the parties not later than 15 days prior to the hearing; and not less
than 7 days prior to hearing a party may file and serve written
objection to any affidavit on the ground that it is believed necessary
to test the truth of assertions therein at hearing. In such event the
assertions objected to will not be received in evidence unless the
affiant is made available for cross-examination, or the presiding
officer determines that cross-examination is not necessary for the full
and true disclosure of facts referred to in such assertions.
Notwithstanding any objection, however, affidavits may be considered in
the case of any respondent who waives a hearing.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.55 Depositions.
Upon such terms as may be just, for the convenience of the parties or
of the Department of Veterans Affairs, the presiding officer may
authorize or direct the testimony of any witness to be taken by
deposition.
38 CFR 18b.56 Admissions as to facts and documents.
Not later than 15 days prior to the scheduled date of the hearing
except for good cause shown or prior to such earlier date as the
presiding officer may order, any party may serve upon an opposing party
a written request for the admission of the genuineness and authenticity
of any relevant documents described in and exhibited with the request,
or for the admission of the truth of any relevant matters of fact stated
in the request. Each of the matters of which an admission is requested
shall be deemed admitted, unless within a period designated in the
request (not less than 10 days after service thereof, or within such
further time as the presiding officer or the reviewing authority if no
presiding officer has yet been designated may allow upon motion and
notice) the party to whom the request is directed serves upon the
requesting party a sworn statement either denying specifically the
matters of which an admission is requested or setting forth in detail
the reasons why the party cannot truthfully either admit or deny such
matters. Copies of requests for admission and answers thereto shall be
served on all parties. Any admission made by a party to such request is
only for the purposes of the pending proceeding, or any proceeding or
action instituted for the enforcement of any order entered therein, and
shall not constitute an admission by the party for any other purpose or
be used against the party in any other proceeding or action.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.57 Evidence.
Irrelevant, immaterial, unreliable, and unduly repetitious evidence
will be excluded.
38 CFR 18b.58 Cross-examination.
A witness may be cross-examined on any matter material to the
proceeding without regard to the scope of his direct examination.
38 CFR 18b.59 Unsponsored written material.
Letters expressing views or urging action and other unsponsored
written material regarding matters in issue in a hearing will be placed
in the correspondence section of the docket of the proceeding. These
data are not deemed part of the evidence or record in the hearing.
38 CFR 18b.60 Objections.
Objections to evidence shall be timely and briefly state the ground
relied upon.
38 CFR 18b.61 Exceptions to rulings of presiding officer unnecessary.
Exceptions to rulings of the presiding officer are unnecessary. It
is sufficient that a party, at the time the ruling of the presiding
officer is sought, makes known the action which the party desires the
presiding officer to take, or the party's objection to an action taken,
and the party's grounds therefor.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.62 Official notice.
Where official notice is taken or is to be taken of a material fact
not appearing in the evidence of record, any party, on timely request,
shall be afforded an opportunity to show the contrary.
38 CFR 18b.63 Public document items.
Whenever there is offered (in whole or in part) a public document,
such as an official report, decision, opinion, or published scientific
or economic statistical data issued by any of the executive departments
(or their subdivisions), legislative agencies or committees, or
administrative agencies of the Federal Government (including
Government-owned corporations), or a similar document issued by a State
or its agencies, and such document (or part thereof) has been shown by
the offeror to be reasonably available to the public, such document need
not be produced or marked for identification, but may be offered for
official notice, as a public document item by specifying the document or
relevant part thereof.
38 CFR 18b.64 Offer of proof.
An offer of proof made in connection with an objection taken to any
ruling of the presiding officer rejecting or excluding proffered oral
testimony shall consist of a statement of the substance of the evidence
which counsel contends would be adduced by such testimony; and, if the
excluded evidence consists of evidence in documentary or written form or
of reference to documents or records, a copy of such evidence shall be
marked for identification and shall accompany the record as the offer of
proof.
38 CFR 18b.65 Appeals from ruling of presiding officer.
Rulings of the presiding officer may not be appealed to the reviewing
authority prior to consideration of the entire proceeding except with
the consent of the presiding officer and where the reviewing authority
certifies on the record or in writing that the allowance of an
interlocutory appeal is clearly necessary to prevent exceptional delay,
expense, or prejudice to any party, or substantial detriment to the
public interest. If an appeal is allowed, any party may file a brief
with the reviewing authority within such period as the presiding officer
directs. No oral argument will be heard unless the reviewing authority
directs otherwise. At any time prior to submission of the proceeding to
the reviewing authority for decision, the reviewing authority may direct
the presiding officer to certify any question or the entire record to
the reviewing authority for decision. Where the entire record is so
certified, the presiding officer shall recommend a decision.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.65 The Record
38 CFR 18b.66 Official transcript.
The Department of Veterans Affairs will designate the official
reporter for all hearings. The official transcripts of testimony taken,
together with any exhibits, briefs, or memoranda of law filed therewith
shall be filed with the Department of Veterans Affairs. Transcripts of
testimony in hearings may be obtained from the official reporter by the
parties and the public at rates not to exceed the maximum rates fixed by
the contract between the Department of Veterans Affairs and the
reporter. Upon notice to all parties, the presiding officer may
authorize corrections to the transcript which involve matters of
substance.
38 CFR 18b.67 Record for decision.
The transcript of testimony, exhibits, and all papers and requests
filed in the proceedings, except the correspondence section of the
docket, including rulings and any recommended or initial decision shall
constitute the exclusive record for decision.
38 CFR 18b.67 Posthearing Procedures; Decisions
38 CFR 18b.70 Posthearing briefs; proposed findings and conclusions.
(a) The presiding officer shall fix the time for filing posthearing
briefs, which may contain proposed findings of fact and conclusions of
law, and, if permitted, reply briefs.
(b) Briefs should include a summary of the evidence relied upon
together with references to exhibit numbers and pages of the transcript,
with citations of authorities relied upon.
38 CFR 18b.71 Decisions following hearing.
When the time for submission of posthearing briefs has expired, the
presiding officer shall certify the entire record, including recommended
findings and proposed decision, to the reviewing authority; or if so
authorized shall make an initial decision. A copy of the recommended
findings and proposed decision, or of the initial decision, shall be
served upon all parties, and amici, if any.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986)
38 CFR 18b.72 Exceptions to initial or recommended decisions.
Within 20 days after the mailing of an initial or recommended
decision, any party may file exceptions to the decision, stating reasons
therefor, with the reviewing authority. Any other party may file a
response thereto within 30 days after the mailing of the decision. Upon
the filing of such exceptions, the reviewing authority shall review the
decision and issue its own decision thereon.
38 CFR 18b.73 Final decisions.
(a) Where the hearing is conducted by a hearing examiner who makes an
initial decision, if no exceptions thereto are filed within the 20-day
period specified in 18b.72, such decision shall become the final
decision of the Department of Veterans Affairs, and shall constitute
''final agency action'' within the meaning of 5 U.S.C. 704 (formerly
section 10(c) of the Administrative Procedure Act), subject to the
provisions of 18b.75.
(b) Where the hearing is conducted by an administrative law judge who
makes a recommended decision or upon the filing of exceptions to an
administrative law judge's initial decision, the reviewing authority
shall review the recommended or initial decision and shall issue a
decision thereon, which shall become the final decision of VA, and shall
constitute ''final agency action'' within the meaning of 5 U.S.C. 704
(formerly section 10(c) of the Administrative Procedures Act), subject
to the provisions of 18b.75.
(c) All final decisions shall be promptly served on all parties, and
amici, if any.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986;
54 FR 34984, Aug. 23, 1989)
38 CFR 18b.74 Oral argument to the reviewing authority.
(a) If any party desires to argue a case orally on exceptions or
replies to exceptions to an initial or recommended decision, the party
shall make such request in writing. The reviewing authority may grant
or deny such requests in his or her discretion. If granted, the
reviewing authority will serve notice of oral argument on all parties.
The notice will set forth the order of presentation, the amount of time
allotted, and the time and place for argument. The names of persons who
will argue should be filed with the agency hearing clerk not later than
7 days before the date set for oral argument.
(b) The purpose of oral argument is to emphasize and clarify the
written argument in the briefs. Reading at length from the brief or
other texts is not favored. Participants should confine their arguments
to points of controlling importance and to points upon which exceptions
have been filed. Consolidations of appearances at oral argument by
parties taking the same side will permit the parties' interests to be
presented more effectively in the time allotted.
(c) Pamphlets, charts, and other written material may be presented at
oral argument only if such material is limited to facts already in the
record and is served on all parties and filed with the Department
hearing clerk at least 7 days before the argument.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10386, Mar. 26, 1986;
54 FR 34984, Aug. 23, 1989)
38 CFR 18b.75 Review by the Secretary.
Within 20 days after an initial decision becomes a final decision
pursuant to 18b.73(a), or within 20 days of the mailing of a final
decision referred to in 18b.73(b), as the case may be, a party may
request the Secretary to review the final decision. The Secretary may
grant or deny such request, in whole or in part, or serve notice of
intent to review the decision in whole or in part upon motion. If the
Secretary grants the requested review, or serves notice of intent to
review upon motion, each party to the decision shall have 20 days
following notice of the Secretary's proposed action within which to file
exceptions to the decision and supporting briefs and memoranda, or
briefs and memoranda in support of the decision. Failure of a party to
request review under this section shall not be deemed a failure to
exhaust administrative remedies for the purpose of obtaining judicial
review.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986)
38 CFR 18b.76 Service on amici curiae.
All briefs, exceptions, memoranda, requests, and decisions referred
to in 18b.70 through 18b.76 shall be served upon amici curiae at the
same times and in the same manner required for service on parties. Any
written statements of position and trial briefs required of parties
under 18b.50 shall be served on amici.
38 CFR 18b.76 Posthearing Department Actions
38 CFR 18b.77 Final Department action.
(a) The final decision of the administrative law judge or reviewing
authority that a school or training establishment is not in compliance
will be referred by the reviewing authority to the Secretary for
approval as required by 18.10(e) of this chapter. The finding will be
accompanied by letters from the Secretary to the House Veterans' Affairs
Committee and the Senate Veterans Affairs Committee containing a full
report on the circumstances as required by 18.8(c) of this chapter, the
reasons for the proposed action and a statement that the proposed action
will become the final Department action 30 days after the date of the
letter.
(b) A copy of the letters to the congressional committees will be
sent to all parties to the proceedings.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986;
54 FR 34984, Aug. 23, 1989)
38 CFR 18b.77 Judicial Standards of Practice
38 CFR 18b.90 Conduct.
Parties and their representatives are expected to conduct themselves
with honor and dignity and observe judicial standards of practice and
ethics in all proceedings. They should not indulge in offensive
personalities, unseemly wrangling, or intemperate accusations or
characterizations. A representative of any party whether or not a
lawyer shall observe the traditional responsibilities of lawyers as
officers of the court and use best efforts to restrain the principal
represented from improprieties in connection with a proceeding.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986)
38 CFR 18b.91 Improper conduct.
With respect to any proceeding it is improper for any interested
person to attempt to sway the judgment of the reviewing authority by
undertaking to bring pressure or influence to bear upon the reviewing
authority or any officer having a responsibility for a decision in the
proceeding, or decisional staff. It is improper that such interested
persons or any members of the Department of Veterans Affairs's staff or
the presiding officer give statements to communications media, by paid
advertisement or otherwise, designed to influence the judgment of any
officer having a responsibility for a decision in the proceeding, or
decisional staff. It is improper for any person to solicit
communications to any such officer, or decisional staff, other than
proper communications by parties or amici curiae.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986)
38 CFR 18b.92 Ex parte communications.
Only persons employed by or assigned to work with the reviewing
authority who perform no investigative or prosecuting function in
connection with a proceeding shall communicate ex parte with the
reviewing authority or the presiding officer, or any employee or person
involved in the decisional process in such proceedings with respect to
the merits of that or a factually related proceeding. The reviewing
authority, the presiding officer, or any employee or person involved in
the decisional process of a proceeding shall communicate ex parte with
respect to the merits of that or a factually related proceeding only
with persons employed by or assigned to work with them and who perform
no investigative or prosecuting function in connection with the
proceeding.
38 CFR 18b.93 Expeditious treatment.
Requests for expeditious treatment of matters pending before the
reviewing authority or the presiding officer are deemed communications
on the merits, and are improper except when forwarded from parties to a
proceeding and served upon all other parties thereto. Such
communications should be in the form of a motion.
38 CFR 18b.94 Matters not prohibited.
A request for information which merely inquires about the status of a
proceeding without discussing issues or expressing points of view is not
deemed an ex parte communication. Such requests should be directed to
the civil rights hearing clerk. Communications with respect to minor
procedural matters or inquiries or emergency requests for extensions of
time are not deemed ex parte communications prohibited by 18b.92. Where
feasible, however, such communications should be by letter with copies
to all parties. Ex parte communications between a respondent and the
responsible agency official or the Secretary with respect to securing
such respondent's voluntary compliance with any requirement of part 18
of this chapter are not prohibited.
38 CFR 18b.95 Filing of ex parte communications.
A prohibited communication in writing received by the Secretary, the
reviewing authority, or by the presiding officer, shall be made public
by placing it in the correspondence file of the docket in the case and
will not be considered as part of the record for decision. If the
prohibited communication is received orally, a memorandum setting forth
its substance shall be made and filed in the correspondence section of
the docket in the case. A person referred to in such memorandum may
file a comment for inclusion in the docket if the memorandum is
considered to be incorrect.
(35 FR 10760, July 2, 1970, as amended at 51 FR 10387, Mar. 26, 1986)
38 CFR 18b.95 Pt. 19
38 CFR 18b.95 PART 19 -- BOARD OF VETERANS' APPEALS: APPEALS REGULATIONS
38 CFR 18b.95 Subpart A -- Operation of the Board of Veterans' Appeals
Sec.
19.1 Establishment of the Board.
19.2 Composition of the Board.
19.3 Appointment, assignment, and rotation of Members.
19.4 Principal functions of the Board.
19.5 Criteria governing disposition of appeals.
19.6 (Reserved)
19.7 The decision.
19.8 Decision notification.
19.9 Remand for further development.
19.10 (Reserved)
19.11 Reconsideration Section.
19.12 Disqualification of Members.
19.13 Delegation of authority to Chairman and Vice Chairman, Board of
Veterans' Appeals.
19.14 Delegation of authority -- Appeals Regulations.
19.15 -- 19.24 (Reserved)
38 CFR 18b.95 Subpart B -- Appeals Processing by Agency of Original
Jurisdiction
19.25 Notification by agency of original jurisdiction of right to
appeal.
19.26 Action by agency of original jurisdiction on Notice of
Disagreement.
19.27 Adequacy of Notice of Disagreement questioned within the agency
of original jurisdiction.
19.28 Determination that a Notice of Disagreement is inadequate
protested by claimant or representative.
19.29 Statement of the Case.
19.30 Furnishing the Statement of the Case and instructions for
filing a Substantive Appeal.
19.31 Supplemental Statement of the Case.
19.32 Closing of appeal for failure to respond to Statement of the
Case.
19.33 Timely filing of Notice of Disagreement or Substantive Appeal
questioned within the agency of original jurisdiction.
19.34 Determination that Notice of Disagreement or Substantive Appeal
was not timely filed protested by claimant or representative.
19.35 Certification of appeals.
19.36 Notification of certification of appeal and transfer of
appellate record.
19.37 Consideration of additional evidence received by the agency of
original jurisdiction after an appeal has been initiated.
19.38 Action by agency of original jurisdiction when remand received.
19.39 -- 19.49 (Reserved)
38 CFR 18b.95 Subpart C -- Administrative Appeals
19.50 Nature and form of administrative appeal.
19.51 Officials authorized to file administrative appeals and time
limits for filing.
19.52 Notification to claimant of filing of administrative appeal.
19.53 Restriction as to change in payments pending determination of
administrative appeals.
19.54 -- 19.74 (Reserved)
38 CFR 18b.95 Subpart D -- Hearings Before Traveling Sections of the
Board of Veterans' Appeals
19.75 Travel Board hearing docket.
19.76 Notice of time and place of Travel Board hearing.
19.77 Providing Statement of the Case when Travel Board hearing has
been requested.
19.78 -- 19.99 (Reserved)
38 CFR 18b.95 Subpart E -- Simultaneously Contested Claims
19.100 Notification of right to appeal in simultaneously contested
claims.
19.101 Notice to contesting parties on receipt of Notice of
Disagreement in simultaneously contested claims.
19.102 Notice of appeal to other contesting parties in simultaneously
contested claims.
Appendix A to Part 19 -- Cross-References
Authority: 38 U.S.C. 501(a).
Source: 57 FR 4104, Feb. 3, 1992, unless otherwise noted.
38 CFR 18b.95 Subpart A -- Operation of the Board of Veterans' Appeals
38 CFR 19.1 Establishment of the Board.
The Board of Veterans' Appeals is established by authority of, and
functions pursuant to, title 38, United States Code, chapter 71.
38 CFR 19.2 Composition of the Board.
The Board consists of a Chairman, Vice Chairman, Deputy Vice
Chairmen, Members, and professional, administrative, clerical and
stenographic personnel.
(Authority: 38 U.S.C. 501(a), 512, 7101(a))
38 CFR 19.3 Appointment, assignment, and rotation of Members.
(a) Appointment of Members. The Chairman is appointed by the
President of the United States, by and with the advice and consent of
the United States Senate. Members of the Board, including the Vice
Chairman, are appointed by the Secretary upon the recommendation of the
Chairman with the approval of the President of the United States.
Deputy Vice Chairmen are Members of the Board who are appointed to that
office by the Secretary upon the recommendation of the Chairman.
(Authority: 38 U.S.C. 501(a), 512, 7101(b))
(b) Assignment. The Chairman may divide the Board into Sections of
three Members, assign Members of the Board to each such Section, and
designate the Chief Member of each such Section. From time to time, a
Member may be designated as a Chief Member or a Chief Member may be
redesignated as a Member.
(Authority: 38 U.S.C. 7102)
(c) Rotation. The Chairman may from time to time rotate the Members
of the Sections.
(Authority: 38 U.S.C. 7102)
(d) Inability to serve. If, as a result of a vacancy, absence, or
for reasons set forth in 19.12 of this part, a Member of a Section of
the Board is unable to participate in the disposition of an appeal
before the Section, the Chairman may assign or substitute another Member
or direct the Section to proceed without any additional assignment or
substitution of Members.
(Authority: 38 U.S.C. 7102)
38 CFR 19.4 Principal functions of the Board.
The principal functions of the Board are to make determinations of
appellate jurisdiction, consider all applications on appeal properly
before it, conduct hearings on appeal, evaluate the evidence of record,
and enter decisions in writing on the questions presented on appeal.
(Authority: 38 U.S.C. 7102, 7104)
38 CFR 19.5 Criteria governing disposition of appeals.
In the consideration of appeals, the Board is bound by applicable
statutes, regulations of the Department of Veterans Affairs, and
precedent opinions of the General Counsel of the Department of Veterans
Affairs. The Board is not bound by Department manuals, circulars, or
similar administrative issues.
(Authority: 38 U.S.C. 501(a), 7104(c))
19.6 (Reserved)
38 CFR 19.7 The decision.
(a) Decisions based on entire record. The appellant will not be
presumed to be in agreement with any statement of fact contained in a
Statement of the Case to which no exception is taken. Decisions of the
Board are based on a review of the entire record.
(Authority: 38 U.S.C. 7104(a), 7105(d)(4))
(b) Content. The decision of the Board will be in writing and will
set forth specifically the issue or issues under appellate
consideration. Except with respect to issues remanded to the agency of
original jurisdiction for further development of the case and appeals
which are dismissed because the issue has been resolved by
administrative action or because an appellant seeking nonmonetary
benefits has died while the appeal was pending, the decision will also
include separately stated findings of fact and conclusions of law on all
material issues of fact and law presented on the record, the reasons or
bases for those findings and conclusions, and an order granting or
denying the benefit or benefits sought on appeal or dismissing the
appeal.
(Authority: 38 U.S.C. 7104(d))
38 CFR 19.8 Decision notification.
After a decision has been rendered by the Board, all parties to the
appeal and the representatives, if any, will be notified of the results
by the mailing of a copy of the written decision to the parties and
their representatives at their last known addresses. In the case of
appeals involving contesting claimants, the content of the Board's
decision will be limited to that information which directly affects the
payment or potential payment of the benefit(s) which is (are) the
subject of the contested claim. Any Board decision in the same case,
but involving separate appeal issues which are not a part of the
contested claim, will be made the subject of a separate written decision
which will be mailed only to that appellant and his or her
representative.
(Authority: 38 U.S.C. 7104(e))
38 CFR 19.9 Remand for further development.
When, during the course of review, it is determined that further
evidence or clarification of the evidence or correction of a procedural
defect is essential for a proper appellate decision, a Section of the
Board shall remand the case to the agency of original jurisdiction,
specifying the action to be undertaken.
(Authority: 38 U.S.C. 7102, 7104(a))
19.10 (Reserved)
38 CFR 19.11 Reconsideration Section.
(a) Assignment of members. When a motion for reconsideration is
allowed, the Chairman will assign a Section to conduct the
reconsideration.
(b) Number of Members constituting a reconsideration Section. The
number of Board Members assigned to the reviewing Section will be
determined by increasing the number of Members who participated in the
original decision by not less than three additional Members, in
increments of three Members. Except when necessary to obtain a majority
opinion, a reconsideration Section will not exceed nine Members.
(c) Members included in the reconsideration Section. The
reconsideration Section will include those Members who participated in
the original decision who are available, additional Members assigned by
the Chairman to substitute for Members who participated in the decision
being reconsidered who are no longer available, and additional Members
assigned in accordance with paragraph (b) of this section. In the case
of Travel Board hearings involving reconsideration of a prior Board
decision, the Members of the traveling Section of the Board will be
included in the expanded Section established pursuant to paragraph (b)
of this section. If the prior Board decision being reconsidered
involves questions concerning post-traumatic stress disorder or
radiation, Agent Orange, or asbestos exposure, the traveling Section
will be included in an expanded Section which also includes Board
Members specializing in those issues.
(Authority: 38 U.S.C. 7102, 7103, 7110)
38 CFR 19.12 Disqualification of Members.
(a) General. A Member of the Board will disqualify himself or
herself in a hearing or decision on an appeal if that appeal involves a
determination in which he or she participated or had supervisory
responsibility in the agency of original jurisdiction prior to his or
her appointment as a Member of the Board, or where there are other
circumstances which might give the impression of bias either for or
against the appellant.
(Authority: 38 U.S.C. 7102, 7104)
(b) Appeal on same issue subsequent to decision on administrative
appeal. Members of the Board who made the decision on an administrative
appeal will disqualify themselves from acting on a subsequent appeal by
the claimant on the same issue.
(Authority: 38 U.S.C. 7102, 7104, 7106)
(c) Disqualification of Members by the Chairman. The Chairman of the
Board, on his or her own motion, may disqualify a Member from acting in
an appeal on the grounds set forth in paragraphs (a) and (b) of this
section and in those cases where a Member is unable or unwilling to act.
(Authority: 38 U.S.C. 7102, 7104, 7106)
38 CFR 19.13 Delegation of authority to Chairman and Vice Chairman,
Board of Veterans' Appeals.
The Chairman and/or Vice Chairman have authority delegated by the
Secretary of Veterans Affairs to:
(a) Approve the assumption of appellate jurisdiction of an
adjudicative determination which has not become final in order to grant
a benefit, and
(b) Order VA Central Office investigations of matters before the
Board.
(Authority: 38 U.S.C. 303, 512(a))
38 CFR 19.14 Delegation of authority -- Appeals Regulations.
(a) The authority exercised by the Chairman of the Board of Veterans'
Appeals described in 19.3(b), 19.3(c), and 19.12(c) of this part may
also be exercised by the Vice Chairman of the Board.
(b) The authority exercised by the Chairman of the Board of Veterans'
Appeals described in 19.3(d) and 19.11 of this part may also be
exercised by the Vice Chairman of the Board and by Deputy Vice Chairmen
of the Board.
(Authority: 38 U.S.C. 512(a), 7102, 7104)
38 CFR 19.14 Subpart B -- Appeals Processing by Agency of Original Jurisdiction
38 CFR 19.25 Notification by agency of original jurisdiction of right
to appeal.
The claimant and his or her representative, if any, will be informed
of appellate rights provided by 38 U.S.C. chapters 71 and 72, including
the right to a personal hearing and the right to representation. The
agency of original jurisdiction will provide this information in each
notification of a determination of entitlement or nonentitlement to
Department of Veterans Affairs benefits.
(Authority: 38 U.S.C. 7105(a))
38 CFR 19.26 Action by agency of original jurisdiction on Notice of
Disagreement.
When a Notice of Disagreement is timely filed, the agency of original
jurisdiction must reexamine the claim and determine if additional review
or development is warranted. When a Notice of Disagreement is received
following a multiple-issue determination and it is not clear which
issue, or issues, the claimant desires to appeal, clarification
sufficient to identify the issue, or issues, being appealed should be
requested from the claimant or his or her representative. If no
preliminary action is required, or when it is completed, the agency of
original jurisdiction must prepare a Statement of the Case pursuant to
19.29 of this part, unless the matter is resolved by granting the
benefits sought on appeal or the Notice of Disagreement is withdrawn by
the appellant or his or her representative.
(Authority: 38 U.S.C. 7105(d)(1))
38 CFR 19.27 Adequacy of Notice of Disagreement questioned within the
agency of original jurisdiction.
If, within the agency of original jurisdiction, there is a question
as to the adequacy of a Notice of Disagreement, the procedures for an
administrative appeal must be followed.
(Authority: 38 U.S.C. 7105, 7106)
38 CFR 19.28 Determination that a Notice of Disagreement is inadequate
protested by claimant or representative.
Whether a Notice of Disagreement is adequate is an appealable issue.
If the claimant or his or her representative protests an adverse
determination made by the agency of original jurisdiction with respect
to the adequacy of a Notice of Disagreement, the claimant will be
furnished a Statement of the Case.
(Authority: 38 U.S.C. 7105)
38 CFR 19.29 Statement of the Case.
The Statement of the Case must be complete enough to allow the
appellant to present written and/or oral arguments before the Board of
Veterans' Appeals. It must contain:
(a) A summary of the evidence in the case relating to the issue or
issues with which the appellant or representative has expressed
disagreement;
(b) A summary of the applicable laws and regulations, with
appropriate citations, and a discussion of how such laws and regulations
affect the determination; and
(c) The determination of the agency of original jurisdiction on each
issue and the reasons for each such determination with respect to which
disagreement has been expressed.
(Authority: 38 U.S.C. 7105(d)(1))
38 CFR 19.30 Furnishing the Statement of the Case and instructions for
filing a Substantive Appeal.
(a) To whom the Statement of the Case is furnished. The Statement of
the Case will be forwarded to the appellant at the latest address of
record and a separate copy provided to his or her representative (if
any).
(b) Information furnished with the Statement of the Case. With the
Statement of the Case, the appellant and the representative will be
furnished information on the right to file, and time limit for filing, a
Substantive Appeal; information on hearing and representation rights;
and a VA Form 1-9, ''Appeal to Board of Veterans' Appeals.''
(Authority: 38 U.S.C. 7105)
38 CFR 19.31 Supplemental Statement of the Case.
A Supplemental Statement of the Case, so identified, will be
furnished to the appellant and his or her representative, if any, when
additional pertinent evidence is received after a Statement of the Case
or the most recent Supplemental Statement of the Case has been issued,
when a material defect in the Statement of the Case or a prior
Supplemental Statement of the Case is discovered, or when, for any other
reason, the Statement of the Case or a prior Supplemental Statement of
the Case is inadequate. A Supplemental Statement of the Case will also
be issued following development pursuant to a remand by the Board unless
the only purpose of the remand is to assemble records previously
considered by the agency of original jurisdiction and properly discussed
in a prior Statement of the Case or Supplemental Statement of the Case
or unless the Board specifies in the remand that a Supplemental
Statement of the Case is not required. If the case is remanded to cure
a procedural defect, a Supplemental Statement of the Case will be issued
to assure full notification to the appellant of the status of the case,
unless the Board directs otherwise. A Supplemental Statement of the
Case is required following a hearing on appeal before field personnel
when new documentary evidence or evidence in the form of testimony
concerning the relevant facts or expert opinion is presented, but is not
required if only argument is presented.
(Authority: 38 U.S.C. 7105(d))
38 CFR 19.32 Closing of appeal for failure to respond to Statement of
the Case.
The agency of original jurisdiction may close the appeal without
notice to an appellant or his or her representative for failure to
respond to a Statement of the Case within the period allowed. However,
if a Substantive Appeal is subsequently received within the 1-year
appeal period (60-day appeal period for simultaneously contested
claims), the appeal will be considered to be reactivated.
(Authority: 38 U.S.C. 7105(d)(3))
38 CFR 19.33 Timely filing of Notice of Disagreement or Substantive
Appeal questioned within the agency of original jurisdiction.
If, within the agency of original jurisdiction, there is a question
as to the timely filing of a Notice of Disagreement or Substantive
Appeal, the procedures for an administrative appeal must be followed.
(Authority: 38 U.S.C. 7105, 7106)
38 CFR 19.34 Determination that Notice of Disagreement or Substantive
Appeal was not timely filed protested by claimant or representative.
Whether a Notice of Disagreement or Substantive Appeal has been filed
on time is an appealable issue. If the claimant or his or her
representative protests an adverse determination made by the agency of
original jurisdiction with respect to timely filing of the Notice of
Disagreement or Substantive Appeal, the claimant will be furnished a
Statement of the Case.
(Authority: 38 U.S.C. 7105)
38 CFR 19.35 Certification of appeals.
Following receipt of the Substantive Appeal, the agency of original
jurisdiction will certify the case to the Board of Veterans' Appeals.
Certification is accomplished by the completion of VA Form 1-8,
''Certification of Appeal.'' The certification is used for
administrative purposes and does not serve to either confer or deprive
the Board of Veterans' Appeals of jurisdiction over an issue.
(Authority: 38 U.S.C. 7105)
38 CFR 19.36 Notification of certification of appeal and transfer of
appellate record.
When an appeal is certified to the Board of Veterans' Appeals for
appellate review and the appellate record is transferred to the Board,
the appellant and his or her representative, if any, will be notified in
writing of the certification and transfer and of the time limit for
requesting a change in representation, for requesting a personal
hearing, and for submitting additional evidence described in Rule of
Practice 1304 ( 20.1304 of this chapter).
(Authority: 38 U.S.C. 7105)
38 CFR 19.37 Consideration of additional evidence received by the
agency of original jurisdiction after an appeal has been initiated.
(a) Evidence received prior to transfer of records to Board of
Veterans' Appeals. Evidence received by the agency of original
jurisdiction prior to transfer of the records to the Board of Veterans'
Appeals after an appeal has been initiated (including evidence received
after certification has been completed) will be referred to the
appropriate rating or authorization activity for review and disposition.
If the Statement of the Case and any prior Supplemental Statements of
the Case were prepared before the receipt of the additional evidence, a
Supplemental Statement of the Case will be furnished to the appellant
and his or her representative as provided in 19.31 of this part, unless
the additional evidence received duplicates evidence previously of
record which was discussed in the Statement of the Case or a prior
Supplemental Statement of the Case or the additional evidence is not
relevant to the issue, or issues, on appeal.
(b) Evidence received after transfer of records to the Board of
Veterans' Appeals. Additional evidence received by the agency of
original jurisdiction after the records have been transferred to the
Board of Veterans' Appeals for appellate consideration will be forwarded
to the Board if it has a bearing on the appellate issue or issues. The
Board will then determine what action is required with respect to the
additional evidence.
(Authority: 38 U.S.C. 7105(d)(1))
38 CFR 19.38 Action by agency of original jurisdiction when remand
received.
When a case is remanded by the Board of Veterans' Appeals, the agency
of original jurisdiction will complete the additional development of the
evidence or procedural development required. Following completion of
the development, the case will be reviewed to determine whether the
additional development, together with the evidence which was previously
of record, supports the allowance of all benefits sought on appeal. If
so, the Board and the appellant and his or her representative, if any,
will be promptly informed. If any benefits sought on appeal remain
denied following this review, the agency of original jurisdiction will
issue a Supplemental Statement of the Case concerning the additional
development pertaining to those issues in accordance with the provisions
of 19.31 of this part. Following the 60-day period allowed for a
response to the Supplemental Statement of the Case pursuant to Rule of
Practice 302, paragraph (c) ( 20.302(c) of this chapter), the case will
be returned to the Board for further appellate processing unless the
appeal is withdrawn or review of the response to the Supplemental
Statement of the Case results in the allowance of all benefits sought on
appeal. Remanded cases will not be closed for failure to respond to the
Supplemental Statement of the Case.
(Authority 38 U.S.C. 7105(d)(1))
19.39 -- 19.49 (Reserved)
38 CFR 19.38 Subpart C -- Administrative Appeals
38 CFR 19.50 Nature and form of administrative appeal.
(a) General. An administrative appeal from an agency of original
jurisdiction determination is an appeal taken by an official of the
Department of Veterans Affairs authorized to do so to resolve a conflict
of opinion or a question pertaining to a claim involving benefits under
laws administered by the Department of Veterans Affairs. Such appeals
may be taken not only from determinations involving dissenting opinions,
but also from unanimous determinations denying or allowing the benefit
claimed in whole or in part.
(b) Form of Appeal. An administrative appeal is entered by a
memorandum entitled ''Administrative Appeal'' in which the issues and
the basis for the appeal are set forth.
(Authority: 38 U.S.C. 7106)
38 CFR 19.51 Officials authorized to file administrative appeals and
time limits for filing.
The Secretary of Veterans Affairs authorizes certain officials of the
Department of Veterans Affairs to file administrative appeals within
specified time limits, as follows:
(a) Central Office -- (1) Officials. The Chief Benefits Director or
a Service Director of the Veterans Benefits Administration, the Chief
Medical Director or a service director of the Veterans Health
Administration, and the General Counsel.
(2) Time limit. Such officials must file an administrative appeal
within 1 year from the date of mailing notice of such determination to
the claimant.
(b) Agencies of original jurisdiction -- (1) Officials. Directors,
adjudication officers, and officials at comparable levels in field
offices deciding any claims for benefits, from any determination
originating within their established jurisdiction.
(2) Time limit. The Director or comparable official must file an
administrative appeal within 6 months from the date of mailing notice of
the determination to the claimant. Officials below the level of
Director must do so within 60 days from such date.
(c) The date of mailing. With respect to paragraphs (a) and (b) of
this section, the date of mailing notice of the determination to the
claimant will be presumed to be the same as the date of the letter of
notification to the claimant.
(Authority: 38 U.S.C. 7106)
38 CFR 19.52 Notification to claimant of filing of administrative
appeal.
When an administrative appeal is entered, the claimant and his or her
representative, if any, will be promptly furnished a copy of the
memorandum entitled ''Administrative Appeal,'' or an adequate summary
thereof, outlining the question at issue. They will be allowed a period
of 60 days to join in the appeal if they so desire. The claimant will
also be advised of the effect of such action and of the preservation of
normal appeal rights if he or she does not elect to join in the
administrative appeal.
(Authority: 38 U.S.C. 7106)
38 CFR 19.53 Restriction as to change in payments pending determination
of administrative appeals.
If an administrative appeal is taken from a review or determination
by the agency of original jurisdiction pursuant to 19.50 and 19.51 of
this part, that review or determination may not be used to effect any
change in payments until after a decision is made by the Board of
Veterans' Appeals.
(Authority: 38 U.S.C. 7106)
19.54-19.74 (Reserved)
38 CFR 19.53 Subpart D -- Hearings Before Traveling Sections of the Board of Veterans' Appeals
38 CFR 19.75 Travel Board hearing docket.
Travel Board hearings will be scheduled in the order in which
requests for such hearings are received by Department of Veterans
Affairs field facilities. Any requests submitted directly to the Board
will be transferred to the appropriate field facility and will not be
considered to have been filed for docketing purposes until received by
the applicable field facility. Each Departmental facility generating
appeals activity will:
(a) Mark each written request for a Travel Board hearing to show the
date of receipt, and
(b) Maintain a formal log showing, in the order that each request for
a Travel Board hearing is received:
(1) The date that each request for a Travel Board hearing was
received,
(2) The name of the appellant,
(3) The name of the representative,
(4) The applicable Departmental file number,
(5) Whether the request for a Travel Board hearing has been
withdrawn,
(6) And the date that the hearing was conducted or a notation that
the appellant failed to appear for the hearing.
(Authority: 38 U.S.C. 7110)
38 CFR 19.76 Notice of time and place of Travel Board hearing.
The agency of original jurisdiction will notify the appellant and his
or her representative of the place and time of a Travel Board hearing
not less than 60 days prior to the hearing date. This time limitation
does not apply to hearings which have been rescheduled due to a
postponement requested by an appellant, or on his or her behalf, or due
to the prior failure of an appellant to appear at a scheduled Travel
Board hearing with good cause. The requirement will also be deemed to
have been waived if an appellant accepts an earlier hearing date due to
the cancellation of another previously scheduled Travel Board hearing.
(Authority: 38 U.S.C. 7110)
38 CFR 19.77 Providing Statement of the Case when Travel Board hearing
has been requested.
If not previously furnished, the appellant and his or her
representative will be provided with a Statement of the Case not later
than the date on which the agency of original jurisdiction furnishes
them with notification of the place and time of the Travel Board
hearing. A Statement of the Case is not required when the only issue to
be considered by the traveling Section of the Board is the
reconsideration of a prior Board of Veterans' Appeals decision.
(Authority: 38 U.S.C. 7105(d)(1), 7110)
19.78 -- 19.99 (Reserved)
38 CFR 19.77 Subpart E -- Simultaneously Contested Claims
38 CFR 19.100 Notification of right to appeal in simultaneously
contested claims.
All interested parties will be specifically notified of the action
taken by the agency of original jurisdiction in a simultaneously
contested claim and of the right and time limit for initiation of an
appeal, as well as hearing and representation rights.
(Authority: 38 U.S.C. 7105A(a))
38 CFR 19.101 Notice to contesting parties on receipt of Notice of
Disagreement in simultaneously contested claims.
Upon the filing of a Notice of Disagreement in a simultaneously
contested claim, all interested parties and their representatives will
be furnished a copy of the Statement of the Case. The Statement of the
Case so furnished will contain only information which directly affects
the payment or potential payment of the benefit(s) which is (are) the
subject of that contested claim. The interested parties who filed
Notices of Disagreement will be duly notified of the right to file, and
the time limit within which to file, a Substantive Appeal and will be
furnished with VA Form 1-9, ''Appeal to Board of Veterans' Appeals.''
(Authority: 38 U.S.C. 7105A(b))
38 CFR 19.102 Notice of appeal to other contesting parties in
simultaneously contested claims.
When a Substantive Appeal is filed in a simultaneously contested
claim, the content of the Substantive Appeal will be furnished to the
other contesting parties to the extent that it contains information
which could directly affect the payment or potential payment of the
benefit which is the subject of the contested claim.
(Authority: 38 U.S.C. 7105A(b))
38 CFR 19.102 -- Pt. 20
38 CFR 19.102 -- PART 20 -- BOARD OF VETERANS' APPEALS: RULES OF PRACTICE
38 CFR 19.102 -- Subpart A -- General
Sec.
20.1 Rule 1. Purpose and construction of Rules of Practice.
20.2 Rule 2. Procedure in absence of specific Rule of Practice.
20.3 Rule 3. Definitions.
20.4 -- 20.99 (Reserved)
38 CFR 19.102 -- Subpart B -- The Board
20.100 Rule 100. Name, business hours, and mailing address of the
Board.
20.101 Rule 101. Jurisdiction of the Board.
20.102 Rule 102. Delegation of authority -- Rules of Practice.
20.103 -- 20.199 (Reserved)
38 CFR 19.102 -- Subpart C -- Commencement and Perfection of Appeal
20.200 Rule 200. What constitutes an appeal.
20.201 Rule 201. Notice of Disagreement.
20.202 Rule 202. Substantive Appeal.
20.203 Rule 203. Decision as to adequacy of the Substantive Appeal.
20.204 Rule 204. Withdrawal of Notice of Disagreement or Substantive
Appeal.
20.205 -- 20.299 (Reserved)
38 CFR 19.102 -- Subpart D -- Filing
20.300 Rule 300. Place of filing Notice of Disagreement and
Substantive Appeal.
20.301 Rule 301. Who can file an appeal.
20.302 Rule 302. Time limit for filing Notice of Disagreement,
Substantive Appeal, and response to Supplemental Statement of the Case.
20.303 Rule 303. Extension of time for filing Substantive Appeal and
response to Supplemental Statement of the Case.
20.304 Rule 304. Filing additional evidence does not extend time
limit for appeal.
20.305 Rule 305. Computation of time limit for filing.
20.306 Rule 306. Legal holidays.
20.307 -- 20.399 (Reserved)
38 CFR 19.102 -- Subpart E -- Administrative Appeals
20.400 Rule 400. Action by claimant or representative on
notification of administrative appeal.
20.401 Rule 401. Effect of decision on administrative or merged
appeal on claimant's appellate rights.
20.402 -- 20.499 (Reserved)
38 CFR 19.102 -- Subpart F -- Simultaneously Contested Claims
20.500 Rule 500. Who can file an appeal in simultaneously contested
claims.
20.501 Rule 501. Time limits for filing Notice of Disagreement,
Substantive Appeal, and response to Supplemental Statement of the Case
in simultaneously contested claims.
20.502 Rule 502. Time limit for response to notice of appeal by
another contesting party in a simultaneously contested claim.
20.503 Rule 503. Extension of time for filing a Substantive Appeal
in simultaneously contested claims.
20.504 Rule 504. Notices sent to last addresses of record in
simultaneously contested claims.
20.505 -- 20.599 (Reserved)
38 CFR 19.102 -- Subpart G -- Representation
20.600 Rule 600. Right to representation.
20.601 Rule 601. Only one representative recognized.
20.602 Rule 602. Representation by recognized organizations.
20.603 Rule 603. Representation by attorneys-at-law.
20.604 Rule 604. Representation by agents.
20.605 Rule 605. Other persons as representative.
20.606 Rule 606. Legal interns, law students and paralegals.
20.607 Rule 607. Revocation of a representative's authority to act.
20.608 Rule 608. Withdrawal of services by a representative.
20.609 Rule 609. Payment of representative's fees in proceedings
before Department of Veterans Affairs field personnel and before the
Board of Veterans' Appeals.
20.610 Rule 610. Payment of representative's expenses in proceedings
before Department of Veterans Affairs field personnel and before the
Board of Veterans' Appeals.
20.611 Rule 611. Continuation of representation following death of a
claimant or appellant.
20.612 -- 20.699 (Reserved)
38 CFR 19.102 -- Subpart H -- Hearings before the Board on Appeal
20.700 Rule 700. General.
20.701 Rule 701. Who may present oral argument.
20.702 Rule 702. Scheduling and notice of hearings conducted by the
Board of Veterans' Appeals in Washington, DC.
20.703 Rule 703. When right to Travel Board hearing arises.
20.704 Rule 704. Scheduling and notice of hearings conducted by
traveling Sections of the Board of Veterans' Appeals at Department of
Veterans Affairs field facilities.
20.705 Rule 705. Where hearings are conducted.
20.706 Rule 706. Functions of the presiding Member.
20.707 Rule 707. When a hearing panel makes the final appellate
decision.
20.708 Rule 708. Prehearing conference.
20.709 Rule 709. Procurement of additional evidence following a
hearing.
20.710 Rule 710. Witnesses at hearings.
20.711 Rule 711. Subpoenas.
20.712 Rule 712. Expenses of appellants, representatives, and
witnesses incident to hearings not reimbursable by the Government.
20.713 Rule 713. Hearings in simultaneously contested claims.
20.714 Rule 714. Record of hearing.
20.715 Rule 715. Recording of hearing by appellant or
representative.
20.716 Rule 716. Correction of hearing transcripts.
20.717 Rule 717. Loss of hearing tapes or transcripts -- motion for
new hearing.
20.718 -- 20.799 (Reserved)
38 CFR 19.102 -- Subpart I -- Evidence
20.800 Rule 800. Submission of additional evidence after initiation
of appeal.
20.801 -- 20.899 (Reserved)
38 CFR 19.102 -- Subpart J -- Action by the Board
20.900 Rule 900. Order of consideration of appeals.
20.901 Rule 901. Medical opinions and opinions of the General
Counsel.
20.902 Rule 902. Filing of requests for the procurement of opinions.
20.903 Rule 903. Notification of opinions secured by the Board and
opportunity for response.
20.904 Rule 904. Vacating a decision.
20.905 -- 20.999 (Reserved)
38 CFR 19.102 -- Subpart K -- Reconsideration
20.1000 Rule 1000. When reconsideration is accorded.
20.1001 Rule 1001. Filing and disposition of motion for
reconsideration.
20.1002 Rule 1002. (Reserved)
20.1003 Rule 1003. Hearings on reconsideration.
20.1004 -- 20.1099 (Reserved)
38 CFR 19.102 -- Subpart L -- Finality
20.1100 Rule 1100. Finality of decisions of the Board.
20.1101 Rule 1101. (Reserved)
20.1102 Rule 1102. Harmless error.
20.1103 Rule 1103. Finality of determinations of the agency of
original jurisdiction where appeal is not perfected.
20.1104 Rule 1104. Finality of determinations of the agency of
original jurisdiction affirmed on appeal.
20.1105 Rule 1105. New claim after promulgation of appellate
decision.
20.1106 Rule 1106. Claim for death benefits by survivor -- prior
unfavorable decisions during veteran's lifetime.
20.1107 -- 20.1199 (Reserved)
38 CFR 19.102 -- Subpart M -- Privacy Act
20.1200 Rule 1200. Privacy Act request -- appeal pending.
20.1201 Rule 1201. Amendment of appellate decisions.
20.1202 -- 20.1299 (Reserved)
38 CFR 19.102 -- Subpart N -- Miscellaneous
20.1300 Rule 1300. Access to Board records.
20.1301 Rule 1301. Disclosure of information.
20.1302 Rule 1302. Death of appellant during pendency of appeal.
20.1303 Rule 1303. Nonprecedential nature of Board decisions.
20.1304 Rule 1304. Request for change in representation, request for
personal hearing, or submission of additional evidence following
certification of an appeal to the Board of Veterans' Appeals.
Appendix A to Part 20 -- Cross-References
Authority: 38 U.S.C. 501(a).
Source: 57 FR 4109, Feb. 3, 1992, unless otherwise noted.
38 CFR 19.102 -- Subpart A -- General
38 CFR 20.1 Rule 1. Purpose and construction of Rules of Practice.
(a) Purpose. These rules establish the practices and procedures
governing appeals to the Board of Veterans' Appeals.
(Authority: 38 U.S.C. 501(a), 7102, 7104)
(b) Construction. These rules are to be construed to secure a just
and speedy decision in every appeal.
(Authority: 38 U.S.C. 501(a), 5107, 7104)
38 CFR 20.2 Rule 2. Procedure in absence of specific Rule of Practice.
Where in any instance there is no applicable rule or procedure, the
Chairman may prescribe a procedure which is consistent with the
provisions of title 38, United States Code, and these rules.
(Authority: 38 U.S.C. 501(a), 512(a), 7102, 7104)
38 CFR 20.3 Rule 3. Definitions.
As used in these Rules:
(a) Agency of original jurisdiction means the Department of Veterans
Affairs regional office, medical center, clinic, cemetery, or other
Department of Veterans Affairs facility which made the initial
determination on a claim or, if the applicable records are later
permanently transferred to another Department of Veterans Affairs
facility, its successor.
(b) Agent means a person who has met the standards and qualifications
for accreditation outlined in 14.629(b) of this chapter and who has
been properly designated under the provisions of Rule 604 ( 20.604 of
this part). It does not include representatives recognized under Rules
602, 603, or 605 ( 20.602, 20.603, or 20.605 of this part).
(c) Appellant means a claimant who has initiated an appeal to the
Board of Veterans' Appeals by filing a Notice of Disagreement pursuant
to the provisions of 38 U.S.C. 7105.
(d) Attorney-at-law means a member in good standing of a State bar.
(e) Benefit means any payment, service, commodity, function, or
status, entitlement to which is determined under laws administered by
the Department of Veterans Affairs pertaining to veterans and their
dependents and survivors.
(f) Claim means application made under title 38, United States Code,
and implementing directives for entitlement to Department of Veterans
Affairs benefits or for the continuation or increase of such benefits,
or the defense of a proposed agency adverse action concerning benefits.
(g) Claimant means a person who has filed a claim, as defined by
paragraph (f) of this section.
(h) Hearing on appeal means a hearing conducted after a Notice of
Disagreement has been filed in which argument and/or testimony is
presented concerning the determination, or determinations, by the agency
of original jurisdiction being appealed.
(i) Law student means an individual pursuing a Juris Doctor or
equivalent degree at a school approved by a recognized accrediting
association.
(j) Legal intern means a graduate of a law school, which has been
approved by a recognized accrediting association, who has not yet been
admitted to a State bar.
(k) Motion means a request that the Board rule on some question which
is subsidiary to the ultimate decision on the outcome of an appeal. For
example, the questions of whether a representative's fees are reasonable
or whether additional evidence may be submitted more than 90 days after
certification of an appeal to the Board are raised by motion (see Rule
609, paragraph (i), and Rule 1304, paragraph (b) 20.609(i) and
20.1304(b) of this part). Unless raised orally at a personal hearing
before Members of the Board, motions for consideration by the Board must
be made in writing. No formal type of document is required. The motion
may be in the form of a letter which contains the necessary information.
(l) Paralegal means a graduate of a course of paralegal instruction
given by a school which has been approved by a recognized accrediting
association, or an individual who has equivalent legal experience.
(m) Simultaneously contested claim refers to the situation in which
the allowance of one claim results in the disallowance of another claim
involving the same benefit or the allowance of one claim results in the
payment of a lesser benefit to another claimant.
(n) State includes any State, possession, territory, or Commonwealth
of the United States, as well as the District of Columbia.
(Authority: 38 U.S.C. 501(a))
20.4 -- 20.99 (Reserved)
38 CFR 20.3 Subpart B -- The Board
38 CFR 20.100 Rule 100. Name, business hours, and mailing address of
the Board.
(a) Name. The name of the Board is the Board of Veterans' Appeals.
(b) Business hours. The Board is open during business hours on all
days except Saturday, Sunday and legal holidays. Business hours are
from 8 a.m. to 4:30 p.m.
(c) Mailing address. Except as otherwise noted in these Rules, mail
to the Board must be addressed to: Chairman (01), Board of Veterans'
Appeals, 810 Vermont Avenue NW., Washington, DC 20420.
(Authority: 38 U.S.C. 7101(a))
38 CFR 20.101 Rule 101. Jurisdiction of the Board.
(a) General. All questions of law and fact necessary to a decision
by the Secretary of Veterans Affairs under a law that affects the
provision of benefits by the Secretary to veterans or their dependents
or survivors are subject to review on appeal to the Secretary.
Decisions in such appeals are made by the Board of Veterans' Appeals.
In its decisions, the Board is bound by applicable statutes, the
regulations of the Department of Veterans Affairs and precedent opinions
of the General Counsel of the Department of Veterans Affairs. Examples
of the issues over which the Board has jurisdiction include, but are not
limited to, the following:
(1) Entitlement to, and benefits resulting from, service-connected
disability or death (38 U.S.C. chapter 11).
(2) Dependency and indemnity compensation for service-connected
death, including benefits in certain cases of inservice or
service-connected deaths (38 U.S.C. 1312) and certification and
entitlement to death gratuity (38 U.S.C. 1323).
(3) Benefits for survivors of certain veterans rated totally disabled
at time of death (38 U.S.C. 1318).
(4) Entitlement to nonservice-connected disability pension, service
pension and death pension (38 U.S.C. chapter 15).
(5) All-Volunteer Force Educational Assistance Program (38 U.S.C.
chapter 30).
(6) Training and Rehabilitation for Veterans with Service-Connected
Disabilities (38 U.S.C. chapter 31).
(7) Post-Vietnam Era Veterans' Educational Assistance (38 U.S.C.
chapter 32).
(8) Veterans' Educational Assistance (38 U.S.C. chapter 34).
(9) Survivors' and Dependents' Educational Assistance (38 U.S.C.
chapter 35).
(10) Veterans' Job Training (Pub. L. 98-77, as amended; 38 CFR
21.4600 et seq.).
(11) Educational Assistance for Members of the Selected Reserve (10
U.S.C. chapter 106).
(12) Educational Assistance Test Program (10 U.S.C. chapter 107; 38
CFR 21.5701 et seq.).
(13) Educational Assistance Pilot Program (10 U.S.C. chapter 107; 38
CFR 21.5290 et seq.).
(14) Matters arising under National Service Life Insurance and United
States Government Life Insurance (38 U.S.C. chapter 19).
(15) Payment or reimbursement for unauthorized medical expenses (38
U.S.C. 1728).
(16) Burial benefits and burial in National Cemeteries (38 U.S.C.
chapters 23 and 24).
(17) Benefits for persons disabled by medical treatment or vocational
rehabilitation (38 U.S.C. 1151).
(18) Basic eligibility for home, condominium and mobile home loans as
well as waiver of payment of loan guaranty indebtedness (38 U.S.C.
chapter 37, 38 U.S.C. 5302).
(19) Waiver of recovery of overpayments (38 U.S.C. 5302).
(20) Forfeiture of rights, claims or benefits for fraud, treason, or
subversive activities (38 U.S.C. 6102-6105).
(21) Character of discharge (38 U.S.C. 5303).
(22) Determinations as to duty status (38 U.S.C. 101(21)-(24)).
(23) Determinations as to marital status (38 U.S.C. 101(3), 103).
(24) Determination of dependency status as parent or child (38 U.S.C.
101(4), (5)).
(25) Validity of claims and effective dates of benefits (38 U.S.C.
chapter 51).
(26) Apportionment of benefits (38 U.S.C. 5307).
(27) Payment of benefits while a veteran is hospitalized and
questions regarding an estate of an incompetent institutionalized
veteran (38 U.S.C. 5503).
(28) Benefits for surviving spouses and children of deceased veterans
under Public Law 97-377, section 156 (38 CFR 3.812(d)).
(29) Eligibility for automobile and automobile adaptive equipment
assistance (38 U.S.C. chapter 39).
(b) Appellate jurisdiction of determinations of the Veterans Health
Administration. The Board's appellate jurisdiction extends to questions
of eligibility for hospitalization, outpatient treatment, and nursing
home and domiciliary care; for devices such as prostheses, canes,
wheelchairs, back braces, orthopedic shoes, and similar appliances; and
for other benefits administered by the Veterans Health Administration.
Medical determinations, such as determinations of the need for and
appropriateness of specific types of medical care and treatment for an
individual, are not adjudicative matters and are beyond the Board's
jurisdiction. Typical examples of these issues are whether a particular
drug should be prescribed, whether a specific type of physiotherapy
should be ordered, and similar judgmental treatment decisions with which
an attending physician may be faced.
(c) Appeals as to jurisdiction. All claimants have the right to
appeal a determination made by the agency of original jurisdiction that
the Board does not have jurisdictional authority to review a particular
issue. This includes questions relating to the timely filing and
adequacy of the Notice of Disagreement and the Substantive Appeal.
Subject to review by courts of competent jurisdiction, only the Board of
Veterans' Appeals will make final decisions with respect to its
jurisdiction.
(Authority: 38 U.S.C. 511(a), 7104)
38 CFR 20.102 Rule 102. Delegation of authority -- Rules of Practice.
(a) The authority exercised by the Chairman of the Board of Veterans'
Appeals described in Rule 900(c) ( 20.900(c) of this part) MAY ALSO be
exercised by the Vice Chairman of the Board.
(b) The authority exercised by the Chairman of the Board of Veterans'
Appeals described in Rules 608(b), 717(d), and 1001(c) ( 20.608(b),
20.717(d), and 20.1001(c) of this part) may also be exercised by the
Vice Chairman of the Board and by Deputy Vice Chairmen of the Board.
(c) The authority exercised by the Chairman of the Board of Veterans'
Appeals described in Rule 2 ( 20.2 of this part) may also be exercised
by the Vice Chairman of the Board; by Deputy Vice Chairmen of the
Board; and, in conjunction with a proceeding or motion in connection
therewith assigned to them by the Chairman, by Members of the Board who
have been designated as the Chief Member of a Section of the Board or as
the Acting Chief Member of a Section of the Board and by a Member of the
Board who is acting as the presiding Member of a hearing panel.
(d) The authority exercised by the Chairman of the Board of Veterans'
Appeals described in Rules 606(e), 711(e), 711(h), and 1304(b) (
20.606(e), 20.711(e), 20.711(h), and 20.1304(b) of this part) may also
be exercised by the Vice Chairman of the Board and by Deputy Vice
Chairmen of the Board. When, however, the matter arises in conjunction
with an appeal or any proceeding instituted before the Board, or any
motion in connection therewith, assigned to a Section, or Sections, by
the Chairman for a hearing and/or disposition, this authority shall be
exercised by the Members of the Board Section, or Sections, involved.
(Authority: 38 U.S.C. 512(a), 7102, 7104)
(57 FR 4109, Feb. 3, 1992; 57 FR 20055, May 11, 1992; 57 FR 38443,
Aug. 25, 1992)
20.103 -- 20.199 (Reserved)
38 CFR 20.102 Subpart C -- Commencement and Perfection of Appeal
38 CFR 20.200 Rule 200. What constitutes an appeal.
An appeal consists of a timely filed Notice of Disagreement in
writing and, after a Statement of the Case has been furnished, a timely
filed Substantive Appeal.
(Authority: 38 U.S.C. 7105)
38 CFR 20.201 Rule 201. Notice of Disagreement.
A written communication from a claimant or his or her representative
expressing dissatisfaction or disagreement with an adjudicative
determination by the agency of original jurisdiction and a desire to
contest the result will constitute a Notice of Disagreement. While
special wording is not required, the Notice of Disagreement must be in
terms which can be reasonably construed as disagreement with that
determination and a desire for appellate review. If the agency of
original jurisdiction gave notice that adjudicative determinations were
made on several issues at the same time, the specific determinations
with which the claimant disagrees must be identified. For example, if
service connection was denied for two disabilities and the claimant
wishes to appeal the denial of service connection with respect to only
one of the disabilities, the Notice of Disagreement must make that
clear.
(Authority: 38 U.S.C. 7105)
38 CFR 20.202 Rule 202. Substantive Appeal.
A Substantive Appeal consists of a properly completed VA Form 1-9,
''Appeal to Board of Veterans' Appeals,'' or correspondence containing
the necessary information. If the Statement of the Case and any prior
Supplemental Statements of the Case addressed several issues, the
Substantive Appeal must either indicate that the appeal is being
perfected as to all of those issues or must specifically identify the
issues appealed. The Substantive Appeal should set out specific
arguments relating to errors of fact or law made by the agency of
original jurisdiction in reaching the determination, or determinations,
being appealed. To the extent feasible, the argument should be related
to specific items in the Statement of the Case and any prior
Supplemental Statements of the Case. The Board will construe such
arguments in a liberal manner for purposes of determining whether they
raise issues on appeal, but the Board may dismiss any appeal which fails
to allege specific error of fact or law in the determination, or
determinations, being appealed. The Board will not presume that an
appellant agrees with any statement of fact contained in a Statement of
the Case or a Supplemental Statement of the Case which is not
specifically contested. Proper completion and filing of a Substantive
Appeal are the last actions the appellant needs to take to perfect an
appeal.
(Authority: 38 U.S.C. 7105(d)(3)-(5))
(Approved by the Office of Management and Budget under control number
2900-0085)
38 CFR 20.203 Rule 203. Decision as to adequacy of the Substantive
Appeal.
A decision as to the adequacy of allegations of error of fact or law
in a Substantive Appeal will be made by the Board of Veterans' Appeals.
When the Board raises the issue of adequacy of the Substantive Appeal,
the appellant and representative, if any, will be given notice of the
issue and a period of 60 days following the date on which such notice is
mailed to present written argument or to request a hearing to present
oral argument on this question. The date of mailing of the notice will
be presumed to be the same as the date of the letter of notification.
(Authority: 38 U.S.C. 7105(d)(3), 7108)
38 CFR 20.204 Rule 204. Withdrawal of Notice of Disagreement or
Substantive Appeal.
(a) Notice of Disagreement. A Notice of Disagreement may be
withdrawn in writing before a timely Substantive Appeal is filed.
(Authority: 38 U.S.C. 7105(d)(1))
(b) Substantive Appeal. A Substantive Appeal may be withdrawn in
writing at any time before the Board of Veterans' Appeals promulgates a
decision.
(Authority: 38 U.S.C. 7105(d)(3))
(c) Who May Withdraw. Withdrawal may be by the appellant or by his
or her authorized representative, except that a representative may not
withdraw either a Notice of Disagreement or Substantive Appeal filed by
the appellant personally without the express written consent of the
appellant. The agency of original jurisdiction may not withdraw a
Notice of Disagreement or a Substantive Appeal after filing of either or
both.
(Authority: 38 U.S.C. 7105(b)(2))
20.205 -- 20.299(Reserved)
38 CFR 20.204 Subpart D -- Filing
38 CFR 20.300 Rule 300. Place of filing Notice of Disagreement and
Substantive Appeal.
The Notice of Disagreement and Substantive Appeal must be filed with
the Department of Veterans Affairs office from which the claimant
received notice of the determination being appealed unless notice has
been received that the applicable Department of Veterans Affairs records
have been transferred to another Department of Veterans Affairs office.
In that case, the Notice of Disagreement or Substantive Appeal must be
filed with the Department of Veterans Affairs office which has assumed
jurisdiction over the applicable records.
(Authority: 38 U.S.C. 7105 (b)(1), (d)(3))
38 CFR 20.301 Rule 301. Who can file an appeal.
(a) Persons authorized. A Notice of Disagreement and/or a
Substantive Appeal may be filed by a claimant personally, or by his or
her representative if a proper Power of Attorney or declaration of
representation, as applicable, is on record or accompanies such Notice
of Disagreement or Substantive Appeal.
(b) Claimant rated incompetent by Department of Veterans Affairs or
under disability and unable to file. If an appeal is not filed by a
person listed in paragraph (a) of this section, and the claimant is
rated incompetent by the Department of Veterans Affairs or has a
physical, mental, or legal disability which prevents the filing of an
appeal on his or her own behalf, a Notice of Disagreement and a
Substantive Appeal may be filed by a fiduciary appointed to manage the
claimant's affairs by the Department of Veterans Affairs or a court, or
by a person acting as next friend if the appointed fiduciary fails to
take needed action or no fiduciary has been appointed.
(c) Claimant under disability and able to file. Notwithstanding the
fact that a fiduciary may have been appointed for a claimant, an appeal
filed by a claimant will be accepted.
(Authority: 38 U.S.C. 7105(b)(2))
38 CFR 20.302 Rule 302. Time limit for filing Notice of Disagreement,
Substantive Appeal, and response to Supplemental Statement of the Case.
(a) Notice of Disagreement. Except in the case of simultaneously
contested claims, a claimant, or his or her representative, must file a
Notice of Disagreement with a determination by the agency of original
jurisdiction within one year from the date that that agency mails notice
of the determination to him or her. Otherwise, that determination will
become final. The date of mailing the letter of notification of the
determination will be presumed to be the same as the date of that letter
for purposes of determining whether an appeal has been timely filed.
(Authority: 38 U.S.C. 7105(b)(1))
(b) Substantive Appeal. Except in the case of simultaneously
contested claims, a Substantive Appeal must be filed within 60 days from
the date that the agency of original jurisdiction mails the Statement of
the Case to the appellant, or within the remainder of the 1-year period
from the date of mailing of the notification of the determination being
appealed, whichever period ends later. The date of mailing of the
Statement of the Case will be presumed to be the same as the date of the
Statement of the Case and the date of mailing the letter of notification
of the determination will be presumed to be the same as the date of that
letter for purposes of determining whether an appeal has been timely
filed.
(Authority: 38 U.S.C. 7105 (b)(1), (d)(3))
(c) Response to Supplemental Statement of the Case. Where a
Supplemental Statement of the Case is furnished, a period of 60 days
from the date of mailing of the Supplemental Statement of the Case will
be allowed for response. The date of mailing of the Supplemental
Statement of the Case will be presumed to be the same as the date of the
Supplemental Statement of the Case for purposes of determining whether a
response has been timely filed. Provided a Substantive Appeal has been
timely filed in accordance with paragraph (b) of this section, the
response to a Supplemental Statement of the Case is optional and is not
required for the perfection of an appeal, unless the Supplemental
Statement of the Case covers issues that were not included in the
original Statement of the Case. If a Supplemental Statement of the Case
covers issues that were not included in the original Statement of the
Case, a Substantive Appeal must be filed with respect to those issues
within 60 days in order to perfect an appeal with respect to the
additional issues.
(Authority: 38 U.S.C. 7105(d)(3))
38 CFR 20.303 Rule 303. Extension of time for filing Substantive
Appeal and response to Supplemental Statement of the Case.
An extension of the 60-day period for filing a Substantive Appeal, or
the 60-day period for responding to a Supplemental Statement of the Case
when such a response is required, may be granted for good cause. A
request for such an extension must be in writing and must be made prior
to expiration of the time limit for filing the Substantive Appeal or the
response to the Supplemental Statement of the Case. The request for
extension must be filed with the Department of Veterans Affairs office
from which the claimant received notice of the determination being
appealed, unless notice has been received that the applicable records
have been transferred to another Department of Veterans Affairs office.
A denial of a request for extension may be appealed to the Board.
(Authority: 38 U.S.C. 7105(d)(3))
38 CFR 20.304 Rule 304. Filing additional evidence does not extend
time limit for appeal.
The filing of additional evidence after receipt of notice of an
adverse determination does not extend the time limit for initiating or
completing an appeal from that determination.
(Authority: 38 U.S.C. 7105)
38 CFR 20.305 Rule 305. Computation of time limit for filing.
(a) Acceptance of postmark date. When these Rules require that any
written document be filed within a specified period of time, a response
postmarked prior to expiration of the applicable time limit will be
accepted as having been timely filed. In the event that the postmark is
not of record, the postmark date will be presumed to be five days prior
to the date of receipt of the document by the Department of Veterans
Affairs. In calculating this 5-day period, Saturdays, Sundays and legal
holidays will be excluded.
(b) Computation of time limit. In computing the time limit for
filing a written document, the first day of the specified period will be
excluded and the last day included. Where the time limit would expire
on a Saturday, Sunday, or legal holiday, the next succeeding workday
will be included in the computation.
(Authority: 38 U.S.C. 7105)
38 CFR 20.306 Rule 306. Legal holidays.
For the purpose of Rule 305 ( 20.305 of this part), the legal
holidays, in addition to any other day appointed as a holiday by the
President or the Congress of the United States, are as follows: New
Year's Day -- January 1; Inauguration Day -- January 20 of every fourth
year or, if the 20th falls on a Sunday, the next succeeding day selected
for public observance of the inauguration; Birthday of Martin Luther
King, Jr. -- Third Monday in January; Washington's Birthday -- Third
Monday in February; Memorial Day -- Last Monday in May; Independence
Day -- July 4; Labor Day -- First Monday in September; Columbus Day --
Second Monday in October; Veterans Day -- November 11; Thanksgiving
Day -- Fourth Thursday in November; and Christmas Day -- December 25.
When a holiday occurs on a Saturday, the Friday immediately before is
the legal public holiday. When a holiday occurs on a Sunday, the Monday
immediately after is the legal public holiday.
(Authority: 5 U.S.C. 6103)
20.307 -- 20.399) (Reserved)
38 CFR 20.306 Subpart E -- Administrative Appeals
38 CFR 20.400 Rule 400. Action by claimant or representative on
notification of administrative appeal.
When an official of the Department of Veterans Affairs enters an
administrative appeal, the claimant and his or her representative, if
any, are notified and given a period of 60 days from the date of mailing
of the letter of notification to join in the administrative appeal. The
date of mailing of the letter of notification will be presumed to be the
same as the date of the letter of notification. If the claimant, or the
representative acting on his or her behalf, elects to join in the
administrative appeal, it becomes a ''merged appeal'' and the rules
governing an appeal initiated by a claimant are for application. The
presentation of evidence or argument by the claimant or his or her
representative in response to notification of the right to join in the
administrative appeal will be construed as an election to join in the
administrative appeal. If the claimant does not authorize the merger,
he or she must hold such evidence or argument in abeyance until
resolution of the administrative appeal.
(Authority: 38 U.S.C. 7106)
38 CFR 20.401 Rule 401. Effect of decision on administrative or merged
appeal on claimant's appellate rights.
(a) Merged appeal. If the administrative appeal is merged, the
appellate decision on the merged appeal will constitute final
disposition of the claimant's appellate rights.
(b) Appeal not merged. If the claimant does not authorize merger,
normal appellate rights on the same issue are preserved, and a decision
in a separate appeal perfected by the claimant will be entered by a
Section of the Board which does not include Members who made the
decision on the administrative appeal. The period of time from the date
of notification to the claimant of the administrative appeal to the date
of the Board's decision on the administrative appeal is not chargeable
to the claimant for purposes of determining the time limit for
perfecting his or her separate appeal.
(Authority: 38 U.S.C. 7106)
20.402 -- 20.499 (Reserved)
38 CFR 20.401 Subpart F -- Simultaneously Contested Claims
38 CFR 20.500 Rule 500. Who can file an appeal in simultaneously
contested claims.
In a simultaneously contested claim, any claimant or representative
of a claimant may file a Notice of Disagreement or Substantive Appeal
within the time limits set out in Rule 501 ( 20.501 of this part).
(Authority: 38 U.S.C. 7105(b)(2), 7105A)
38 CFR 20.501 Rule 501. Time limits for filing Notice of Disagreement,
Substantive Appeal, and response to Supplemental Statement of the Case
in simultaneously contested claims.
(a) Notice of Disagreement. In simultaneously contested claims, the
Notice of Disagreement from the person adversely affected must be filed
within 60 days from the date of mailing of the notification of the
determination to him or her; otherwise, that determination will become
final. The date of mailing of the letter of notification will be
presumed to be the same as the date of that letter for purposes of
determining whether a Notice of Disagreement has been timely filed.
(Authority: 38 U.S.C. 7105A(a))
(b) Substantive Appeal. In the case of simultaneously contested
claims, a Substantive Appeal must be filed within 30 days from the date
of mailing of the Statement of the Case. The date of mailing of the
Statement of the Case will be presumed to be the same as the date of the
Statement of the Case for purposes of determining whether an appeal has
been timely filed.
(Authority: 38 U.S.C. 7105A(b))
(c) Supplemental Statement of the Case. Where a Supplemental
Statement of the Case is furnished by the agency of original
jurisdiction in a simultaneously contested claim, a period of 30 days
from the date of mailing of the Supplemental Statement of the Case will
be allowed for response, but the receipt of a Supplemental Statement of
the Case will not extend the time allowed for filing a Substantive
Appeal as set forth in paragraph (b) of this section. The date of
mailing of the Supplemental Statement of the Case will be presumed to be
the same as the date of the Supplemental Statement of the Case for
purposes of determining whether a response has been timely filed.
Provided a Substantive Appeal has been timely filed in accordance with
paragraph (b) of this section, the response to a Supplemental Statement
of the Case is optional and is not required for the perfection of an
appeal, unless the Supplemental Statement of the Case covers issues that
were not included in the original Statement of the Case. If a
Supplemental Statement of the Case covers issues that were not included
in the original Statement of the Case, a Substantive Appeal must be
filed with respect to those issues within 30 days of the date of mailing
of the Supplemental Statement of the Case in order to perfect an appeal
with respect to the additional issues.
(Authority: 38 U.S.C. 7105(d)(3), 7105A(b))
38 CFR 20.502 Rule 502. Time limit for response to notice of appeal by
another contesting party in a simultaneously contested claim.
Notice of an appeal by another contesting party in a simultaneously
contested claim is given by sending a copy of that party's Substantive
Appeal to all other contesting parties. A period of 30 days from the
date of mailing of the copy of the Substantive Appeal is allowed for
filing a brief or argument in answer. The date of mailing of the copy
will be presumed to be the same as the date of the letter which
accompanies the copy.
(Authority: 38 U.S.C. 7105A(b))
38 CFR 20.503 Rule 503. Extension of time for filing a Substantive
Appeal in simultaneously contested claims.
An extension of the 30-day period to file a Substantive Appeal in
simultaneously contested claims may be granted if good cause is shown.
In granting an extension, consideration will be given to the interests
of the other parties involved. A request for such an extension must be
in writing and must be made prior to expiration of the time limit for
filing the Substantive Appeal.
(Authority: 38 U.S.C. 7105A(b))
38 CFR 20.504 Rule 504. Notices sent to last addresses of record in
simultaneously contested claims.
Notices in simultaneously contested claims will be forwarded to the
last address of record of the parties concerned and such action will
constitute sufficient evidence of notice.
(Authority: 38 U.S.C. 7105A(b))
20.505 -- 20.599 (Reserved)
38 CFR 20.504 Subpart G -- Representation
Cross-Reference: In cases involving access to medical records
relating to drug abuse, alcoholism, alcohol abuse, sickle cell anemia,
or infection with the human immunodeficiency virus, also see 38 U.S.C.
7332.
38 CFR 20.600 Rule 600. Right to representation.
An appellant will be accorded full right to representation in all
stages of an appeal by a recognized organization, attorney, agent, or
other authorized person.
(Authority: 38 U.S.C. 5901-5905, 7105(a))
38 CFR 20.601 Rule 601. Only one representative recognized.
A specific claim may be prosecuted at any one time by only one
recognized organization, attorney, agent or other person properly
designated to represent the appellant.
(Authority: 38 U.S.C. 7105(b)(2))
38 CFR 20.602 Rule 602. Representation by recognized organizations.
In order to designate a recognized organization as his or her
representative, an appellant must execute a VA Form 21-22, ''Appointment
of Veterans Service Organization as Claimant's Representative.'' This
form gives the organization power of attorney to represent the
appellant. The designation will be effective when it is received by the
agency of original jurisdiction or, if the appellate record has been
certified to the Board for review, by the Board of Veterans' Appeals. A
properly filed designation made prior to appeal will continue to be
honored, unless it has been revoked by the appellant or unless the
representative has properly withdrawn.
(Authority: 38 U.S.C. 7105(b)(2))
38 CFR 20.603 Rule 603. Representation by attorneys-at-law.
(a) Designation. An attorney-at-law may be designated as an
appellant's representative through a properly executed VA Form 2-22a,
''Appointment of Attorney or Agent as Claimant's Representative.'' This
form gives the attorney power of attorney to represent the appellant.
In lieu thereof, an attorney may state in writing on his or her
letterhead that he or she is authorized to represent the appellant in
order to have access to information in the appellant's file pertinent to
the particular claim presented. For an attorney to have complete access
to all information in an individual's records, the attorney must provide
a signed consent from the appellant or the appellant's guardian. Such
consent shall be equivalent to an executed power of attorney. The
designation must be of an individual attorney, rather than a firm or
partnership. An appellant may limit an attorney's right to act as his
or her representative in an appeal to representation with respect to a
specific claim for one or more specific benefits by noting the
restriction in the written designation. Unless specifically noted to
the contrary, however, designations of an attorney as a representative
will extend to all matters with respect to claims for benefits under
laws administered by the Department of Veterans Affairs. Designations
are effective when they are received by the agency of original
jurisdiction or, if the appellate record has been certified to the Board
for review, by the Board of Veterans' Appeals. A properly filed
designation made prior to appeal will continue to be honored, unless it
has been revoked or unless the representative has properly withdrawn.
Legal interns, law students, and paralegals may not be independently
accredited to represent appellants under this Rule.
(b) Attorneys employed by recognized organization. A recognized
organization may employ an attorney-at-law to represent an appellant.
If the attorney so employed is not an accredited representative of the
recognized organization, the signed consent of the appellant for the
substitution of representatives must be obtained and submitted to the
agency of original jurisdiction or, if the appellate record has been
certified to the Board for review, to the Board of Veterans' Appeals.
When the signed consent is received by the agency of original
jurisdiction or the Board, as applicable, the attorney will be
recognized as the appellant's representative in lieu of the
organization.
(c) Participation of associated or affiliated attorneys. With the
specific written consent of the appellant, an attorney associated or
affiliated with the appellant's attorney of record, including an
attorney employed by the same legal services office as the attorney of
record, may assist in representation of the appellant and may have
access to the appellant's Department of Veterans Affairs records to the
same extent as the attorney of record. Unless revoked by the appellant,
such consent will remain effective in the event the original attorney of
record is replaced by another attorney who is a member of the same law
firm or an attorney employed by the same legal services office. The
consent must include the name of the veteran; the name of the appellant
if other than the veteran (e.g., a veteran's survivor, a guardian, or a
fiduciary appointed to receive VA benefits on an individual's behalf);
the applicable Department of Veterans Affairs file number; the name of
the attorney of record; the consent of the appellant for the use of the
services of the associated or affiliated attorney and for that
individual to have access to applicable Department of Veterans Affairs
records; and the name of the associated or affiliated attorney who will
be assisting in the case. The consent must be filed with the agency of
original jurisdiction or, if the appellate record has been certified to
the Board for review, with the Board of Veterans' Appeals. The
presiding Member at a hearing on appeal may require that not more than
one attorney participate in the examination of any one witness or impose
other reasonable limitations to ensure orderly conduct of the hearing.
(Authority: 38 U.S.C. 5901, 5904)
38 CFR 20.604 Rule 604. Representation by agents.
(a) Designation. The designation of an agent will be by a duly
executed power of attorney, VA Form 2-22a, ''Appointment of Attorney or
Agent as Claimant's Representative,'' or its equivalent. The
designation must be of an individual, rather than a firm or partnership.
The designation will be effective when it is received by the agency of
original jurisdiction or, if the appellate record has been certified to
the Board for review, by the Board of Veterans' Appeals. A properly
filed designation made prior to appeal will continue to be honored,
unless it has been revoked or unless the representative has properly
withdrawn.
(b) Admission to practice. The provisions of 38 U.S.C. 5904 and of
14.629(b) of this chapter are applicable to the admission of agents to
practice before the Department of Veterans Affairs. Authority for
making determinations concerning admission to practice rests with the
General Counsel of the Department of Veterans Affairs, and any questions
concerning admissions to practice should be addressed to: Office of the
General Counsel (022A), Department of Veterans Affairs, 810 Vermont
Avenue, NW., Washington, DC 20420.
(Authority: 38 U.S.C. 5904)
38 CFR 20.605 Rule 605. Other persons as representative.
(a) Scope of rule. This section applies to representation other than
by a recognized organization, an agent admitted to practice before the
Department of Veterans Affairs, or an attorney-at-law.
(b) Who may act as representative. Any competent person may be
recognized as a representative for a particular claim, unless that
person has been barred from practice before the Department of Veterans
Affairs.
(c) Designation. The designation of an individual to act as an
appellant's representative may be made by executing a VA Form 2-22a,
''Appointment of Attorney or Agent as Claimant's Representative.'' This
form gives the individual power of attorney to represent the appellant
in all matters pertaining to the presentation and prosecution of claims
for any and all benefits under laws administered by the Department of
Veterans Affairs. In lieu of using the form, the designation may be by
a written document signed by both the appellant and the individual
representative, which may be in the form of a letter, which authorizes a
named individual to act as the appellant's representative only with
respect to a specific claim involving one or more specific benefits.
The document must include the name of the veteran; the name of the
appellant if other than the veteran (e.g., a veteran's survivor, a
guardian, or a fiduciary appointed to receive VA benefits on an
individual's behalf); the applicable Department of Veterans Affairs
file number; the appellant's consent for the individual representative
to have access to his or her Department of Veterans Affairs records;
the name of the individual representative; a description of the
specific claim for benefits to which the designation of representation
applies; and a certification that no compensation will be charged or
paid for the individual representative's services. The designation, in
either form, must be filed with the agency of original jurisdiction or,
if the appellate record has been certified to the Board for review, with
the Board of Veterans' Appeals. The designation will be effective when
it is received by the agency of original jurisdiction or, if the
appellate record has been certified to the Board for review, by the
Board of Veterans' Appeals. A properly filed designation made prior to
appeal will continue to be honored, unless it has been revoked or unless
the representative has properly withdrawn.
(d) Representation of more than one appellant. An individual
recognized as an appellant's representative under this Rule may
represent only one appellant. If an individual has been recognized as a
representative for one appellant and wishes to represent another
appellant, he or she must obtain permission to do so from the Office of
the General Counsel as provided in 14.630 of this chapter.
(Authority: 38 U.S.C. 5903)
38 CFR 20.606 Rule 606. Legal interns, law students and paralegals.
(a) When services of legal interns, law students and paralegals may
be used. Not more than two legal interns, law students or paralegals
may assist an attorney-at-law in the presentation of evidence and
argument in appeals before the Board of Veterans' Appeals in Washington,
DC, or before traveling Sections of the Board at Department of Veterans
Affairs field facilities.
(b) Consent of appellant. If it is contemplated that a legal intern,
law student, or paralegal will assist in the appeal, written consent
must be obtained from the appellant. The written consent must include
the name of the veteran; the name of the appellant if other than the
veteran (e.g., a veteran's survivor, a guardian, or a fiduciary
appointed to receive VA benefits on an individual's behalf); the
applicable Department of Veterans Affairs file number; the name of the
attorney-at-law; the consent of the appellant for the use of the
services of legal interns, law students, or paralegals and for such
individuals to have access to applicable Department of Veterans Affairs
records; and the names of the legal interns, law students, or
paralegals who will be assisting in the case. In the case of appeals
before the Board in Washington, DC, the signed consent must be submitted
to: Chief, Hearing Section (014B), Board of Veterans' Appeals, 810
Vermont Avenue, NW., Washington, DC 20420. In the case of appeals
before traveling Sections of the Board, the consent must be presented to
the presiding Member of the traveling Section as noted in paragraph (d).
Unless revoked by the appellant, such consent will remain effective in
the event the original attorney of record is replaced by another
attorney who is a member of the same law firm or another attorney
employed by the same legal services office.
(c) Supervision. Legal interns, law students and paralegals must be
under the direct supervision of a recognized attorney-at-law in order to
prepare and present cases before the Board of Veterans' Appeals.
(d) Hearings. Legal interns, law students and paralegals who desire
to participate at a hearing before the Board in Washington, DC, must
make advance arrangements with the Chief of the Hearing Section and
submit written authorization from the attorney naming the individual who
will be participating in the hearing. In the case of proceedings before
traveling Sections of the Board in the field, the attorney-at-law must
inform the office of the Department of Veterans Affairs official who
gave notice of the Travel Board hearing date and time not more than 10
days prior to the scheduled hearing date that the services of a legal
intern, law student, or paralegal will be used at the hearing. At the
same time, a prehearing conference with the presiding Member of the
traveling Section must be requested. At the conference, the written
consent of the appellant for the use of the services of such an
individual required by paragraph (b) must be presented and agreement
reached as to the individual's role in the hearing. Legal interns, law
students or paralegals may not present oral arguments at hearings either
in the field or in Washington, DC, unless the recognized attorney-at-law
is present. Not more than two such individuals may make presentations
at a hearing. The presiding Member at a hearing on appeal may require
that not more than one such individual participate in the examination of
any one witness or impose other reasonable limitations to ensure orderly
conduct of the hearing.
(e) Withdrawal of permission for legal interns, law students, and
paralegals to assist in the presentation of an appeal. When properly
designated, the attorney-at-law is the recognized representative of the
appellant and is responsible for ensuring that an appeal is properly
presented. Legal interns, law students, and paralegals are permitted to
assist in the presentation of an appeal as a courtesy to the
attorney-at-law. Permission for a legal intern, law student, or
paralegal to prepare and present cases before the Board may be withdrawn
by the Chairman at any time if a lack of competence, unprofessional
conduct, or interference with the appellate process is demonstrated by
that individual.
(Authority: 38 U.S.C. 5904, 7105(b)(2))
38 CFR 20.607 Rule 607. Revocation of a representative's authority to
act.
Subject to the provisions of 20.1304 of this part, an appellant may
revoke a representative's authority to act on his or her behalf at any
time, irrespective of whether another representative is concurrently
designated. Written notice of the revocation must be given to the
agency of original jurisdiction or, if the appellate record has been
certified to the Board for review, to the Board of Veterans' Appeals.
The revocation is effective when notice of the revocation is received by
the agency of original jurisdiction or the Board, as applicable. An
appropriate designation of a new representative will automatically
revoke any prior designation of representation. If an appellant has
limited a designation of representation by an attorney-at-law to a
specific claim under the provisions of Rule 603, paragraph (a) (
20.603(a) of this part), or has limited a designation of representation
by an individual to a specific claim under the provisions of Rule 605,
paragraph (c) ( 20.605(c) of this part), such specific authority
constitutes a revocation of an existing representative's authority to
act only with respect to, and during the pendency of, that specific
claim. Following the final determination of that claim, the existing
representative's authority to act will be automatically restored in
full, unless otherwise revoked.
(Authority: 38 U.S.C. 5901-5904)
38 CFR 20.608 Rule 608. Withdrawal of services by a representative.
(a) Withdrawal of services prior to certification of an appeal. A
representative may withdraw services as representative in an appeal at
any time prior to certification of the appeal to the Board of Veterans'
Appeals by the agency of original jurisdiction. The representative must
give written notice of such withdrawal to the appellant and to the
agency of original jurisdiction. The withdrawal is effective when
notice of the withdrawal is received by the agency of original
jurisdiction.
(b) Withdrawal of services after certification of an appeal -- (1)
Applicability. The restrictions on a representative's right to withdraw
contained in this paragraph apply only to those cases in which the
representative has previously agreed to act as representative in an
appeal. In addition to express agreement, orally or in writing, such
agreement shall be presumed if the representative makes an appearance in
the case by acting on an appellant's behalf before the Board in any way
after the appellant has designated the representative as such as
provided in 20.602 through 20.605 of this part. The preceding
sentence notwithstanding, an appearance in an appeal solely to notify
the Board that a designation of representation has not been accepted
will not be presumed to constitute such consent.
(2) Procedures. After the agency of original jurisdiction has
certified an appeal to the Board of Veterans' Appeals, a representative
may not withdraw services as representative in the appeal unless good
cause is shown on motion. Good cause for such purposes is the extended
illness or incapacitation of an agent admitted to practice before the
Department of Veterans Affairs, an attorney-at-law, or other individual
representative; failure of the appellant to cooperate with proper
preparation and presentation of the appeal; or other factors which make
the continuation of representation impossible, impractical, or
unethical. Such motions must be in writing and must include the name of
the veteran, the name of the claimant or appellant if other than the
veteran (e.g., a veteran's survivor, a guardian, or a fiduciary
appointed to receive VA benefits on an individual's behalf), the
applicable Department of Veterans Affairs file number, and the reason
why withdrawal should be permitted. Such motions should not contain
information which would violate privileged communications or which would
otherwise be unethical to reveal. Such motions must be filed at the
following address: Office of Counsel to the Chairman (01C), Board of
Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. The
representative must mail a copy of the motion to the appellant, with a
return receipt requested. The receipt, which must bear the signature of
the appellant, must then be filed with the Board at the same address as
proof of service of the motion. The appellant may file a response to
the motion with the Board at the same address not later than 30 days
following receipt of the copy of the motion. The appellant must mail a
copy of any such response to the representative, with a return receipt
requested. The receipt, which must bear the signature of the
representative or an employee of the representative, must then be filed
with the Board at the same address as proof of service of the response.
The ruling on the motion will be made by the Chairman.
(Authority: 38 U.S.C. 5901-5904, 7105(a))
(Approved by the Office of Management and Budget under control number
2900-0085)
38 CFR 20.609 Rule 609. Payment of representative's fees in
proceedings before Department of Veterans Affairs field personnel and
before the Board of Veterans' Appeals.
(a) Applicability of rule. The provisions of this section apply to
the services of representatives with respect to benefits under laws
administered by the Department of Veterans Affairs in all proceedings
before Department of Veterans Affairs field personnel or before the
Board of Veterans' Appeals regardless of whether an appeal has been
initiated.
(b) Who may charge fees for representation. Only agents and
attorneys-at-law may receive fees from claimants or appellants for their
services. Recognized organizations (including their accredited
representatives when acting as such) and individuals recognized pursuant
to Rule 605 ( 20.605 of this part) are not permitted to receive fees.
An attorney-at-law or agent who may also be an accredited representative
of a recognized organization may not receive such fees unless he or she
has been properly designated as representative in accordance with Rule
603(a) or Rule 604(a) ( 20.603(a) or 20.604(a) of this part) in his or
her individual capacity.
(c) Circumstances under which fees may be charged. Except as noted
in paragraph (d) of this section, attorneys-at-law and agents may charge
claimants or appellants for their services only if all of the following
conditions have been met:
(1) A final decision has been promulgated by the Board of Veterans'
Appeals with respect to the issue, or issues, involved;
(2) The Notice of Disagreement which preceded the Board of Veterans'
Appeals decision with respect to the issue, or issues, involved was
received by the agency of original jurisdiction on or after November 18,
1988; and
(3) The attorney-at-law or agent was retained not later than one year
following the date that the decision by the Board of Veterans' Appeals
with respect to the issue, or issues, involved was promulgated. (This
condition will be considered to have been met with respect to all
successor attorneys-at-law or agents acting in the continuous
prosecution of the same matter if a predecessor was retained within the
required time period.)
(d) Payment of fee by disinterested third party. An attorney-at-law
or agent may receive a fee or salary from an organization, governmental
entity, or other disinterested third party for representation of a
claimant or appellant even though the conditions set forth in paragraph
(c) of this section have not been met.
(e) Fees permitted. Fees permitted under paragraph (c) for services
of an attorney-at-law or agent admitted to practice before the
Department of Veterans Affairs must be reasonable. They may be based on
a fixed fee, hourly rate, a percentage of benefits recovered, or a
combination of such bases. Factors considered in determining whether
fees are reasonable include:
(1) The extent and type of services the representative performed;
(2) The complexity of the case;
(3) The level of skill and competence required of the representative
in giving the services;
(4) The amount of time the representative spent on the case;
(5) The results the representative achieved, including the amount of
any benefits recovered;
(6) The level of review to which the claim was taken and the level of
the review at which the representative was retained;
(7) Rates charged by other representatives for similar services; and
(8) Whether, and to what extent, the payment of fees is contingent
upon the results achieved.
(f) Presumption of reasonableness. Fees which total no more than 20
percent of any past-due benefits awarded, as defined in paragraph (h)(3)
of this section, will be presumed to be reasonable.
(g) Fee agreements. All agreements for the payment of fees for
services of attorneys-at-law and agents must be in writing and signed by
both the claimant or appellant and the attorney-at-law or agent. The
agreement must include the name of the veteran, the name of the claimant
or appellant if other than the veteran (e.g., a veteran's survivor, a
guardian, or a fiduciary appointed to receive VA benefits on an
individual's behalf), the applicable Department of Veterans Affairs file
number, and the specific terms under which the amount to be paid for the
services of the attorney-at-law or agent will be determined. A copy of
the agreement must be filed with the Board of Veterans' Appeals within
30 days of its execution by mailing the copy to the following address:
Office of Counsel to the Chairman (01C), Board of Veterans' Appeals, 810
Vermont Avenue NW., Washington, DC 20420. (Also see paragraph (h)(4)
for information concerning additional filing requirements when fees are
to be paid by the Department of Veterans Affairs from past-due
benefits.)
(h) Payment of fees by Department of Veterans Affairs directly to an
attorney-at-law from past-due benefits. (1) Subject to the requirements
of the other paragraphs of this section, including paragraphs (c) and
(e), the claimant or appellant and an attorney-at-law may enter into a
fee agreement providing that payment for the services of the
attorney-at-law will be made directly to the attorney-at-law by the
Department of Veterans Affairs out of any past-due benefits awarded as a
result of a successful appeal to the Board of Veterans' Appeals or an
appellate court or as a result of a reopened claim before the Department
following a prior denial of such benefits by the Board of Veterans'
Appeals or an appellate court. Such an agreement will be honored by the
Department only if the following conditions are met:
(i) The total fee payable (excluding expenses) does not exceed 20
percent of the total amount of the past-due benefits awarded,
(ii) The amount of the fee is contingent on whether or not the claim
is resolved in a manner favorable to the claimant or appellant, and
(iii) The award of past-due benefits results in a cash payment to a
claimant or an appellant from which the fee may be deducted. (An award
of past-due benefits will not always result in a cash payment to a
claimant or an appellant. For example, no cash payment will be made to
military retirees unless there is a corresponding waiver of retirement
pay. (See 38 U.S.C. 5304(a) and 3.750 et seq. of this chapter.))
(2) For purposes of this paragraph, a claim will be considered to
have been resolved in a manner favorable to the claimant or appellant if
all or any part of the relief sought is granted.
(3) For purposes of this paragraph, ''past-due benefits'' means a
nonrecurring payment resulting from a benefit, or benefits, granted on
appeal or awarded on the basis of a claim reopened after a denial by the
Board of Veterans' Appeals or the lump sum payment which represents the
total amount of recurring cash payments which accrued between the
effective date of the award, as determined by applicable laws and
regulations, and the date of the grant of the benefit by the agency of
original jurisdiction, the Board of Veterans' Appeals, or an appellate
court.
(i) When the benefit granted on appeal, or as the result of the
reopened claim, is service connection for a disability, the ''past-due
benefits'' will be based on the initial disability rating assigned by
the agency of original jurisdiction following the award of service
connection. The sum will equal the payments accruing from the effective
date of the award to the date of the initial disability rating decision.
If an increased evaluation is subsequently granted as the result of an
appeal of the disability evaluation initially assigned by the agency of
original jurisdiction, and if the attorney-at-law represents the
claimant or appellant in that phase of the claim, the attorney-at-law
will be paid a supplemental payment based upon the increase granted on
appeal, to the extent that the increased amount of disability is found
to have existed between the initial effective date of the award
following the grant of service connection and the date of the rating
action implementing the appellate decision granting the increase.
(ii) Unless otherwise provided in the fee agreement between the
claimant or appellant and the attorney-at-law, the attorney-at-law's
fees will be determined on the basis of the total amount of the past-due
benefits even though a portion of those benefits may have been
apportioned to the claimant's or appellant's dependents.
(iii) If an award is made as the result of favorable action with
respect to several issues, the past-due benefits will be calculated only
on the basis of that portion of the award which results from action
taken on issues concerning which the criteria in paragraph (c) of this
section have been met.
(4) In addition to filing a copy of the fee agreement with the Board
of Veterans' Appeals as required by paragraph (g) of this section, the
attorney-at-law must notify the agency of original jurisdiction within
30 days of the date of execution of the agreement of the existence of an
agreement providing for the direct payment of fees out of any benefits
subsequently determined to be past due and provide that agency with a
copy of the fee agreement.
(i) Motion for review of fee agreement. The Board of Veterans'
Appeals may review a fee agreement between a claimant or appellant and
an attorney-at-law or agent upon its own motion or upon the motion of
any party to the agreement and may order a reduction in the fee called
for in the agreement if it finds that the fee is excessive or
unreasonable in light of the standards set forth in paragraph (e) of
this section. Such motions must be in writing and must include the name
of the veteran, the name of the claimant or appellant if other than the
veteran (e.g., a veteran's survivor, a guardian, or a fiduciary
appointed to receive VA benefits on an individual's behalf), and the
applicable Department of Veterans Affairs file number. Such motions
must set forth the reason, or reasons, why the fee called for in the
agreement is excessive or unreasonable. Such motions (other than
motions by the Board) must be filed at the following address: Office of
Counsel to the Chairman (01C), Board of Veterans' Appeals, 810 Vermont
Avenue, NW., Washington, DC 20420. They should be accompanied by all
such evidence as the moving party desires to submit. The moving party
must mail a copy of the motion and accompanying evidence to all other
parties to the agreement, with return receipts requested. The receipts,
which must bear the signatures of the other parties, must then be filed
with the Board at the same address as proof of service of the motion.
The other parties may file a response to the motion, with any
accompanying evidence, with the Board at the same address not later than
30 days following the date of receipt of the copy of the motion. A copy
of any such response and any accompanying evidence must be mailed to the
moving party, with a return receipt requested. The receipt, which must
bear the signature of the moving party, must then be filed with the
Board at the same address as proof of service of the response. Once
there has been a ruling on the motion, an order shall issue which will
constitute the final decision of the Board with respect to the motion.
If a reduction in the fee is ordered, the attorney or agent must credit
the account of the claimant or appellant with the amount of the
reduction and refund any excess payment on account to the claimant or
appellant not later than the expiration of the time within which the
ruling may be appealed to the Court of Veterans Appeals. Failure to do
so may result in proceedings under 14.633 of this chapter to terminate
the attorney's or agent's right to practice before the Department of
Veterans Affairs and the Board of Veterans' Appeals and/or prosecution
under the provisions of 38 U.S.C. 5905.
(Authority: 38 U.S.C. 5902, 5904, 5905)
(Approved by the Office of Management and Budget under control number
2900-0085)
(57 FR 4109, Feb. 3, 1992, as amended at 57 FR 38443, Aug. 25, 1992)
38 CFR 20.610 Rule 610. Payment of representative's expenses in
proceedings before Department of Veterans Affairs field personnel and
before the Board of Veterans' Appeals.
(a) Applicability of rule. The provisions of this section apply to
the services of representatives with respect to benefits under laws
administered by the Department of Veterans Affairs in all proceedings
before Department of Veterans Affairs field personnel or before the
Board of Veterans' Appeals regardless of whether an appeal has been
initiated.
(b) General. Any representative may be reimbursed for expenses
incurred on behalf of a veteran or a veteran's dependents or survivors
in the prosecution of a claim for benefits pending before the Department
of Veterans Affairs. Whether such a representative will be reimbursed
for expenses and the method of such reimbursement is a matter to be
determined by the representative and the claimant or appellant.
Expenses are not payable directly to the representative by the
Department of Veterans Affairs out of benefits determined to be due to a
claimant or appellant. Unless required in conjunction with a motion for
the review of expenses filed in accordance with paragraph (d) of this
section, agreements for the reimbursement of expenses need not be filed
with the Department of Veterans Affairs or the Board of Veterans'
Appeals.
(c) Nature of expenses subject to reimbursement. ''Expenses''
include nonrecurring expenses incurred directly in the prosecution of a
claim for benefits upon behalf of a claimant or appellant. Examples of
such expenses include expenses for travel specifically to attend a
hearing with respect to a particular claim, the cost of copies of
medical records or other documents obtained from an outside source, the
cost of obtaining the services of an expert witness or an expert
opinion, etc. ''Expenses'' do not include normal overhead costs of the
representative such as office rent, utilities, the cost of obtaining or
operating office equipment or a legal library, salaries of the
representative and his or her support staff, the cost of office
supplies, etc.
(d) Expense charges permitted -- motion for review of expenses.
Reimbursement for the expenses of a representative may be obtained only
if the expenses are reasonable. The Board of Veterans' Appeals may
review expenses charged by a representative upon the motion of the
claimant or appellant and may order a reduction in the expenses charged
if it finds that they are excessive or unreasonable. Such motions must
be in writing. They must include the name of the veteran, the name of
the claimant or appellant if other than the veteran (e.g., a veteran's
survivor, a guardian, or a fiduciary appointed to receive VA benefits on
an individual's behalf), and the applicable Department of Veterans
Affairs file number. They must specifically identify which expenses
charged are felt to be unreasonable and the reason, or reasons, why the
amount of the expenses is felt to be excessive or unreasonable. Such
motions must be filed at the following address: Office of Counsel to
the Chairman (01C), Board of Veterans' Appeals, 810 Vermont Avenue NW.,
Washington, DC 20420. They should be accompanied by all such evidence
as the moving party desires to submit. The appellant or claimant, as
applicable, must mail a copy of the motion and any accompanying evidence
to the representative, with a return receipt requested. The receipt,
which must bear the signature of the representative or an employee of
the representative, must then be filed with the Board at the same
address as proof of service of the motion. The representative may file
a response to the motion, with any accompanying evidence, with the Board
at the same address not later than 30 days following the date of receipt
of the copy of the motion. The representative must mail a copy of any
such response and any accompanying evidence to the appellant, with a
return receipt requested. The receipt, which must bear the signature of
the appellant, must then be filed with the Board at the same address as
proof of service of the response. Factors considered in determining
whether expenses are excessive or unreasonable include the complexity of
the case, the potential extent of benefits recoverable, whether travel
expenses are in keeping with expenses normally incurred by other
representatives, etc. Once there has been a ruling on the motion, an
order shall issue which will constitute the final decision of the Board
with respect to the motion.
(Authority: 38 U.S.C. 5904)
(Approved by the Office of Management and Budget under control number
2900-0085)
(57 FR 4109, Feb. 3, 1992, as amended at 57 FR 38443, Aug. 25, 1992)
38 CFR 20.611 Rule 611. Continuation of representation following death
of a claimant or appellant.
A recognized organization, attorney, agent, or person properly
designated to represent a claimant or appellant will be recognized as
the representative of his or her survivors for a period of one year
following the death of the claimant or appellant. A representative may
also continue to act with respect to any appeal pending upon the death
of the claimant or appellant until such time as a final decision has
been promulgated by the Board of Veterans' Appeals. The provisions of
this section do not apply to any survivor who has appointed another
representative in accordance with these rules or who has indicated in
writing that he or she does not wish to be represented by the claimant's
or appellant's representative. Written notice that a survivor does not
wish to be represented by the claimant's or appellant's representative
will be effective when received by the agency of original jurisdiction
or, if the case has been certified to the Board for appellate review, by
the Board of Veterans' Appeals.
(Authority: 38 U.S.C. 5902-5904)
20.612 -- 20.699 (Reserved)
38 CFR 20.611 Subpart H -- Hearings before the Board on Appeal
38 CFR 20.700 Rule 700. General.
(a) Right to a hearing. A hearing on appeal will be granted if an
appellant, or an appellant's representative acting on his or her behalf,
expresses a desire to appear in person.
(b) Purpose of hearing. The purpose of a hearing is to receive
argument and testimony relevant and material to the appellate issue. It
is contemplated that the appellant and witnesses, if any, will be
present. A personal hearing will not normally be scheduled solely for
the purpose of receiving argument by a representative. Such argument
should be submitted in the form of a written brief. Oral argument may
also be submitted on audio cassette for transcription for the record in
accordance with paragraph (d) of this section. Requests for appearances
by representatives alone to personally present argument to Members of
the Board may be granted if good cause is shown. Whether good cause has
been shown will be determined by the presiding Member of the hearing
panel involved.
(c) Nonadversarial proceedings. Hearings conducted by the Board are
ex parte in nature and nonadversarial. Parties to the hearing will be
permitted to ask questions, including follow-up questions, of all
witnesses but cross-examination will not be permitted. Proceedings will
not be limited by legal rules of evidence, but reasonable bounds of
relevancy and materiality will be maintained. The presiding Member may
set reasonable time limits for the presentation of argument and may
exclude documentary evidence, testimony, and/or argument which is not
relevant or material to the issue, or issues, being considered or which
is unduly repetitious.
(d) Informal hearings. This term is used to describe situations in
which the appellant cannot, or does not wish to, appear. In the absence
of the appellant, the authorized representative may present oral
arguments, not exceeding 30 minutes in length, to the Board on an audio
cassette without personally appearing before a Board of Veterans'
Appeals hearing panel. These arguments will be transcribed by Board
personnel for subsequent review by the panel members. This procedure
will not be construed to satisfy an appellant's request to appear in
person.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))
(57 FR 4109, Feb. 3, 1992, as amended at 58 FR 27935, May 12, 1993)
38 CFR 20.701 Rule 701. Who may present oral argument.
Only the appellant and/or his or her authorized representative may
appear and present argument in support of an appeal. At the request of
an appellant, a Veterans Benefits Counselor of the Department of
Veterans Affairs may present the appeal at a hearing before the Board of
Veterans' Appeals.
(Authority: 38 U.S.C. 7102, 7104(a), 7105)
(58 FR 27935, May 12, 1993)
38 CFR 20.702 Rule 702. Scheduling and notice of hearings conducted by
the Board of Veterans' Appeals in Washington, DC.
(a) General. To the extent that officials scheduling hearings for
the Board of Veterans' Appeals determine that necessary physical
resources and qualified personnel are available, hearings will be
scheduled at the convenience of appellants and their representatives,
with consideration of the travel distance involved. While a Statement
of the Case should be prepared prior to the hearing, it is not a
prerequisite for a hearing and an appellant may request that the hearing
be scheduled prior to issuance of the Statement of the Case.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a)
(b) Notification of hearing. When a hearing is scheduled, the person
requesting it will be notified of its time and place, and of the fact
that the Government may not assume any expense incurred by the
appellant, the representative or witnesses attending the hearing.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))
(c) Requests for changes in hearing dates. (1) The appellant or the
representative may request a different date for the hearing within 60
days from the date of the letter of notification of the time and place
of the hearing, or not later than two weeks prior to the scheduled
hearing date, whichever is earlier. The request must be in writing, but
the grounds for the request need not be stated. Only one such request
for a change of the date of the hearing will be granted, subject to the
interests of other parties if a simultaneously contested claim is
involved. In the case of hearings to be conducted by the Board of
Veterans' Appeals in Washington, DC, such requests for a new hearing
date must be filed with: Chief, Hearing Section (0141F), Board of
Veterans' Appeals, 810 Vermont Avenue NW., Washington, DC 20420.
(2) After the period described in paragraph (c)(1) of this section
has passed, or after one change in the hearing date is granted based on
a request received during such period, the date of the hearing will
become fixed. After a hearing date has become fixed, an extension of
time for appearance at a hearing will be granted only for good cause,
with due consideration of the interests of other parties if a
simultaneously contested claim is involved. Examples of good cause
include, but are not limited to, illness of the appellant and/or
representative, difficulty in obtaining necessary records, and
unavailability of a necessary witness. The motion for a new hearing
date must be in writing and must explain why a new hearing date is
necessary. If good cause is shown, the hearing will be rescheduled for
the next available hearing date after the appellant or his or her
representative gives notice that the contingency which gave rise to the
request for postponement has been removed. Ordinarily, however,
hearings will not be postponed more than 30 days. In the case of a
hearing conducted by the Board of Veterans' Appeals in Washington, DC,
whether good cause for establishing a new hearing date has been shown
will be determined by the presiding Member of the hearing panel assigned
to conduct the hearing. In the case of hearings to be conducted by the
Board of Veterans' Appeals in Washington, DC, the motion for a new
hearing date must be filed with: Chief, Hearing Section (0141F), Board
of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a), 7105A)
(d) Failure to appear for a scheduled hearing. If an appellant (or
when a hearing only for oral argument by a representative has been
authorized, the representative) fails to appear for a scheduled hearing
and a request for postponement has not been received and granted, the
case will be processed as though the request for a hearing had been
withdrawn. No further request for a hearing will be granted in the same
appeal unless such failure to appear was with good cause and the cause
for the failure to appear arose under such circumstances that a timely
request for postponement could not have been submitted prior to the
scheduled hearing date. A motion for a new hearing date following a
failure to appear must be in writing; must be submitted not more than
15 days following the original hearing date; and must set forth the
reason, or reasons, for the failure to appear at the originally
scheduled hearing and the reason, or reasons, why a timely request for
postponement could not have been submitted. In the case of hearings to
be conducted by the Board of Veterans' Appeals in Washington, DC, the
motion must be filed with: Chief, Hearing Section (0141F), Board of
Veterans' Appeals, 810 Vermont Avenue, NW, Washington, DC 20420. If
good cause is shown, the hearing will be rescheduled for the next
available hearing date after the appellant or his or her representative
gives notice that the contingency which gave rise to the failure to
appear has been removed. Ordinarily, however, hearings will not be
postponed more than 30 days. In the case of hearings before the Board
of Veterans' Appeals in Washington, DC, whether good cause for such
failure to appear has been established will be determined by the
presiding Member of the hearing panel to which the case was assigned.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a), 7105A)
(e) Withdrawal of hearing requests. A request for a hearing may be
withdrawn by an appellant at any time before the date of the hearing. A
request for a hearing may not be withdrawn by an appellant's
representative without the consent of the appellant. In the case of
hearings to be conducted by the Board of Veterans' Appeals in
Washington, DC, the notice of withdrawal must be sent to: Chief,
Hearing Section (0141F), Board of Veterans' Appeals, 810 Vermont Avenue,
NW., Washington, DC 20420.
(Authority: 38 U.S.C. 7102, 7104(a) 7105(a))
(Approved by the Office of Management and Budget under control number
2900-0085.)
(57 FR 4109, Feb. 3, 1992, as amended at 58 FR 27935, May 12, 1993)
38 CFR 20.703 Rule 703. When right to Travel Board hearing arises.
A Travel Board hearing is a ''hearing on appeal''. Accordingly,
there is no right to a hearing before a traveling Section of the Board
until such time as a Notice of Disagreement has been filed. Any request
for such a hearing filed with a Notice of Disagreement, or filed
subsequent to the filing of a Notice of Disagreement, will be accepted
by the agency of original jurisdiction. Requests for such hearings
before a Notice of Disagreement has been filed, or after the Board has
entered a final decision in the case on the issue (or issues) appealed
will be rejected, except for requests for such hearings after a Notice
of Disagreement has been filed appealing a denial of benefits in a
reopened claim which followed a prior Board decision or after a motion
for reconsideration of a prior Board decision has been granted.
(Authority: 38 U.S.C. 7105(a), 7110)
38 CFR 20.704 Rule 704. Scheduling and notice of hearings conducted by
traveling Sections of the Board of Veterans' Appeals at Department of
Veterans Affairs field facilities.
(a) General. Travel Board hearings are conducted by traveling
Sections of the Board of Veterans' Appeals during prescheduled visits to
Department of Veterans Affairs facilities having adequate physical
resources and personnel for the support of such hearings. The hearings
will be scheduled during such visits in the order in which requests for
such hearings were received by the agency of original jurisdiction.
Requests for Travel Board hearings must be submitted to the agency of
original jurisdiction, in writing, and should not be submitted directly
to the Board of Veterans' Appeals.
(b) Notification of hearing. When a hearing is scheduled, the person
requesting it will be notified of its time and place, and of the fact
that the Government may not assume any expense incurred by the
appellant, the representative or witnesses attending the hearing.
(c) Requests for changes in hearing dates. Requests for a change in
a Travel Board hearing date may be made at any time up to two weeks
prior to the scheduled date of the hearing if good cause is shown. Such
requests must be in writing, must explain why a new hearing date is
necessary, and must be filed with the office of the official of the
Department of Veterans Affairs who signed the notice of the original
hearing date. Examples of good cause include, but are not limited to,
illness of the appellant and/or representative, difficulty in obtaining
necessary records, and unavailability of a necessary witness. If good
cause is shown, the Travel Board hearing will be rescheduled for the
next available Travel Board hearing date after the appellant or his or
her representative gives notice that the contingency which gave rise to
the request for postponement has been removed. If good cause is not
shown, the appellant and his or her representative will be promptly
notified and given an opportunity to appear at the hearing as previously
scheduled. If the appellant elects not to appear at the prescheduled
date, the request for a Travel Board hearing will be considered to have
been withdrawn. In such cases, however, the record will be submitted to
the presiding Member of the traveling Section for review when the
traveling Section of the Board arrives at the agency of original
jurisdiction to conduct Travel Board hearings. If the presiding Member
does not concur with the determination that good cause has not been
shown, the Travel Board hearing will be rescheduled for the next
available Travel Board hearing date after the contingency which gave
rise to the request for postponement has been removed.
(d) Failure to appear for a scheduled hearing. If an appellant (or
when a hearing only for oral argument by a representative has been
authorized, the representative) fails to appear for a scheduled Travel
Board hearing and a request for postponement has not been received and
granted, the case will be processed as though the request for a hearing
had been withdrawn. No further request for a hearing will be granted in
the same appeal unless such failure to appear was with good cause and
the cause for the failure to appear arose under such circumstances that
a timely request for postponement could not have been submitted prior to
the scheduled hearing date. A motion for a new hearing date following a
failure to appear for a scheduled Travel Board hearing must be in
writing, must be filed within 15 days of the originally scheduled
hearing date, and must explain why the appellant failed to appear for
the hearing and why a timely request for a new hearing date could not
have been submitted. Such motions must be filed with: Travel Board
Secretary (0141F1), Board of Veterans' Appeals, 810 Vermont Avenue, NW.,
Washington, DC 20420. If good cause is shown, the hearing will be
rescheduled for the next available hearing date after the contingency
which gave rise to the failure to appear has been removed. Whether good
cause for such failure to appear has been established will be determined
by the presiding Member of the traveling Section of the Board. If good
cause is shown, the Travel Board hearing will be rescheduled for the
next available Travel Board hearing date after the appellant or his or
her representative gives notice that the contingency which gave rise to
the failure to appear has been removed.
(e) Withdrawal of Travel Board hearing requests. A request for a
Travel Board hearing may be withdrawn by an appellant at any time before
the date of the hearing. A request for a Travel Board hearing may not
be withdrawn by an appellant's representative without the consent of the
appellant. Notices of withdrawal must be forwarded to the office of the
Department of Veterans Affairs official who signed the notice of the
hearing date.
(Authority: 38 U.S.C. 7104(a), 7110)
(Approved by the Office of Management and Budget under control number
2900-0085)
38 CFR 20.705 Rule 705. Where hearings are conducted.
A hearing on appeal before the Board of Veterans' Appeals may be held
in one of the following places at the option of the appellant:
(a) In Washington, DC, or
(b) Before a traveling Section of the Board of Veterans' Appeals at
Department of Veterans Affairs facilities having adequate physical
resources and personnel for the support of such hearings.
Authority: 38 U.S.C. 7102, 7104(a), 7105(a), 7110)
(58 FR 27936, May 12, 1993)
38 CFR 20.706 Rule 706. Functions of the presiding Member.
The presiding Member of a hearing panel is responsible for the
conduct of the hearing, administration of the oath or affirmation, and
for ruling on questions of procedure. The presiding Member will assure
that the course of the hearing remains relevant to the issue, or issues,
on appeal and that there is no cross-examination of the parties or
witnesses. The presiding Member will take such steps as may be
necessary to maintain good order at hearings and may terminate a hearing
or direct that the offending party leave the hearing if an appellant,
representative, or witness persists in disruptive behavior.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))
38 CFR 20.707 Rule 707. When a hearing panel makes the final appellate
decision.
(a) Hearings in Washington, DC. Hearings held before a Section of
the Board of Veterans' Appeals in Washington, DC, are normally held
before Members who will make the final decision on the appeal.
(b) Hearings held before traveling Sections of the Board. Hearings
held before traveling Board Sections are normally held before Members
who will make the final decision on the appeal unless an issue on appeal
involves radiation, Agent Orange, or asbestos exposure; the case
involves the reconsideration of a prior Board of Veterans' Appeals
decision; or the hearing panel consists of fewer than three Members of
the Board. Appeals involving radiation, Agent Orange, or asbestos
exposure issues will be decided by Board Members specializing in those
issues. Decisions in appeals involving reconsideration of a prior Board
of Veterans' Appeals decision on the same issue, or issues, may involve
Board Members in addition to those Members making up the traveling
Section. An expanded reconsideration Section considering issues
involving post-traumatic stress disorder or radiation, Agent Orange, or
asbestos exposure will include both the traveling Section and Board
Members specializing in those issues. If a Travel Board Section is
comprised of fewer than three Board Members, the Chairman may assign an
additional Member, or Members, to constitute a three-Member Section
which will make the final decision in Washington, DC.
(Authority: 38 U.S.C. 7102, 7104(a), 7110)
38 CFR 20.708 Rule 708. Prehearing conference.
An appellant's authorized representative may request a prehearing
conference with the presiding Member of a hearing panel in order to
clarify the issues to be considered at a hearing on appeal, obtain
rulings on the admissibility of evidence, develop stipulations of fact,
establish the length of argument which will be permitted, or take other
steps which will make the hearing itself more efficient and productive.
With respect to hearings to be held before Members of the Board at
Washington, DC, arrangements for a prehearing conference must be made
through: Chief, Hearing Section (0141F), Board of Veterans' Appeals,
810 Vermont Avenue, NW., Washington, DC 20420. Requests for prehearing
conferences in cases involving hearings to be held before traveling
Sections of the Board must be addressed to the office of the Department
of Veterans Affairs official who signed the letter giving notice of the
time and place of the hearing.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))
(58 FR 27936, May 12, 1993)
38 CFR 20.709 Rule 709. Procurement of additional evidence following a
hearing.
If it appears during the course of a hearing that additional evidence
would assist in the review of the questions at issue, the presiding
Member may direct that the record be left open so that the appellant and
his or her representative may obtain the desired evidence. The
presiding Member will determine the period of time during which the
record will stay open, considering the amount of time estimated by the
appellant or representative as needed to obtain the evidence and other
factors adduced during the hearing. Ordinarily, the period will not
exceed 60 days, and will be as short as possible in order that appellate
consideration of the case not be unnecessarily delayed.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))
38 CFR 20.710 Rule 710. Witnesses at hearings.
(a) General. The testimony of witnesses, including appellants, will
be heard. Testimony may include presentations by Members of the
Congress or Congressional staff members appearing on an appellant's
behalf.
(b) Testimony under oath. All testimony must be given under oath
unless excused because of religious principles or other good cause. If
the witness declines to take an oath, he or she must be informed that
testimony will be permitted on affirmation. The witness must then be
requested to make a solemn declaration as to the truth of the testimony
about to be given. The witness may use such words as he or she
considers binding on his or her conscience. Administration of the oath
for the sole purpose of presenting contentions and argument is not
required.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))
38 CFR 20.711 Rule 711. Subpoenas.
(a) General. An appellant, or his or her representative, may arrange
for the production of any tangible evidence or the voluntary appearance
of any witnesses desired. When necessary evidence cannot be obtained in
any other reasonable way, the appellant, or his or her representative,
may move that a subpoena be issued to compel the attendance of witnesses
residing within 100 miles of the place where a hearing on appeal is to
be held and/or to compel the production of tangible evidence. A
subpoena will not be issued to compel the attendance of Department of
Veterans Affairs adjudicatory personnel.
(b) Contents of motion for subpoena. The motion for a subpoena must
be in writing, must clearly show the name and address of each witness to
be subpoenaed, must clearly identify all documentary or other tangible
evidence to be produced, and must explain why the attendance of the
witness and/or the production of the tangible evidence cannot be
obtained without a subpoena.
(c) Where motion for subpoena is to be filed. In cases in which the
appellate record has been transferred to the Board of Veterans' Appeals
in Washington, DC, motions for a subpoena must be filed with the Office
of Counsel to the Chairman (01C), Board of Veterans' Appeals, 810
Vermont Avenue, NW., Washington, DC 20420. In those cases where the
appellate record has not been transferred to the Board, such motions
must be filed with the Director of the Department of Veterans Affairs
facility where the appellate record is located.
(d) When motion for subpoena is to be filed in cases involving a
hearing on appeal. Motions for the issuance of a subpoena for the
attendance of a witness, or the production of documents or other
tangible evidence, at a hearing on appeal must be filed not later than
30 days prior to the hearing date.
(e) Ruling on motion for subpoena. In cases in which the appellate
record has been transferred to the Board of Veterans' Appeals in
Washington, DC, the ruling on the motion will be made by the Chairman.
In those cases where the appellate record has not been transferred to
the Board, the ruling on the motion will be made by the Director of the
Department of Veterans Affairs facility where the appellate record is
located. In cases where the production of documents or other tangible
evidence is sought, the granting of the motion may be conditioned upon
the advancement by the appellant of the reasonable cost of producing the
books, papers, documents, or other tangible evidence requested. The
question of whether denial of a motion for a subpoena by a Director of a
Department of Veterans Affairs facility was proper may be appealed as a
part of the overall appeal, but is not subject to a separate
interlocutory appeal.
(f) Fees. Any person who is required to attend a hearing as a
witness shall be allowed and paid the same fees and mileage as are paid
witnesses in the district courts of the United States. A subpoena will
not be served unless that party on whose behalf the subpoena is issued
delivers a check in an amount equal to the fee for one day's attendance
and the mileage allowed by law, made payable to the witness, to the
official issuing the subpoena. Except for checks on the business
accounts of attorneys-at-law, agents, and recognized service
organizations, such checks must be in the form of certified checks or
cashiers checks.
(g) Service of subpoenas. The official issuing the subpoena will
serve the subpoena by certified mail, return receipt requested. The
check for fees and mileage described in paragraph (f) of this section
shall be mailed with the subpoena. The receipt, which must bear the
signature of the witness or of the custodian of the tangible evidence,
and a copy of the subpoena will be filed in the claims folder, loan
guaranty folder, or other applicable Department of Veterans Affairs
records folder.
(h) Motion to quash or modify subpoena. If an individual served with
a subpoena considers the subpoena to be unreasonable or oppressive, he
or she may move that the subpoena be quashed or modified. Such motions
must be in writing and must explain why the subpoena is unreasonable or
oppressive and what relief is sought. Such motions must be filed with
the office of the official who issued the subpoena not more than 10 days
following receipt of the subpoena. Rulings on such motions will be made
by the official who issued the subpoena, who will inform all interested
parties of the ruling in writing. The quashing of any subpoena shall be
conditional upon the return of the check for fees and mileage to the
party on whose behalf the subpoena was issued. The question of whether
the ruling by a Director of a Department of Veterans Affairs facility on
a motion to quash or modify a subpoena was proper may be appealed as a
part of the overall appeal, but is not subject to a separate
interlocutory appeal.
(Authority: 38 U.S.C. 5711, 7102(c), 7104(a))
38 CFR 20.712 Rule 712. Expenses of appellants, representatives, and
witnesses incident to hearings not reimbursable by the Government.
No expenses incurred by an appellant, representative, or witness
incident to attendance at a hearing may be paid by the Government.
(Authority: 38 U.S.C. 111)
38 CFR 20.713 Rule 713. Hearings in simultaneously contested claims.
(a) General. If a hearing is scheduled for any party to a
simultaneously contested claim, the other contesting claimants and their
representatives, if any, will be notified and afforded an opportunity to
be present. The appellant will be allowed to present opening testimony
and argument. Thereafter, any other contesting party who wishes to do
so may present testimony and argument. The appellant will then be
allowed an opportunity to present testimony and argument in rebuttal.
Cross-examination will not be allowed.
(b) Requests for changes in hearing dates. Any party to a
simultaneously contested claim may request a change in a hearing date in
accordance with the provisions of Rule 702, paragraph (c) ( 20.702(c) of
this part), or Rule 704, paragraph (c) ( 20.704(c) of this part), as
applicable. In order to obtain a new hearing date under the provisions
of Rule 702, paragraph (c)(1), the consent of all other interested
parties must be obtained and submitted with the request for a new
hearing date. If such consent is not obtained, paragraph (c)(2) of that
rule will apply even though the request is submitted within 60 days from
the date of the letter of notification of the time and place of the
hearing. A copy of any motion for a new hearing date required by these
rules must be mailed to all other interested parties by certified mail,
return receipt requested. The receipts, which must bear the signatures
of the other interested parties, and a letter explaining that they
relate to the motion for a new hearing date and containing the
applicable Department of Veterans Affairs file number must be filed at
the same address where the motion was filed as proof of service of the
motion. Each interested party will be allowed a period of 10 days from
the date that the copy of the motion was received by that party to file
written argument in response to the motion.
(Authority: 38 U.S.C. 7105A)
38 CFR 20.714 Rule 714. Record of hearing.
(a) Board of Veterans' Appeals. A hearing before Members of the
Board, whether held in Washington, DC, or before a traveling Section,
will be recorded on audio tape. In those instances where a complete
written transcript is prepared, that transcript will be the official
record of the hearing and the tape recording will be retained at the
Board for a period of 12 months following the date of the hearing as a
duplicate record of the hearing. Tape recordings of hearings that have
not been transcribed will be maintained by the Board as the official
record of hearings and retained in accordance with retention standards
approved by the National Archives and Records Administration. A
transcript will be prepared and incorporated as a part of the claims
folder, loan guaranty folder, or other applicable Department of Veterans
Affairs records folder if one or more of the following conditions have
been met:
(1) The appellant or representative has shown good cause why such a
written transcript should be prepared. (The presiding Member of the
hearing panel will determine whether good cause has been shown.
Requests that recordings of hearing proceedings be transcribed may be
made orally at the time of the hearing. Requests made subsequent to the
hearing must be in writing and must explain why transcription is
necessary. They must be filed with: Chief, Hearing Section (014B),
Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC
20420.)
(2) Testimony and/or argument has been presented at the hearing
pertaining to an issue which is to be remanded to the agency of original
jurisdiction for further development or an issue which is not in
appellate status which is to be referred to the agency of original
jurisdiction for consideration.
(3) The hearing involves an issue relating to National Service Life
Insurance or United States Government Life Insurance.
(4) With respect to hearings conducted by a traveling Section of the
Board:
(i) An issue on appeal involves radiation, Agent Orange, or asbestos
exposure;
(ii) The appeal involves reconsideration of a prior Board of
Veterans' Appeals decision on the same issue; or
(5) The Board's decision on an issue addressed at the hearing has
been appealed to the United States Court of Veterans Appeals.
(b) Copy of hearing tape recording or written transcript. One copy
of the tape recording of hearing proceedings before the Board of
Veterans' Appeals, or the written transcript of such proceedings when
such a transcript has been prepared in accordance with the provisions of
paragraph (a) of this section, shall be furnished without cost to the
appellant or representative if a request is made in accordance with
1.577 of this chapter.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))
(57 FR 4109, Feb. 3, 1992, as amended at 58 FR 27936, May 12, 1993)
38 CFR 20.715 Rule 715. Recording of hearing by appellant or
representative.
An appellant or representative may record the hearing with his or her
own equipment. Filming, videotaping or televising the hearing may only
be authorized when prior written consent is obtained from all appellants
and contesting claimants, if any, and made a matter of record. In no
event will such additional equipment be used if it interferes with the
conduct of the hearing or the official recording apparatus. In all such
situations, advance arrangements must be made. In the case of hearings
held before the Board of Veterans' Appeals in Washington, DC,
arrangements must be made with the Chief of the Hearing Section (0141F),
Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC
20420. In the case of hearings held before traveling Sections of the
Board, arrangements must be made through the office of the Department of
Veterans Affairs official who signed the letter giving notification of
the time and place of the hearing.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a))
(58 FR 27936, May 12, 1993)
38 CFR 20.716 Rule 716. Correction of hearing transcripts.
The tape recording on file at the Board of Veterans' Appeals or a
transcript prepared by the Board of Veterans' Appeals is the only
official record of a hearing before the Board. Alternate transcript
versions prepared by the appellant and representative will not be
accepted. If an appellant wishes to seek correction of perceived errors
in a hearing transcript, the appellant or his or her representative
should move for the correction of the hearing transcript within 30 days
after the date that the transcript is mailed to the appellant. The
motion must be in writing and must specify the error, or errors, in the
transcript and the correct wording to be substituted. In the case of
hearings held before the Board of Veterans' Appeals, whether in
Washington, DC, or in the field, the motion must be filed with the
Chief, Hearing Section (0141F), Board of Veterans' Appeals, 810 Vermont
Avenue, NW., Washington, DC 20420. The ruling on the motion will be
made by the presiding Member of the hearing panel concerned.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a), 7110)
(58 FR 27936, May 12, 1993)
38 CFR 20.717 Rule 717. Loss of hearing tapes or transcripts -- motion
for new hearing.
(a) Motion for new hearing. In the event that a hearing has not been
recorded in whole or in part due to equipment failure or other cause, or
the official transcript of the hearing is lost or destroyed and the
recording upon which it was based is no longer available, an appellant
or his or her representative may move for a new hearing. The motion
must be in writing and must specify why prejudice would result from the
failure to provide a new hearing.
(b) Time limit for filing motion for a new hearing. The motion will
not be granted if there has been no request for a new hearing within a
period of 120 days from the date of a final Board of Veterans' Appeals
decision or, in cases appealed to the United States Court of Veterans
Appeals, if there has been no request for a new hearing within a
reasonable period of time after the appeal to that Court has been filed.
(c) Where motion for a new hearing is filed. In the case of hearings
held before the Board of Veterans' Appeals, whether in Washington, DC,
or in the field, the motion must be filed with: Chief, Hearing Section
(0141F), Board of Veterans' Appeals, 810 Vermont Avenue, NW.,
Washington, DC 20420.
(d) Ruling on motion for a new hearing. Except as noted hereinafter,
the ruling on the motion for a new hearing will be made by the presiding
Member of the hearing panel concerned. If the presiding Member of the
hearing panel is no longer available, the ruling on the motion may be
made by any other member of the hearing panel who is available. In
cases in which a final Board of Veterans' Appeals decision has already
been promulgated with respect to the appeal in question, the ruling on
the motion will be by the Chairman of the Board. Factors to be
considered in ruling on the motion include, but will not be limited to,
the extent of the loss of the record in those cases where only a portion
of a hearing tape is unintelligible or only a portion of a transcript
has been lost or destroyed, and the extent and reasonableness of any
delay in moving for a new hearing. If a new hearing is granted in a
case in which a final Board of Veterans' Appeals decision has already
been promulgated, a supplemental decision will be issued.
(Authority: 38 U.S.C. 7102, 7104(a), 7105(a), 7110)
(57 FR 4109, Feb. 3, 1992, as amended at 58 FR 27936, May 12, 1993)
20.718 -- 20.799 (Reserved)
38 CFR 20.717 Subpart I -- Evidence
38 CFR 20.800 Rule 800. Submission of additional evidence after
initiation of appeal.
Subject to the limitations set forth in Rule 1304 ( 20.1304 of this
part), an appellant may submit additional evidence, or information as to
the availability of additional evidence, after initiating an appeal.
(Authority: 38 U.S.C. 7105(d)(1))
20.801 -- 20.899 (Reserved)
38 CFR 20.800 Subpart J -- Action by the Board
38 CFR 20.900 Rule 900. Order of consideration of appeals.
(a) Docketing of appeals. Applications for review on appeal are
docketed in the order in which they are received. Cases returned to the
Board following action pursuant to a remand assume their original places
on the docket.
(b) Appeals considered in docket order. Appeals are considered in
the order in which they are entered on the docket.
(c) Advancement on the docket. A case may be advanced on the docket
if it involves an interpretation of law of general application affecting
other claims or for other good cause. Examples of such good cause
include terminal illness, extreme hardship which might be relieved in
whole or in part if the benefits sought on appeal were granted, etc.
Advancement on the docket is requested by motion. Such motions must be
in writing and must identify the law of general application affecting
other claims or other good cause involved. They must also include the
name of the veteran, the name of the appellant if other than the veteran
(e.g., a veteran's survivor, a guardian, or a fiduciary appointed to
receive VA benefits on an individual's behalf), and the applicable
Department of Veterans Affairs file number. The motion must be filed
with: Director, Administrative Service (O14), Board of Veterans'
Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. The ruling on
the motion will be by the Chairman. If a motion to advance a case on
the docket is denied, the appellant and his or her representative will
be immediately notified. If the motion to advance a case on the docket
is granted, that fact will be noted in the Board's decision when
rendered.
(Authority: 38 U.S.C. 7107)
38 CFR 20.901 Rule 901. Medical opinions and opinions of the General
Counsel.
(a) Opinion of the Chief Medical Director. The Board may obtain a
medical opinion from the Chief Medical Director of the Veterans Health
Administration of the Department of Veterans Affairs on medical
questions involved in the consideration of an appeal when, in its
judgment, such medical expertise is needed for equitable disposition of
an appeal.
(Authority: 38 U.S.C. 5107(a))
(b) Armed Forces Institute of Pathology opinions. The Board may
refer pathologic material to the Armed Forces Institute of Pathology and
request an opinion based on that material.
(Authority: 38 U.S.C. 7109(a))
(c) Opinion of the General Counsel. The Board may obtain an opinion
from the General Counsel of the Department of Veterans Affairs on legal
questions involved in the consideration of an appeal.
(Authority: 38 U.S.C. 7104(c))
(d) Independent medical expert opinions. When, in the judgment of
the Board, additional medical opinion is warranted by the medical
complexity or controversy involved in an appeal, the Board may obtain an
advisory medical opinion from one or more medical experts who are not
employees of the Department of Veterans Affairs. Opinions will be
secured, as requested by the Chairman of the Board, from recognized
medical schools, universities, clinics, or medical institutions with
which arrangements for such opinions have been made by the Secretary of
Veterans Affairs. An appropriate official of the institution will
select the individual expert, or experts, to give an opinion.
(Authority: 38 U.S.C. 7109)
(e) For purposes of this section, the term ''the Board'' includes the
Chairman, the Vice Chairman, any Deputy Vice Chairman, and any Member of
a Section of the Board before whom a case is pending.
(Authority: 38 U.S.C. 5107(a), 7104(c), 7109)
38 CFR 20.902 Rule 902. Filing of requests for the procurement of
opinions.
The appellant or representative may request that the Board obtain an
opinion under Rule 901 ( 20.901 of this part). The request must be in
writing. It will be granted upon a showing of good cause, such as the
identification of a complex or controversial medical or legal issue
involved in the appeal which warrants such an opinion.
(Authority: 38 U.S.C. 5107(a), 7102(c), 7104(c), 7109)
38 CFR 20.903 Rule 903. Notification of opinions secured by the Board
and opportunity for response.
When an opinion is requested by the Board pursuant to Rule 901 (
20.901 of this part), the Board will notify the appellant and his or her
representative, if any. When the opinion is received by the Board, a
copy of the opinion will be furnished to the appellant's representative
or, subject to the limitations provided in 38 U.S.C. 5701(b)(1), to the
appellant if there is no representative. A period of 60 days from the
date of mailing of a copy of the opinion will be allowed for response.
The date of mailing will be presumed to be the same as the date of the
letter or memorandum which accompanies the copy of the opinion for
purposes of determining whether a response was timely filed.
(Authority: 38 U.S.C. 7109(c))
38 CFR 20.904 Rule 904. Vacating a decision.
An appellate decision may be vacated by the Board of Veterans'
Appeals at any time upon request of the appellant or his or her
representative, or on the Board's own motion, on the following grounds:
(a) Denial of due process. Examples of circumstances in which denial
of due process of law will be conceded are:
(1) When the appellant was denied his or her right to representation
through action or inaction by Department of Veterans Affairs or Board of
Veterans' Appeals personnel,
(2) When a Statement of the Case or required Supplemental Statement
of the Case was not provided, and
(3) When there was a prejudicial failure to afford the appellant a
personal hearing. (Where there was a failure to honor a request for a
hearing and a hearing is subsequently scheduled, but the appellant fails
to appear, the decision will not be vacated.)
(b) Allowance of benefits based on false or fraudulent evidence.
Where it is determined on reconsideration that an allowance of benefits
by the Board has been materially influenced by false or fraudulent
evidence submitted by or on behalf of the appellant, the prior decision
will be vacated only with respect to the issue or issues to which,
within the judgment of the Board, the false or fraudulent evidence was
material.
(Authority: 38 U.S.C. 7104(a))
20.905-20.999 (Reserved)
38 CFR 20.904 Subpart K -- Reconsideration
38 CFR 20.1000 Rule 1000. When reconsideration is accorded.
Reconsideration of an appellate decision may be accorded at any time
by the Board of Veterans' Appeals on motion by the appellant or his or
her representative or on the Board's own motion:
(a) Upon allegation of obvious error of fact or law;
(b) Upon discovery of new and material evidence in the form of
relevant records or reports of the service department concerned; or
(c) Upon allegation that an allowance of benefits by the Board has
been materially influenced by false or fraudulent evidence submitted by
or on behalf of the appellant.
(Authority: 38 U.S.C. 7103, 7104)
38 CFR 20.1001 Rule 1001. Filing and disposition of motion for
reconsideration.
(a) Application requirements. A motion for Reconsideration must be
in writing and must include the name of the veteran; the name of the
claimant or appellant if other than the veteran (e.g., a veteran's
survivor, a guardian, or a fiduciary appointed to receive VA benefits on
an individual's behalf); the applicable Department of Veterans Affairs
file number; and the date of the Board of Veterans' Appeals decision,
or decisions, to be reconsidered. It must also set forth clearly and
specifically the alleged obvious error, or errors, of fact or law in the
applicable decision, or decisions, of the Board or other appropriate
basis for requesting Reconsideration. If the applicable Board of
Veterans' Appeals decision, or decisions, involved more than one issue
on appeal, the motion for reconsideration must identify the specific
issue, or issues, to which the motion pertains. Issues not so
identified will not be considered in the disposition of the motion.
(b) Filing of motion for reconsideration. A motion for
reconsideration of a prior Board of Veterans' Appeals decision may be
filed at any time. Such motions must be filed at the following address:
Director, Administrative Service (014), Board of Veterans' Appeals, 810
Vermont Avenue, NW., Washington, DC 20420.
(c) Disposition. The Chairman will review the sufficiency of the
allegations set forth in the motion and, depending upon the decision
reached, proceed as follows:
(1) Motion denied. The appellant and representative or other
appropriate party will be notified if the motion is denied. The
notification will include reasons why the allegations are found
insufficient. This constitutes final disposition of the motion.
(2) Motion allowed. If the motion is allowed, the appellant and his
or her representative, if any, will be notified. The appellant and the
representative will be given a period of 60 days from the date of
mailing of the letter of notification to present additional arguments or
evidence. The date of mailing of the letter of notification will be
presumed to be the same as the date of the letter of notification. The
Chairman will assign a Reconsideration panel in accordance with 19.11
of this chapter.
(Authority: 38 U.S.C. 7103, 7108)
20.1002 Rule 1002. (Reserved)
38 CFR 20.1003 Rule 1003. Hearings on reconsideration.
After a motion for reconsideration has been allowed, a hearing will
be granted if an appellant desires to appear in person. A personal
hearing will not normally be scheduled solely for the purpose of
receiving argument by a representative. Such argument should be
submitted in the form of a written brief. Oral argument may also be
submitted on audio cassette for transcription for the record in
accordance with Rule 700(d) ( 20.700(d) of this part.). Requests for
appearances by representatives alone to personally present argument to
Members of the Board may be granted if good cause is shown. Whether
good cause has been shown will be determined by the presiding Member of
the hearing panel involved.
(Authority: 38 U.S.C. 7102, 7103, 7104(a), 7105(a))
20.1004 -- 20.1099 (Reserved)
38 CFR 20.1003 Subpart L -- Finality
38 CFR 20.1100 Rule 1100. Finality of decisions of the Board.
(a) General. All decisions of the Board are by majority decision and
will be stamped with the date of mailing on the face of the decision.
Unless the Chairman of the Board orders reconsideration, and with the
exception of matters listed in paragraph (b) of this section, all Board
decisions are final on the date stamped on the face of the decision.
With the exception of matters listed in paragraph (b) of this section,
the decision rendered by the reconsideration Section in an appeal in
which the Chairman has ordered reconsideration is final.
(b) Exceptions. Final Board decisions are not subject to review
except as provided in 38 U.S.C. 1975 and 1984 and 38 U.S.C. chapters 37
and 72. A remand is in the nature of a preliminary order and does not
constitute a final decision of the Board.
(Authority: 38 U.S.C. 511(a), 7103, 7104(a))
38 CFR 20.1101 Rule 1101. (Reserved)
38 CFR 20.1102 Rule 1102. Harmless error.
An error or defect in any decision by the Board of Veterans' Appeals
which does not affect the merits of the issue or substantive rights of
the appellant will be considered harmless and not a basis for vacating
or reversing such decision.
(Authority: 38 U.S.C. 7103)
38 CFR 20.1103 Rule 1103. Finality of determinations of the agency of
original jurisdiction where appeal is not perfected.
A determination on a claim by the agency of original jurisdiction of
which the claimant is properly notified is final if an appeal is not
perfected as prescribed in Rule 302 ( 20.302 of this part).
(Authority: 38 U.S.C. 7105)
38 CFR 20.1104 Rule 1104. Finality of determinations of the agency of
original jurisdiction affirmed on appeal.
When a determination of the agency of original jurisdiction is
affirmed by the Board of Veterans' Appeals, such determination is
subsumed by the final appellate decision.
(Authority: 38 U.S.C. 7104(a))
38 CFR 20.1105 Rule 1105. New claim after promulgation of appellate
decision.
When a claimant requests that a claim be reopened after an appellate
decision has been promulgated and submits evidence in support thereof, a
determination as to whether such evidence is new and material must be
made and, if it is, as to whether it provides a basis for allowing the
claim. An adverse determination as to either question is appealable.
(Authority: 38 U.S.C. 5108, 7104)
38 CFR 20.1106 Rule 1106. Claim for death benefits by survivor --
prior unfavorable decisions during veteran's lifetime.
Except with respect to benefits under the provisions of 38 U.S.C.
1318 and certain cases involving individuals whose Department of
Veterans Affairs benefits have been forfeited for treason or for
subversive activities under the provisions of 38 U.S.C. 6104 and 6105,
issues involved in a survivor's claim for death benefits will be decided
without regard to any prior disposition of those issues during the
veteran's lifetime.
(Authority: 38 U.S.C. 7104(b))
20.1107 -- 20.1199 (Reserved)
38 CFR 20.1106 Subpart M -- Privacy Act
38 CFR 20.1200 Rule 1200. Privacy Act request -- appeal pending.
When a Privacy Act request is filed under 1.577 of this chapter by
an individual seeking records pertaining to him or her and the relevant
records are in the custody of the Board, such request will be reviewed
and processed prior to appellate action on that individual's appeal.
(Authority: 5 U.S.C. 552a; 38 U.S.C. 7107)
38 CFR 20.1201 Rule 1201. Amendment of appellate decisions.
A request for amendment of an appellate decision under the Privacy
Act (5 U.S.C. 552a) may be entertained. However, such a request may not
be used in lieu of, or to circumvent, the procedures established under
Rules 1000 through 1003 ( 20.1000-20.1003 of this part). The Board
will review a request for correction of factual information set forth in
a decision. Where the request to amend under the Privacy Act is an
attempt to alter a judgment made by the Board and thereby replace the
adjudicatory authority and functions of the Board, the request will be
denied on the basis that the Act does not authorize a collateral attack
upon that which has already been the subject of a decision of the Board.
The denial will satisfy the procedural requirements of 1.579 of this
chapter. If otherwise appropriate, the request will be considered one
for reconsideration under Rules 1000 through 1003 ( 20.1000-20.1003 of
this part).
(Authority: 5 U.S.C. 552a(d); 38 U.S.C. 7103, 7108)
20.1202 -- 20.1299 (Reserved)
38 CFR 20.1201 Subpart N -- Miscellaneous
Cross-Reference: In cases involving access to patient information
relating to a Department of Veterans Affairs program for, or the
treatment of, drug abuse, alcoholism, alcohol abuse, sickle cell anemia,
or infection with the human immunodeficiency virus, also see 38 U.S.C.
7332.
38 CFR 20.1300 Rule 1300. Access to Board records.
(a) Removal of records. No original record, paper, document or
exhibit certified to the Board may be taken from the Board except as
authorized by the Chairman or except as may be necessary to furnish
copies or to transmit copies for other official purposes.
(Authority: 38 U.S.C. 5701)
(b) Release of information. Information requested from records,
including copies of such records in the custody of the Board of
Veterans' Appeals, may be furnished to a requester only when permitted
by law and in accordance with Department of Veterans Affairs
regulations.
(Authority: 5 U.S.C. 552, 552a; 38 U.S.C. 5701)
(c) Fees. The fees to be charged and collected for the release of
information and for any copies will be in accordance with 1.526,
1.555, and 1.577 of this chapter.
(Authority: 38 U.S.C. 5702(b))
(d) Waiver of fees. When information is requested from records
certified to and in the custody of the Board, the required fee may be
waived if such information is requested in connection with the
requestor's pending appeal.
(Authority: 38 U.S.C. 5702(b))
(e) Review of records. Information in the records may be reviewed by
Board of Veterans' Appeals employees who have a need to do so in the
performance of their duties.
(Authority: 5 U.S.C. 552a(b)(1))
38 CFR 20.1301 Rule 1301. Disclosure of information.
(a) Policy. It is the policy of the Board of Veterans' Appeals for
the full text of appellate decisions, Statements of the Case, and
Supplemental Statements of the Case to be disclosed to appellants. In
those situations where disclosing certain information directly to the
appellant would not be in conformance with 38 U.S.C. 5701, that
information will be removed from the decision, Statement of the Case, or
Supplemental Statement of the Case and the remaining text will be
furnished to the appellant. A full-text appellate decision, Statement
of the Case, or Supplemental Statement of the Case will be disclosed to
the designated representative, however, unless the relationship between
the appellant and representative is such (for example, a parent or
spouse) that disclosure to the representative would be as harmful as if
made to the appellant.
(Authority: 38 U.S.C. 7105(d)(2))
(b) Index to decisions. The appellate decisions of the Board of
Veterans' Appeals have been indexed to facilitate access to the contents
of the decisions (BVA Index I-01-1). The index, which is published
quarterly in microfiche form with an annual cumulation, is available for
review at Department of Veterans Affairs regional offices and at the
Research Center at the Board of Veterans' Appeals in Washington, DC.
The index can be used to locate citations to decisions with issues
similar to those of concern to an appellant. Each indexed decision has
a locator number assigned to it. The manner in which the locator number
is written will depend upon the age of the decision. Decisions archived
prior to late 1989 will have a number such as 82-07-0001. Decisions
archived at a later date will have a number such as BVA-90-12345. This
number must be used when requesting a paper copy of that decision.
These requests must be directed to the Appellate Index and Retrieval
Staff (01C1), Board of Veterans' Appeals, 810 Vermont Avenue, NW.,
Washington, DC 20420. Microfiche copies of BVA Index I-01-1 can be
obtained from Promisel and Korn, Inc., 7201 Wisconsin Avenue, suite 480,
Bethesda, MD 20814.
(Authority: 5 U.S.C. 552(a)(2))
38 CFR 20.1302 Rule 1302. Death of appellant during pendency of
appeal.
When an appeal is pending before the Board of Veterans' Appeals at
the time of the appellant's death, the Board may complete its action on
the issues properly before it without application from the survivors.
(Authority: 38 U.S.C. 7104(a))
38 CFR 20.1303 Rule 1303. Nonprecedential nature of Board decisions.
Although the Board strives for consistency in issuing its decisions,
previously issued Board decisions will be considered binding only with
regard to the specific case decided. Prior decisions in other appeals
may be considered in a case to the extent that they reasonably relate to
the case, but each case presented to the Board will be decided on the
basis of the individual facts of the case in light of applicable
procedure and substantive law.
(Authority: 38 U.S.C. 7104(a))
38 CFR 20.1304 Rule 1304. Request for change in representation,
request for personal hearing, or submission of additional evidence
following certification of an appeal to the Board of Veterans' Appeals.
(a) Request for a change in representation, request for a personal
hearing, or submission of additional evidence within 90 days following
notification of certification and transfer of records. An appellant and
his or her representative, if any, will be granted a period of 90 days
following the mailing of notice to them that an appeal has been
certified to the Board for appellate review and that the appellate
record has been transferred to the Board, or until the date the
appellate decision is promulgated by the Board of Veterans' Appeals,
whichever comes first, during which they may submit a request for a
personal hearing, additional evidence, or a request for a change in
representation. Any such request or additional evidence must be
submitted directly to the Board and not to the agency of original
jurisdiction. The date of mailing of the letter of notification will be
presumed to be the same as the date of that letter for purposes of
determining whether the request was timely made or the evidence was
timely submitted. Any evidence which is submitted at a hearing on
appeal which was requested during such period will be considered to have
been received during such period, even though the hearing may be held
following the expiration of the period. Any pertinent evidence
submitted by the appellant or representative is subject to the
requirements of paragraph (c) of this section and, if a simultaneously
contested claim is involved, the requirements of paragraph (d) of this
section.
(b) Subsequent request for a change in representation, request for a
personal hearing, or submission of additional evidence. Following the
expiration of the period described in paragraph (a) of this section, the
Board of Veterans' Appeals will not accept a request for a change in
representation, a request for a personal hearing, or additional evidence
except when the appellant demonstrates on motion that there was good
cause for the delay. Examples of good cause include, but are not
limited to, illness of the appellant or the representative which
precluded action during the period; death of an individual
representative; illness or incapacity of an individual representative
which renders it impractical for an appellant to continue with him or
her as representative; withdrawal of an individual representative; the
discovery of evidence that was not available prior to the expiration of
the period; and delay in transfer of the appellate record to the Board
which precluded timely action with respect to these matters. Such
motions must be in writing and must include the name of the veteran;
the name of the claimant or appellant if other than the veteran (e.g., a
veteran's survivor, a guardian, or a fiduciary appointed to receive VA
benefits on an individual's behalf); the applicable Department of
Veterans Affairs file number; and an explanation of why the request for
a change in representation, the request for a personal hearing, or the
submission of additional evidence could not be accomplished in a timely
manner. Such motions must be filed at the following address: Director,
Administrative Service (014), Board of Veterans' Appeals, 810 Vermont
Avenue, NW., Washington, DC 20420. The ruling on the motion will be by
the Chairman. Depending upon the ruling on the motion, action will be
taken as follows:
(1) Good cause not shown. If good cause is not shown, the request
for a change in representation, the request for a personal hearing, or
the additional evidence submitted will be referred to the agency of
original jurisdiction upon completion of the Board's action on the
pending appeal without action by the Board concerning the request or
additional evidence. Any personal hearing granted as a result of a
request so referred or any additional evidence so referred may be
treated by that agency as the basis for a reopened claim, if
appropriate. If the Board denied a benefit sought in the pending appeal
and any evidence so referred which was received prior to the date of the
Board's decision, or testimony presented at a hearing resulting from a
request for a hearing so referred, together with the evidence already of
record, is subsequently found to be the basis of an allowance of that
benefit, the effective date of the award will be the same as if the
benefit had been granted by the Board as a result of the appeal which
was pending at the time that the hearing request or additional evidence
was received.
(2) Good cause shown. If good cause is shown, the request for a
change in representation or for a personal hearing will be honored. Any
pertinent evidence submitted by the appellant or representative will be
accepted, subject to the requirements of paragraph (c) of this section
and, if a simultaneously contested claim is involved, the requirements
of paragraph (d) of this section.
(c) Consideration of additional evidence by agency of original
jurisdiction. Any pertinent evidence submitted by the appellant or
representative which is accepted by the Board under the provisions of
this section, as well as any such evidence referred to the Board by the
originating agency under 19.37(b) of this chapter, must be referred to
the agency of original jurisdiction for review and preparation of a
Supplemental Statement of the Case unless this procedural right is
waived by the appellant or unless the Board determines that the benefit,
or benefits, to which the evidence relates may be allowed on appeal
without such referral. Such waiver must be in writing or, if a hearing
on appeal is conducted, formally entered on the record orally at the
time of the hearing.
(d) Simultaneously contested claims. In simultaneously contested
claims, if pertinent evidence which directly affects payment, or
potential payment, of the benefit sought is submitted by any claimant
and is accepted by the Board under the provisions of this section, the
substance of such evidence will be mailed to each of the other claimants
who will then have 60 days from the date of mailing of notice of the new
evidence within which to comment upon it and/or submit additional
evidence in rebuttal. The date of mailing of the letter of notification
of the new evidence will be presumed to be the same as the date of that
letter for purposes of determining whether such comment or evidence in
rebuttal was timely submitted. No further period will be provided for
response to such comment or rebuttal evidence.
(Authority: 38 U.S.C. 7104, 7105, 7105A)
38 CFR 20.1304 -- Pt. 21
38 CFR 20.1304 -- PART 21 -- VOCATIONAL REHABILITATION AND EDUCATION
38 CFR 20.1304 -- Subpart A -- Vocational Rehabilitation Under 38
U.S.C. Chapter 31
Sec.
21.1 Training and rehabilitation for veterans with service-connected
disabilities.
21.21 Election of benefits under education programs administered by
the Department of Veterans Affairs.
21.22 Nonduplication -- Federal programs.
21.30 Claims.
21.31 Informal claim.
21.32 Time limit.
21.35 Definitions.
21.40 Basic entitlement.
21.41 Basic period of eligibility.
21.42 Basic period of eligibility deferred.
21.44 Extension beyond basic period of eligibility because of serious
employment handicap.
21.45 Extension beyond basic period of eligibility for a program of
independent living services.
21.47 Eligibility for employment assistance.
21.48 Severance of service-connection -- reduction to noncompensable
degree.
21.50 Initial evaluation.
21.51 Employment handicap.
21.52 Serious employment handicap.
21.53 Reasonable feasibility of achieving a vocational goal.
21.57 Extended evaluation.
21.58 Redetermination of employment handicap and serious employment
handicap.
21.59 Review and appeal of decisions on eligibility and entitlement.
21.60 Vocational Rehabilitation Panel.
21.62 Duties of the Vocational Rehabilitation Panel.
21.70 Vocational rehabilitation.
21.72 Rehabilitation to the point of employability.
21.73 Duration of employment assistance programs.
21.74 Extended evaluation.
21.76 Independent living.
21.78 Approving more than 48 months of rehabilitation.
21.79 Determining entitlement usage under chapter 31.
21.80 Requirement for a rehabilitation plan.
21.82 Completing the plan under Chapter 31.
21.84 Individualized written rehabilitation plan.
21.86 Individualized extended evaluation plan.
21.88 Individualized employment assistance plan.
21.90 Individualized Independent Living Plan.
21.92 Preparation of the plan.
21.94 Changing the plan.
21.96 Review of the plan.
21.98 Appeal of disagreement regarding development of, or change in,
the plan.
21.100 Counseling.
21.120 Educational and vocational training services.
21.122 School course.
21.123 On-job course.
21.124 Combination course.
21.126 Farm cooperative course.
21.128 Independent study course.
21.129 Home study course.
21.130 Educational and vocational courses outside the United States.
21.132 Repetition of the course.
21.134 Limitation on flight training.
21.140 Evaluation and improvement of rehabilitation potential.
21.142 Adult basic education.
21.144 Vocational course in sheltered workshop or rehabilitation
facility.
21.146 Independent instructor course.
21.148 Tutorial assistance.
21.150 Reader service.
21.152 Interpreter service for the hearing impaired.
21.154 Special transportation assistance.
21.155 Services to a veteran's family.
21.156 Other incidental goods and services.
21.160 Independent living services.
21.162 Participation in a program of independent living services.
21.180 Case status system.
21.182 ''Applicant'' status.
21.184 ''Evaluation and planning'' status.
21.186 ''Ineligible'' status.
21.188 ''Extended evaluation'' status.
21.190 ''Rehabilitation to the point of employability'' status.
21.192 ''Independent living program'' status.
21.194 ''Employment services'' status.
21.196 ''Rehabilitated'' status.
21.197 ''Interrupted'' status.
21.198 ''Discontinued'' status.
21.210 Supplies.
21.212 General policy in furnishing supplies during periods of
rehabilitation.
21.214 Furnishing supplies for special programs.
21.216 Special equipment.
21.218 Methods of furnishing supplies.
21.219 Supplies consisting of clothing, magazines and periodicals,
and items which may be personally used by the veteran.
21.220 Replacement of supplies.
21.222 Release of, and repayment for, training and rehabilitation
supplies.
21.224 Prevention of abuse.
21.240 Medical treatment, care and services.
21.242 Resources for provision of treatment, care and services.
21.250 Overview of employment services.
21.252 Job development and placement services.
21.254 Supportive services.
21.256 Incentives for employers.
21.257 Self-employment.
21.258 Special assistance for veterans in self-employment.
21.260 Subsistence allowance.
21.262 Procurement and reimbursement of cost for training and
rehabilitation services, supplies, or facilities.
21.264 Election of payment at the Chapter 30 or Chapter 34
educational assistance rate.
21.266 Payment of subsistence allowance under special conditions.
21.268 Employment adjustment allowance.
21.270 Payment of subsistence allowance during leave and between
periods of instruction.
21.272 Veteran-student services.
21.274 Revolving fund loan.
21.276 Incarcerated veterans.
21.282 Effective date of induction into a rehabilitation program.
21.284 Reentrance into a rehabilitation program.
21.290 Training and rehabilitation resources.
21.292 Course approvals.
21.294 Selecting the training or rehabilitation facility.
21.296 Selecting a training establishment for on-job training.
21.298 Selecting a farm.
21.299 Use of Government facilities for on-job training or work
experience at no or nominal pay.
21.310 Rate of pursuit of a rehabilitation program.
21.312 Reduced work tolerance.
21.314 Pursuit of training under special conditions.
21.320 Awards for subsistence allowance and authorization of
rehabilitation services.
21.322 Commencing dates of subsistence allowance.
21.324 Reduction or termination dates of subsistence allowance.
21.326 Authorization of employment services.
21.328 Two veteran cases -- dependents.
21.330 Apportionment.
21.332 Payments of subsistence allowance.
21.334 Election of payment at the Chapter 30 or Chapter 34 rate.
21.340 Introduction.
21.342 Leave accounting policy.
21.344 Facility offering training or rehabilitation services.
21.346 Facility temporarily not offering training or rehabilitation
services.
21.348 Leave following completion of a period of training or
rehabilitation services.
21.350 Unauthorized absences.
21.362 Satisfactory conduct and cooperation.
21.364 Unsatisfactory conduct and cooperation.
21.370 Intraregional travel at government expense.
21.372 Interregional transfer at government expense.
21.374 Authorization for travel of attendants.
21.376 Travel expenses for initial evaluation and counseling.
21.380 Establishment of qualifications for personnel providing
assistance under Chapter 31.
21.382 Training and staff development for personnel providing
assistance under Chapter 31.
21.390 Rehabilitation research and special projects.
21.400 Veterans' Advisory Committee on Rehabilitation.
21.402 Responsibilities of the Veterans' Advisory Committee on
Rehabilitation.
21.410 Delegation of authority.
21.412 Finality of decisions.
21.414 Revision of decision.
21.420 Informing the veteran.
21.422 Reduction in subsistence allowance following loss of a
dependent.
21.430 Accountability for authorization and payment of training and
rehabilitation services.
38 CFR 20.1304 -- Subpart B -- Veterans' Educational Assistance Under
38 U.S.C. Chapter 34
21.1020 Educational assistance.
21.1021 Definitions.
21.1022 Nonduplication -- programs administered by VA.
21.1025 Nonduplication; Federal programs.
21.1030 Claims.
21.1031 Informal claims.
21.1032 Time limits.
21.1040 Basic eligibility.
21.1041 Periods of entitlement.
21.1042 Ending dates of eligibility.
21.1043 Extended period of eligibility.
21.1044 Additional period of eligibility.
21.1045 Entitlement charges.
38 CFR 20.1304 -- Subpart C -- Survivors' and Dependents' Educational
Assistance Under 38 U.S.C. Chapter 35
21.3020 Educational assistance.
21.3021 Definitions.
21.3022 Nonduplication -- programs administered by VA.
21.3023 Nonduplication; pension, compensation and dependency and
indemnity compensation.
21.3024 Nonduplication; Federal Employees' Compensation Act.
21.3025 Nonduplication; Federal programs.
21.3030 Claims.
21.3031 Informal claims.
21.3032 Time limits.
21.3040 Eligibility; child.
21.3041 Periods of eligibility; child.
21.3042 Service with Armed Forces.
21.3043 Suspension of program; child.
21.3044 Entitlement.
21.3045 Entitlement charges.
21.3046 Periods of eligibility; spouses and surviving spouses.
21.3145 Work-study allowance.
21.3300 Special restorative training.
21.3301 Need.
21.3302 Agreements.
21.3303 Extent of training.
21.3304 Assistance during training.
21.3305 ''Interrupted'' status.
21.3306 Reentrance after interruption.
21.3307 ''Discontinued'' status.
21.3330 Payments.
21.3331 Commencing date.
21.3332 Discontinuance dates.
21.3333 Rates.
38 CFR 20.1304 -- Subpart D -- Administration of Educational Benefits;
38 U.S.C. Chapters 34, 35, and 36
21.4001 Delegations of authority.
21.4002 Finality of decisions.
21.4003 Revision of decisions.
21.4005 Conflicting interests.
21.4006 False or misleading statements.
21.4007 Forfeiture.
21.4008 Prevention of overpayments.
21.4009 Overpayments; waiver or recovery.
21.4020 Two or more programs.
21.4022 Nonduplication -- programs administered by VA.
21.4025 Nonduplication; Federal programs.
21.4100 Counseling.
21.4101 Counseling -- 38 U.S.C. Chapter 34.
21.4102 Requirement -- 38 U.S.C. Chapter 35.
21.4103 Failure to cooperate.
21.4104 Travel expenses.
21.4105 Special training -- 38 U.S.C. Chapter 35.
21.4130 Educational assistance allowance.
21.4131 Commencing dates.
21.4132 (Reserved)
21.4133 Notification of suspension or discontinuance.
21.4134 Suspension and discontinuance.
21.4135 Discontinuance dates.
21.4136 Rates; educational assistance allowance; 38 U.S.C. Chapter
34.
21.4137 Rates; educational assistance allowance; 38 U.S.C. Chapter
35.
21.4138 Certifications and release of payments.
21.4139 Payee.
21.4140 Apportionment.
21.4141 Offsets; 38 U.S.C. Chapter 35; pension, compensation and
dependency and indemnity compensation.
21.4145 Veteran-student services.
21.4146 Assignments of benefits prohibited.
21.4150 Designation.
21.4151 Cooperation.
21.4152 Control by agencies of the United States.
21.4153 Reimbursement of expenses.
21.4154 Report of activities.
21.4155 Evaluations of State approving agency performance.
21.4200 Definitions.
21.4201 Restrictions on enrollment; percentage of students receiving
financial support.
21.4202 Overcharges; restrictions on enrollments.
21.4203 Reports -- requirements.
21.4204 Periodic certifications.
21.4205 Absences.
21.4206 Reporting fee.
21.4207 Failure of school to meet requirements.
21.4208 Central Office Education and Training Review Panel.
21.4209 Examination of records.
21.4230 Requirements.
21.4231 Educational plan -- 38 U.S.C. Chapter 35 -- child.
21.4232 Specialized vocational training -- 38 U.S.C. Chapter 35.
21.4233 Combination.
21.4234 Change of program.
21.4235 Special assistance for the educationally disadvantaged --
Chapter 34.
21.4236 Special supplemental assistance (tutorial).
21.4237 Special assistance for the educationally disadvantaged --
Chapter 35.
21.4250 Approval of courses.
21.4251 Period of operation of course.
21.4252 Courses precluded.
21.4253 Accredited courses.
21.4254 Nonaccredited courses.
21.4255 Refund policy; nonaccredited courses.
21.4256 Correspondence courses.
21.4257 Cooperative courses.
21.4258 Notice of approval.
21.4259 Suspension or disapproval.
21.4260 Courses in foreign countries.
21.4261 Apprentice courses.
21.4262 Other training on-the-job courses.
21.4263 Flight training -- 38 U.S.C. chapter 30 and 10 U.S.C.
chapter 106.
21.4264 Farm cooperative courses.
21.4265 Practical training approved as institutional training or
on-job training.
21.4266 Courses offered at subsidiary branches or extensions.
21.4270 Measurement of courses.
21.4271 Trade or technical; high schools.
21.4272 Collegiate course measurement.
21.4273 Collegiate graduate.
21.4274 Law courses.
21.4275 Practical training courses; measurement.
21.4276 Special assistance; 38 U.S.C. Chapter 35.
21.4277 Discontinuance -- unsatisfactory progress and conduct.
21.4278 Reentrance after discontinuance.
21.4279 Combination correspondence-residence program.
21.4280 Independent study leading to a standard college degree.
38 CFR 20.1304 -- Subpart E -- Nondiscrimination in Vocational
Rehabilitation and Education Programs -- Title VI, Civil Rights Act of
1964
21.4300 Civil rights assurances; Title VI, Pub. L. 88-352.
21.4301 Institutions of higher learning; elementary and secondary
schools; medical institutions.
21.4302 Proprietary vocational schools and training establishments.
21.4304 Assurance of compliance received -- institutions of higher
learning; elementary and secondary schools; medical facilities.
21.4305 Noncompliance; complaints; initial action.
21.4306 Payments after final agency action.
21.4307 Posttermination compliance.
38 CFR 20.1304 -- Subpart F -- Education Loans
21.4500 Definitions.
21.4501 Eligibility.
21.4502 Applications.
21.4503 Determination of loan amount.
21.4504 Promissory note.
21.4505 Check delivery.
21.4507 Advertising.
38 CFR 20.1304 -- Subpart F-1 Veterans' Job Training
21.4600 Job training program.
21.4602 Definitions.
21.4610 Eligibility requirements.
21.4612 Application and certifications.
21.4620 Program approval.
21.4622 Employer applications for approval.
21.4623 Disapproval of new program entries.
21.4624 Withdrawal of approval.
21.4630 Entrance into training.
21.4631 Job readiness skills development and counseling.
21.4632 Payment restrictions.
21.4634 Overpayments.
21.4640 Inspection of records.
21.4642 Monitoring and investigations.
21.4644 False Claims Act.
21.4646 Delegations of authority.
38 CFR 20.1304 -- Subpart F-2 -- Officer Adjustment Benefit; Officer
Adjustment Benefit Program
21.4700 Eligibility for benefit payments.
21.4701 Application.
21.4702 Election.
21.4703 Officer adjustment benefit payment.
21.4704 Provisions not applicable to this subpart.
21.4705 Delegation of authority.
38 CFR 20.1304 -- Subpart G -- Post-Vietnam Era Veterans' Educational
Assistance Under 38 U.S.C. Chapter 32
21.5001 Administration of benefits program; Chapter 32.
21.5020 Post-Vietnam era veterans' educational assistance.
21.5021 Definitions.
21.5022 Eligibility under more than one program.
21.5023 Nonduplication; Federal programs.
21.5030 Applications, claims, informal claims, and time limits.
21.5040 Basic eligibility.
21.5041 Periods of entitlement.
21.5042 Extended period of eligibility.
21.5050 Application requirements for participation.
21.5052 Contribution requirements.
21.5053 Restoration of contributions (Persian Gulf War).
21.5054 Dates of participation.
21.5058 Resumption of participation.
21.5060 Disenrollment.
21.5062 Date of disenrollment.
21.5064 Refund upon disenrollment.
21.5065 Refunds without disenrollment.
21.5066 Suspension of participation.
21.5067 Death of participant.
21.5070 Entitlement.
21.5071 Months of entitlement allowed.
21.5072 Entitlement charge.
21.5074 Excessive absences.
21.5076 Entitlement charge -- overpayment cases.
21.5078 Interruption to conserve entitlement.
21.5100 Counseling.
21.5103 Travel expenses.
21.5130 Payments; educational assistance allowance.
21.5131 Educational assistance allowance.
21.5132 Criteria used in determining benefit payments.
21.5133 Certifications and release of payments. (Eff. 8-1-93)
21.5134 Restrictions on paying benefits to servicepersons.
21.5135 Advance payments.
21.5136 Benefit payments -- secondary school program.
21.5138 Computation of benefit payments and monthly rates.
21.5139 Computation of benefit payments for incarcerated individuals.
21.5141 Tutorial assistance.
21.5145 Work-study program.
21.5150 State approving agencies.
21.5200 Schools.
21.5230 Programs of education.
21.5231 Combination.
21.5232 Change of program.
21.5250 Courses.
21.5270 Assessment and pursuit of course.
21.5290 Educational Assistance Pilot Program.
21.5292 Reduced monthly contribution for certain individuals.
21.5294 Transfer of entitlement.
21.5296 Extended period of eligibility.
21.5300 Civil rights.
38 CFR 20.1304 -- Subpart H -- Educational Assistance Test Program
21.5701 Establishment of educational assistance test program.
21.5703 Overview.
21.5705 Transfer of authority.
38 CFR 20.1304 -- General
21.5720 Definitions.
21.5725 Obtaining benefits.
38 CFR 20.1304 -- Claims and Applications
21.5730 Applications, claims and informal claims.
21.5732 Time limits.
38 CFR 20.1304 -- Eligibility and Entitlement
21.5740 Eligibility.
21.5741 Eligibility under more than one program.
21.5742 Entitlement.
21.5743 Transfer of entitlement.
21.5744 Charges against entitlement.
21.5745 Period of entitlement.
38 CFR 20.1304 -- Courses
21.5800 Courses.
38 CFR 20.1304 -- Certifications
21.5810 Certifications of enrollment.
21.5812 Reports of withdrawals and terminations of attendance and
changes in training time.
21.5816 False or fraudulent claims.
38 CFR 20.1304 -- Payment -- Educational Assistance and Subsistence
Allowance
21.5820 Educational assistance.
21.5822 Subsistence allowance.
21.5824 Nonduplication: Federal programs.
21.5828 False or misleading statements.
21.5830 Payment of educational assistance.
21.5831 Commencing date of subsistence allowance.
21.5834 Discontinuance dates: General.
21.5835 Specific discontinuance dates.
21.5838 Overpayments.
38 CFR 20.1304 -- Measurement of Courses
21.5870 Measurement of courses.
38 CFR 20.1304 -- Administrative
21.5900 Administration of benefits program -- Chapter 107, Title 10,
United States Code.
21.5901 Delegations of authority.
38 CFR 20.1304 -- Subpart I -- Temporary Program of Vocational Training
for Certain New Pension Recipients
21.6001 Temporary vocational training program for certain pension
recipients.
21.6005 Definitions.
21.6010 Applicability of rules and administrative procedures under 38
U.S.C., chapter 31.
21.6015 Claims and elections.
21.6021 Nonduplication -- 38 U.S.C., chapters 30, 31, 32, 34 and 35.
21.6040 Eligibility for vocational training and employment
assistance.
21.6042 Entry, reentry and completion.
21.6050 Participation of eligible veterans in an evaluation.
21.6052 Evaluations.
21.6054 Criteria for determining good employment potential.
21.6056 Cooperation of the veteran in an evaluation.
21.6058 Consequences of evaluation.
21.6059 Limitations on the number of evaluations.
21.6060 Services and assistance.
21.6070 Basic duration of a vocational training program.
21.6072 Extending the duration of a vocational training program.
21.6074 Computing the period of vocational training program
participation.
21.6080 Requirement for an individualized written rehabilitation or
employment assistance plan.
21.6082 Completing the plan.
21.6100 Counseling.
21.6120 Educational and vocational training services.
21.6140 Evaluation and improvement of rehabilitation potential.
21.6160 Independent living services.
21.6180 Case status system.
21.6210 Supplies.
21.6240 Medical treatment, care and services.
21.6242 Resources for provision of medical treatment, care and
services.
21.6260 Financial assistance.
21.6282 Effective dates of induction into and termination of
vocational training.
21.6284 Reentrance into a training program.
21.6290 Training resources.
21.6310 Rate of pursuit.
21.6320 Authorization of services under chapter 31 rules.
21.6340 Leaves of absence.
21.6362 Satisfactory conduct and cooperation.
21.6370 Authorization of transportation services.
21.6380 Additional applicable chapter 31 regulations.
21.6410 Delegation of authority.
21.6420 Coordination with the Adjudication Division.
38 CFR 20.1304 -- Subpart J -- Temporary Program of Vocational Training
and Rehabilitation
21.6501 Overview.
21.6503 Definitions.
21.6505 Participation in the temporary program.
21.6507 Special benefits for qualified veterans under test program.
21.6509 Notice to qualified veterans.
21.6511 (Reserved)
21.6513 (Reserved)
21.6515 Formulation of rehabilitation plan.
21.6517 (Reserved)
21.6519 Eligibility of qualified veterans for employment and
counseling services.
21.6521 Employment of qualified veterans.
21.6523 Entry and reentry into a program of counseling and employment
services under 38 U.S.C. 1504(a)(2) and (5).
21.6525 (Reserved)
38 CFR 20.1304 -- Subpart K -- All Volunteer Force Educational
Assistance Program (New GI Bill)
21.7000 Establishment of educational assistance program.
21.7020 Definitions.
21.7030 Applications, claims and informal claims.
21.7032 Time limits.
21.7040 Eligibility for basic educational assistance.
21.7042 Basic eligibility requirements.
21.7044 Persons with 38 U.S.C. ch. 34 eligibility.
21.7046 Eligibility for supplemental educational assistance.
21.7050 Ending dates of eligibility.
21.7051 Extended period of eligibility.
21.7070 Entitlement.
21.7072 Entitlement to basic educational assistance.
21.7073 Entitlement for some individuals who establish eligibility
during the open period.
21.7074 Entitlement to supplemental educational assistance.
21.7076 Entitlement charges.
21.7100 Counseling.
21.7103 Travel expenses.
21.7110 Selection of a program of education.
21.7112 Programs of education combining two or more types of courses.
21.7114 Change of program.
21.7120 Courses included in programs of education.
21.7122 Courses precluded.
21.7124 Overcharges.
21.7130 Educational assistance.
21.7131 Commencing dates.
21.7133 Suspension or discontinuance of payments.
21.7135 Discontinuance dates.
21.7136 Rates of payment of basic educational assistance.
21.7137 Rates of payment of basic educational assistance for
individuals with remaining entitlement under 38 U.S.C. ch. 34.
21.7138 Rates of supplemental educational assistance.
21.7139 Conditions which result in reduced rates.
21.7140 Certifications and release of payments.
21.7141 Tutorial assistance.
21.7142 Nonduplication of educational assistance.
21.7144 Overpayments.
21.7145 Work-study allowance.
21.7150 Pursuit.
21.7151 Advance payment certifications.
21.7152 Certification of enrollment.
21.7153 Progress and conduct.
21.7154 Pursuit and absences.
21.7156 Other required reports from educational institutions.
21.7158 False, late or missing reports.
21.7159 Reporting fee.
21.7170 Course measurement.
21.7172 Measurement of concurrent enrollments.
21.7200 State approving agencies.
21.7220 Course approval
21.7222 Courses and enrollments which may not be approved.
21.7280 Death benefit.
21.7301 Delegations of authority.
21.7302 Finality of decisions.
21.7303 Revision of decisions.
21.7305 Conflicting interests.
21.7307 Examination of records.
21.7310 Civil rights.
38 CFR 20.1304 -- Subpart L -- Educational Assistance for Members of
the Selected Reserve
Sec.
21.7500 Establishment and purpose of educational assistance program.
21.7520 Definitions.
21.7530 Applications, claims and informal claims.
21.7532 Time limits.
21.7540 Eligibility for educational assistance.
21.7550 Ending dates of eligibility.
21.7551 Extended period of eligibility.
21.7570 Entitlement.
21.7576 Entitlement charges.
21.7600 Counseling.
21.7603 Travel expenses.
21.7610 Selection of a program of education.
21.7612 Programs of education combining two or more types of courses.
21.7614 Change of program.
21.7620 Courses included in programs of education.
21.7622 Courses precluded.
21.7624 Overcharges-restrictions on enrollment.
21.7630 Educational assistance.
21.7631 Commencing dates.
21.7633 Suspension or discontinuance of payments.
21.7635 Discontinuance dates.
21.7636 Rates of payment.
21.7639 Conditions which result in reduced rates.
21.7640 Certifications and release of payments.
21.7642 Nonduplication of educational assistance.
21.7644 Overpayments.
21.7650 Pursuit.
21.7652 Certifications of enrollment and verification of pursuit.
21.7653 Progress and conduct.
21.7654 Certifications of attendance in courses not leading to a
standard college degree.
21.7656 Other required reports from institutions of higher learning.
21.7658 False, late or missing reports.
21.7659 Reporting fee.
21.7670 Measurement of courses leading to a standard college degree.
21.7672 Measurement of courses not leading to a standard college
degree.
21.7673 Measurement of concurrent enrollments.
21.7674 Measurement of practical training courses.
21.7700 State approving agencies.
21.7720 Course approval.
21.7722 Courses and enrollments which may not be approved.
21.7801 Delegation of authority.
21.7802 Finality of decisions.
21.7803 Revision of decisions.
21.7805 Conflicting interests.
21.7807 Examination of records.
21.7810 Civil rights.
38 CFR 20.1304 -- Subpart A -- Vocational Rehabilitation Under 38
U.S.C. Chapter 31
Authority: 38 U.S.C. 501.
Source: 49 FR 40814, Oct. 18, 1984, unless otherwise noted.
38 CFR 20.1304 -- Vocational rehabilitation overview
38 CFR 21.1 Training and rehabilitation for veterans with
service-connected disabilities.
(a) Purposes. The purposes of this program are to provide to
eligible veterans with compensable service-connected disabilities all
services and assistance necessary to enable them to achieve maximum
independence in daily living and, to the maximum extent feasible, to
become employable and to obtain and maintain suitable employment.
(Authority: 38 U.S.C. 3100)
(b) Basic requirements. Before a service-disabled veteran may
receive training and rehabilitation services under Chapter 31, Title 38
U.S.C., three basic requirements must be met:
(1) The Department of Veterans Affairs must first find that the
veteran has basic entitlement to services as prescribed by 21.40.
(Authority: 38 U.S.C. 3102)
(2) The services necessary for training and rehabilitation must be
identified by the Department of Veterans Affairs and the veteran.
(Authority: 38 U.S.C. 3106)
(3) An individual written plan must be developed by the Department of
Veterans Affairs and the veteran describing the goals of the program and
the means through which these goals will be achieved.
(Authority: 38 U.S.C. 3107)
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985)
38 CFR 21.1 Nonduplication
38 CFR 21.21 Election of benefits under education programs administered
by the Department of Veterans Affairs.
(a) Election of benefits required. A veteran must make an election
of benefits among the programs of education administered by VA for which
he or she may be eligible. A veteran who has basic entitlement to
rehabilitation under chapter 31 and is also eligible for assistance
under any of the other education programs administered by VA must make
an election of benefits between chapter 31 and any other VA program of
education for which he or she may be eligible. The veteran may reelect
at any time if he or she is otherwise eligible. (See 21.264 and
21.334.)
(Authority: 38 U.S.C. 1781(b))
(b) Use of prior training in formulating a rehabilitation program.
If a veteran has pursued an educational or training program under an
education program listed in 21.4020 of this part, the earlier program
of education or special restorative training shall be utilized to the
extent practicable.
(Authority: 38 U.S.C. 3695)
(53 FR 880, Jan. 14, 1988, as amended at 57 FR 57108, Dec. 3, 1992)
38 CFR 21.22 Nonduplication -- Federal programs.
(a) Allowances. A service-disabled veteran who is eligible for
benefits under Chapter 31, may not receive a subsistence allowance or
elect payment of an allowance at the educational assistance rate under
Chapter 30 pursuant to 21.264 if the veteran:
(1) Is on active duty and is pursuing a course of education which is
being paid for by the Armed Forces (or by the Department of Health and
Human Services in the case of the Public Health Service), or
(2) Is attending a course of education or training paid for under
Chapter 41, Title 5 U.S.C. and whose full salary is being paid to such
veteran while so training.
(Authority: 38 U.S.C. 3681; Pub. L. 98-525)
(b) Services which may be authorized. A service-disabled veteran who
is in one of the two categories defined in paragraph (a) of this section
is entitled to receive all benefits, other than an allowance, to which
he or she is otherwise entitled under Chapter 31, including:
(1) Payment of any tuition and fees not paid for by the Armed Forces.
(2) The cost of special services, such as reader services, tutorial
assistance, and special equipment during the period of such training.
(Authority: 38 U.S.C. 3681)
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4283, Jan. 30, 1989;
57 FR 57108, Dec. 3, 1992)
38 CFR 21.22 Claims
38 CFR 21.30 Claims.
A specific claim in the form prescribed by the Department of Veterans
Affairs must be filed for:
(a) A program of rehabilitation services, or
(b) Employment assistance.
(Authority: 38 U.S.C. 3102, 3117)
38 CFR 21.31 Informal claim.
Any communication or action indicating an intent to apply for
rehabilitation or employment assistance, from a veteran, a duly
authorized representative, or a Member of Congress may be considered an
informal claim. Upon receipt of an informal claim, if a formal claim
has not been filed, an application form will be forwarded to the veteran
for execution. In the case of a claim for rehabilitation, or employment
assistance, the formal claim will be considered filed as of the date of
receipt of the informal claim if received within 1 year from the date it
was sent to the veteran, or before cessation of the course, whichever is
earlier.
(Authority: 38 U.S.C. 5113)
38 CFR 21.32 Time limit.
(a) Time limit for filing evidence. The provisions of this paragraph
are applicable to an original application, formal or informal, for
rehabilitation or employment assistance and to a claim for increased
benefits by reason of the existence of a dependent.
(1) If a claimant's application is incomplete, the claimant will be
notified of the evidence necessary to complete the application;
(2) If the evidence is not received within 1 year from the date of
such notification, benefits may not be paid by reason of that
application.
(b) Failure to furnish claim or notice of time limit. The failure of
VA to furnish a claimant:
(1) Any form or information concerning the right to file a claim or
to furnish notice of the time limit for the filing of a claim is not a
basis for adjusting the periods allowed for these actions;
(2) Appropriate notice of time limits within which evidence must be
submitted to perfect a claim shall result in an adjustment of the period
during which the time limit runs. The period during which the time
limit runs shall be determined in accordance with paragraph (c) of this
section. As to appeals see 19.129 of this chapter.
(Authority: (38 U.S.C. 5113))
(c) Adjustment of time limit. (1) In computing the time limit for
any action required of a claimant or beneficiary to perfect the types of
claims described in paragraph (a) of this section, the first day of the
specified period will be excluded and the last day included. This rule
is applicable in cases in which the time limit expires on a workday.
Where the time limit would expire on a Saturday, Sunday, or holiday, the
next succeeding workday will be included in the computation.
(2) The period during which the veteran must provide information
necessary to perfect his or her claim does not begin to run until the
veteran has been notified of this requirement for submission of
information. The date of the letter of notification informing the
veteran of the action required and the time limit for accomplishing the
action shall be ''The first day of the specified period'' referred to in
paragraph (c)(1) of this section.
(Authority: 38 U.S.C. 5101, 5113, 510)
(49 FR 40814, Oct. 18, 1984, as amended at 55 FR 12821, Apr. 6, 1990)
Cross-Reference: Due Process. See 3.103.
38 CFR 21.32 Definitions
38 CFR 21.35 Definitions.
(a) Employment handicap. This term means an impairment of a
veteran's ability to prepare for, obtain, or retain employment
consistent with such veteran's abilities, aptitudes, and interests.
(Authority: 38 U.S.C. 3101(1))
(b) Independence in daily living. This term means the ability of a
veteran, without the service of others, or with a reduced level of the
services of others, to live and function within such veteran's family
and community.
(Authority: 38 U.S.C. 3101(2))
(c) Program of education. This term means:
(1) A combination of subjects or unit courses pursued at a school
which is generally acceptable to meet requirements for a predetermined
educational, professional or vocational objective; or
(2) Such subjects or courses which are generally acceptable to meet
requirements for more than one objective if all objectives pursued are
generally recognized as being related to a single career field; or
(3) Any unit course or subject, or combination of courses or
subjects, pursued by an eligible veteran at any educational institution
required by the Administrator of the Small Business Administration as a
condition to obtaining financial assistance under the provisions of
section (7)(i)(1) of the Small Business Act.
(Authority: 15 U.S.C. 636(i)(1), 38 U.S.C. 3452(b))
(d) Program of independent living services and assistance. This term
includes:
(1) The services provided in this program that are needed to enable a
veteran to achieve maximum independence in daily living, including
counseling, diagnostic, medical, social, psychological, and educational
services determined by the Department of Veterans Affairs to be
necessary, and
(2) The monthly allowance authorized by 38 U.S.C. Chapter 31 for such
a veteran.
(Authority: 38 U.S.C. 3101(4))
(e) Rehabilitated to the point of employability. This term means
that the veteran is employable in an occupation for which a vocational
rehabilitation program has been provided under this program
(Authority: 38 U.S.C. 3101(5))
(f) Rehabilitation program. This term includes, when appropriate:
(1) A vocational rehabilitation program (see paragraph (i) of this
section);
(2) A program of independent living services and assistance (see
paragraph (d) of this section) for a veteran for whom a vocational goal
has been determined not to be currently reasonably feasible; or
(Authority: 38 U.S.C. 3101(6); Pub. L. 99-576)
(3) A program of employment services for employable veterans who are
prior participants in Department of Veterans Affairs or state-federal
vocational rehabilitation programs.
(Authority: 38 U.S.C. 3117)
(g) Serious employment handicap. This term means a significant
impairment of a veteran's ability to prepare for, obtain, or retain
employment consistent with such veteran's abilities, aptitudes, and
interests.
(Authority: 38 U.S.C. 3101(7)
(h) Vocational goal. (1) The term vocational goal means a gainful
employment status consistent with a veteran's abilities, aptitudes, and
interests;
(2) The term achievement of a vocational goal is reasonably feasible
means the effects of the veteran's disability (service and
nonservice-connected), when considered in relation to the veteran's
circumstances does not prevent the veteran from successfully pursuing a
vocational rehabilitation program and becoming gainfully employed in an
occupation consistent with the veteran's abilities, aptitudes, and
interests;
(3) The term achievement of a vocational goal is not currently
reasonably feasible means the effects of the veteran's disability
(service and nonservice-connected), when considered in relation to the
veteran's circumstances at the time of the determination:
(i) Prevent the veteran from successfully achieving a vocational goal
at that time; or
(ii) Are expected to worsen within the period needed to achieve a
vocational goal and which would, therefore, make achievement not
reasonably feasible.
(Authority: 38 U.S.C. 3101(8), 3109(A)(i), Pub. L. 99-576)
(i) Vocational rehabilitation program. This term includes:
(1) The services that are needed for the accomplishment of the
purposes of 38 U.S.C. Chapter 31 including such counseling, diagnostic,
medical, social, psychological, independent living, economic,
educational, vocational, and employment services as are determined by
the Department of Veterans Affairs to be needed;
(i) In the case of a veteran for whom the achievement of a vocational
goal has not been found to be currently infeasible, such services
include:
(A) Determining whether a vocational goal is reasonably feasible;
(B) Improving the veteran's potential to participate in a program of
services designed to achieve a vocational goal;
(C) Enabling the veteran to achieve maximum independence in daily
living;
(ii) In the case of a veteran for whom achievement of a vocational
goal is feasible, such services include assisting the veteran to become,
to the maximum extent feasible, employable and to obtain and maintain
suitable employment; and
(2) The term also includes the monetary assistance authorized by 38
U.S.C. Chapter 31 for a veteran receiving any of the services described
in this paragraph.
(Authority: 38 U.S.C. 3101(9); Pub. L. 99-576)
(j) Program of employment services. This term includes the
counseling, medical, social, and other placement and post-placement
services provided to a veteran under 38 U.S.C. Chapter 31 to assist the
veteran in obtaining or maintaining suitable employment.
(Authority: 38 U.S.C. 3117)
(k) Other terminology. The following are primarily intended as
explanations rather than definitions of terms to which frequent
reference will be made in these regulations.
(1) Counseling psychologist. Unless otherwise stated, the term
counseling psychologist refers to a counseling psychologist in the
Vocational Rehabilitation and Education Service in the Veterans Benefits
Administration, Department of Veterans Affairs.
(Authority: 38 U.S.C. 3118(c))
(2) Vocational rehabilitation specialist. Unless otherwise stated,
the term vocational rehabilitation specialist refers to a vocational
rehabilitation specialist in the Vocational Rehabilitation and Education
Service in the Veterans Benefits Administration of the Department of
Veterans Affairs, or to a Department of Veterans Affairs counseling
psychologist performing the duties of a Vocational Rehabilitation
Specialist.
(Authority: 38 U.S.C. 3118(c))
(3) School, educational institution, institution. These terms means
any public or private school, secondary school, vocational school,
correspondence school, business school, junior college, teachers'
college, college, normal school, professional school, university, or
scientific or technical institution, or other institution furnishing
education for adults.
(Authority: 38 U.S.C. 3452(c))
(4) Training establishment. This term means any establishment
providing apprentice or other training on the job, including those under
the supervision of a college or university or any State department of
education, or any State apprenticeship agency, or any State board of
vocational education, or any joint apprenticeship committee, or the
Bureau of Apprenticeship and Training established in accordance with 29
U.S.C. Chapter 4C, or any agency of the Federal Government authorized to
supervise such training.
(Authority: 38 U.S.C. 3452(e))
(5) Rehabilitation facility. This term means a distinct
organizational entity, either separate or within a larger insititution
or agency, which provides goal-oriented comprehensive and coordinated
services to individuals designed to evaluate and minimize the
handicapping effects of physical, mental, social and vocational
disadvantages, and to effect a realization of the individual's
potential.
(Authority: 38 U.S.C. 3115(a))
(6) Workshop. This term means a charitable organization or
institution, conducted not for profit, but for the purpose of carrying
out an organized program of evaluation and rehabilitation for
handicapped workers and/or for providing such individuals with
remunerative employment and other occupational rehabilitative activity
of an educational or therapeutic nature.
(Authority: 38 U.S.C. 3115(a))
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985; 53 FR
50956, Dec. 19, 1988)
38 CFR 21.35 Basic Entitlement
38 CFR 21.40 Basic entitlement.
A veteran or serviceperson shall be entitled to a program of
rehabilitation services under 38 U.S.C. chapter 31 if all of the
following conditions are met:
(a) Service-connected disability. (1) The veteran has a
service-connected disability of 20 percent or more which is, or but for
the receipt of retired pay would be, compensable under 38 U.S.C.
chapter 11, and which was incurred or aggravated in service on or after
September 16, 1940; or
(2) A serviceperson is hospitalized for a service-connected
disability in a hospital over which the Secretary concerned has charge
pending discharge or release from active military, naval or air service
and is suffering from a disability which will likely be compensable at a
rate of 20 percent or more under 38 U.S.C. Chapter 11; or
(3) A veteran or serviceperson, as described in paragraphs (a)(1) and
(2) of this section, has a service-connected disability which is
compensable or is likely to be compensable at less than 20 percent, if
the individual filed an original application for Chapter 31 before
November 1, 1990.
(b) Employment handicap. The veteran or serviceperson is determined
to be in need of rehabilitation to overcome an employment handicap.
(Authority: 38 U.S.C. 3102, Pub. L. 101-508)
(56 FR 15836, Apr. 18, 1991)
38 CFR 21.40 Periods of Eligibility
38 CFR 21.41 Basic period of eligibility.
A veteran having basic entitlement may be provided a program of
rehabilitative services during the twelve-year period following
discharge. The beginning date of the twelve-year period is the day of
the veteran's discharge or release from his or her last period of active
military, naval, or air service and the ending date is twelve years from
the discharge or release date, unless the beginning date is deferred or
the ending date is deferred or extended as provided in 21.42, 21.44,
and 21.45.
(Authority: 38 U.S.C. 3103(a))
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985)
38 CFR 21.42 Basic period of eligibility deferred.
The basic twelve-year period of eligibility does not begin to run if
the veteran was prevented from beginning or continuing a vocational
rehabilitation program for one of the following reasons:
(a) Qualifying compensable service-connected disability established.
The basic twelve-year period shall not begin to run until the veteran
establishes the existence of a compensable service-connected disability
described in 21.40(a). When the veteran establishes the existence of a
compensable service-connected disability described in 21.40(a), the
basic twelve-year period begins on the day the Department of Veterans
Affairs notifies the veteran of this. The ending date is twelve years
from the beginning date.
(Authority: 38 U.S.C. 3103(b)(3), Pub. L. 101-508)
(b) Character of discharge. (1) The basic twelve-year period of
eligibility shall not begin to run during any period when the veteran
had not met the requirement of a discharge or release from the active
military, naval or air services under conditions other than dishonorable
before:
(i) The discharge or release was changed by appropriate authority, or
(ii) The Department of Veterans Affairs determines that the discharge
or release was under conditions other than dishonorable.
(2) The basic twelve-year period shall not begin to run during any
period in which the veteran's discharge or dismissal was considered a
bar to benefits by the Department of Veterans Affairs, before this bar
is removed by the Department of Veterans Affairs.
(3) When there is a change in the character of discharge or dismissal
under paragraph (b) (1) or (2) of this section the beginning date of the
basic twelve-year period of eligibility is the effective date of the
change. Determination of character of discharge and change in the
character of discharge shall be made under the provisions of 3.12. The
ending date is twelve years from the beginning date.
(Authority: 38 U.S.C. 3102(b) (2))
(c) Medical condition prevents initiation or continuation. (1) The
basic 12-year period of eligibility shall not begin to run or continue
to run during any period of 30 days or more in which the veteran's
participation in vocational rehabilitation is infeasible because of the
veteran's medical condition, which condition may include the disabling
effects of chronic alcoholism, subject to paragraph (c)(5) of this
section. The 12-year period shall begin or resume when it is feasible
for the veteran to participate in a vocational rehabilitation program,
as that term is defined in 21.35.
(2) The term disabling effects of chronic alcoholism means
alcohol-induced physical or mental disorders or both, such as habitual
intoxication, withdrawal, delirium, amnesia, dementia, and other like
manifestations of chronic alcoholism which, in the particular case:
(i) Have been medically diagnosed as manifestations of alcohol
dependency or chronic alcohol abuse; and
(ii) Are determined to have prevented commencement or completion of
the affected individual's rehabilitation program.
(3) A diagnosis of alcoholism, chronic alcoholism, alcohol
dependency, chronic alcohol abuse, etc., in and of itself, does not
satisfy the definition of disabling effects of chronic alcoholism.
(4) Injury sustained by a veteran as a proximate and immediate result
of activity undertaken by the veteran while physically or mentally
unqualified to do so due to alcoholic intoxication is not considered a
disabling effect of chronic alcoholism.
(5) The disabling effects of chronic alcoholism, which prevent
initiation or continuation of participation in a vocational
rehabilitation program after November 17, 1988, shall not be considered
to be the result of willful misconduct.
(Authority: 38 U.S.C. 3103(b)(1), Pub. L. 100-689)
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended
at 55 FR 40171, Oct. 2, 1990; 56 FR 15836, Apr. 18, 1991)
38 CFR 21.44 Extension beyond basic period of eligibility because of
serious employment handicap.
The basic period of eligibility of a veteran with a serious
employment handicap may be extended when the veteran's employment and
particular handicap necessitate an extension as necessary to pursue a
vocational rehabilitation program under the following conditions:
(a) Not rehabilitated to the point of employability. The basic
period of eligibility may be extended when the veteran has not
previously been rehabilitated to the point of employability.
(Authority: 38 U.S.C. 3103(c))
(b) Rehabilitated to the point of employability. The veteran was
previously declared rehabilitated to the point of employability, under
the Department of Veterans Affairs vocational rehabilitation program,
but either:
(1) The veteran's service-connected disability or disabilities have
worsened to the extent that he or she is unable to perform the duties of
the occupation in which he or she is trained, or in a related
occupation; or
(2) The occupation in which the veteran was rehabilitated to the
point of employability is not presently suitable in view of the
veteran's current employment handicap and capabilities. (The finding of
unsuitability must be based upon objective evidence developed in the
course of reconsideration which shows that the nature or extent of the
veteran's employment handicap and his or her capabilities are
significantly different than were previously found.) or;
(3) Occupational requirements have changed and additional services
are needed to help the veteran continue in the occupation in which he or
she was trained or in a related field.
(Authority: 38 U.S.C. 3103(c))
38 CFR 21.45 Extension beyond basic period of eligibility for a program
of independent living services.
The period of eligibility for a veteran to pursue a program of
independent living services may be extended beyond the basic twelve-year
period under the following conditions:
(a) The veteran's medical condition (service and nonservice-connected
disabilities) is so severe that achievement of a vocational goal is not
currently reasonably feasible, or (b) the extension is necessary to
ensure that he or she will achieve maximum independence in daily living.
(Authority: 38 U.S.C. 3103(d); Pub. L. (99-576)
(49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50956, Dec. 19,
1988)
38 CFR 21.47 Eligibility for employment assistance.
(a) Providing employment services to veterans eligible for a
rehabilitation program under chapter 31. Each veteran, other than one
found in need of a program of independent living services and
assistance, who is otherwise currently eligible for and entitled to
participate in a program of rehabilitation under chapter 31 may receive
employment services. Included are those veterans who:
(1) Have completed a program of rehabilitation services under chapter
31 and been declared rehabilitated to the point of employability;
(2) Have not completed a period of rehabilitation to the point of
employability under chapter 31, but:
(i) Have elected to secure employment without completing the period
of rehabilitation to the point of employability; and
(ii) Are employable; or
(3) Have never received services for rehabilitation to the point of
employability under chapter 31 if they:
(i) Are employable or employed in a suitable occupation;
(ii) Have an employment handicap or a serious employment handicap;
and
(iii) Need employment services to secure and/or maintain suitable
employment.
(Authority: 38 U.S.C. 3102)
(b) Veteran previously participated in a VA vocational rehabilitation
program or a similar program under the Rehabilitation Act of 1973, as
amended. A veteran who at some time in the past has participated in a
vocational rehabilitation program under chapter 31 or a similar program
under the Rehabilitation Act of 1973 as amended, and is employable is
eligible for employment services under the following conditions even
though he or she is ineligible for any other assistance under chapter
31:
(1) The veteran is employable in a suitable occupation;
(2) The veteran has filed a claim for vocational rehabilitation or
employment assistance;
(3) The veteran meets the criteria for eligibility described in
21.40(a); and
(4) The veteran has an employment handicap or serious employment
handicap; and
(5) The veteran:
(i) Completed a vocational rehabilitation program under 38 U.S.C.
ch. 31 or participated in such a program for at least 90 days on or
after September 16, 1940; or
(ii) Completed a vocational rehabilitation program under the
Rehabilitation Act of 1973 after September 26, 1975, or participated in
such a program which included at least 90 days of postsecondary
education or vocational training.
(Authority: 38 U.S.C. 3117)
(c) Veteran never received vocational rehabilitation services from
the Department of Veterans Affairs or under the Rehabilitation Act of
1973. If a veteran is currently ineligible under chapter 31 because he
or she does not have an employment handicap, and has never before
participated in a vocational rehabilitation program under chapter 31 or
under the Rehabilitation Act of 1973, no employment assistance may now
be provided to the veteran under chapter 31.
(Authority: 38 U.S.C. 3117)
(d) Duration of period of employment assistance. The periods during
which employment assistance may be provided are not subject to
limitations on periods of eligibility for vocational rehabilitation
provided in 21.41 through 21.45 of this part, but entitlement to such
assistance is, as provided in 21.73 of this part, limited to 18 total
months of assistance.
(Authority: 38 U.S.C. 3105)
(54 FR 21215, May 17, 1989, as amended at 56 FR 15836, Apr. 18, 1991)
38 CFR 21.48 Severance of service connection -- reduction to
noncompensable degree.
When a rating action is taken which proposes severance of
service-connection or reduction to a noncompensable degree, the
provisions of the following paragraphs will govern the veteran's
entitlement to rehabilitation and employment assistance under 38 U.S.C.
Chapter 31.
(a) Applicant. If the veteran is an applicant for rehabilitation or
employment assistance when the proposed rating action is taken, all
processes respecting determination of entitlement or induction into
training shall be immediately suspended. In no event shall any veteran
be inducted into a rehabilitation program or provided employment
assistance during the interim periods provided in 3.105 (d) and (e) of
this title. If the proposed rating action becomes final, the
application will be denied. See also 21.50 as to initial evaluation.
(Authority: 38 U.S.C. 3104)
(b) Reduction while in a rehabilitation program. If the proposed
rating action is taken while the veteran is in a rehabilitation program
and results in a reduction to a noncompensable rating of his or her
disability, the veteran may be retained in the program until the
completion of the program, except if ''discontinued'' under 21.198 he
or she may not reenter.
(Authority: 38 U.S.C. 3103)
(c) Severance while in a rehabilitation program. If the proposed
rating action is taken while the veteran is in a rehabilitation program
and results in severance of the service-connection of his or her
disability, rehabilitation will be terminated effective as of the last
day of the month in which severance of service-connection becomes final.
(Authority: 38 U.S.C. 3103)
38 CFR 21.48 Initial and Extended Evaluation
38 CFR 21.50 Initial evaluation.
(a) Eligibility for initial evaluation. VA shall provide an initial
evaluation to each individual who applies for benefits under chapter 31
if the individual's compensable service-connected disability meets one
of the conditions contained in 21.40(a).
(Authority: 38 U.S.C. 3102(1), Pub. L. 101-508)
(b) Purpose. An initial evaluation will be provided to each
individual who meets the conditions of paragraph (a) of this section to:
(1) Determine the existence of an employment handicap;
(2) Determine the basic twelve-year period of eligibility;
(3) Determine whether an employment handicap shall be considered a
serious employment handicap;
(4) Determine whether the basic twelve-year period of eligibility is
extended for a veteran with a serious employment handicap;
(5) Determine as expeditiously as possible, without extended
evaluation, whether achievement of a vocational goal is currently
reasonably feasible.
(6) Evaluate the ability of the veteran to live and function
independently within the veteran's family and community;
(7) Determine if the veteran is eligible for employment services
under 21.47;
(8) Develop information necessary to plan an individual program for a
veteran found eligible and entitled to services under Chapter 31; and
(9) Assist a veteran who is found ineligible for assistance under
Chapter 31 to identify other resources and programs for which he or she
may be eligible.
(Authority: 38 U.S.C. 523, 3106(d), 3116; Pub. L. 99-576)
(c) Scope of initial evaluation. The initial evaluation shall
include consideration of:
(1) The handicapping effects of the veteran's service-connected
disability on employability and independence in daily living;
(2) The veteran's residual physical and mental capabilities which
contribute to employability and independence in daily living;
(3) The veteran's ability to function independently in family and
community;
(4) Prior assessments of employability by a counseling psychologist;
(5) Assessments authorized to provide additional information
necessary for initial evaluation; and
(6) The veteran's personal history including:
(i) Education and training;
(ii) Employment;
(iii) Nonservice-connected dis- ability(ies), and
(iv) Family and community adjustment.
(Authority: 38 U.S.C. 3106(a))
(d) Responsibility for initial evaluation. (1) All determinations
regarding service requirements for basic entitlement and, the beginning
and ending dates of a veteran's basic twelve-year period of eligibility
shall be made by appropriate staff of the Adjudication Division.
(2) All other determinations, including extension of the basic
twelve-year period because of serious employment handicap, and
entitlement to assistance under Chapter 31 shall be made by appropriate
staff of the Vocational Rehabilitation and Counseling Division.
(Authority: 38 U.S.C. 3102, 3103, 3115(a))
(e) Cooperation of the veteran. The cooperation of the veteran is
essential to an initial evaluation. The purpose of the initial
evaluation and the steps in the process shall be explained to the
veteran and his or her cooperation requested. If the veteran does not
cooperate in the initiation or completion of the initial evaluation the
counseling psychologist shall make a reasonable effort through
counseling to secure the veteran's cooperation. If the veteran's
cooperation cannot be secured, the counseling psychologist shall suspend
the initial evaluation until such time as the veteran cooperates. The
veteran will be informed of any suspension of the initial evaluation,
the reasons for this action, and the steps necessary to resume the
evaluation.
(Authority: 38 U.S.C. 3111)
(49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50956, Dec. 19,
1988; 56 FR 15836, Apr. 18, 1991)
38 CFR 21.51 Employment handicap.
(a) Importance of decision. The proper determination of employment
handicap is a critical decision for rehabilitation planning and program
accountability. To the extent possible, necessary information shall be
developed in the course of initial evaluation and the significance of
the information under paragraphs (d) and (e) of this section for
determining employment handicap shown in each case.
(Authority: 38 U.S.C. 3101(1), 3102)
(b) Definition. The term employment handicap means an impairment of
the veteran's ability to prepare for, obtain, or retain employment
consistent with the veteran's abilities, aptitudes, and interests.
(Authority: 38 U.S.C. 3101(1))
(c) Components of employment handicap. Components of employment
handicap include:
(1) Impairment. This term means the restrictions on employability
caused by:
(i) The veteran's service and nonservice-connected disabilities;
(ii) Deficiencies in education and training;
(iii) Negative attitudes toward the disabled; and
(iv) Other pertinent factors.
(2) Service-connected disability. The veteran's service-connected
disability need not be the sole or primary cause of the employment
handicap but it must materially contribute to the impairment described
in paragraph (c)(1) of this section. Therefore its effects must be
identifiable, measurable, or observable.
(3) Nonservice-connected disability. This term includes all physical
and mental disabilities which have not been found to be
service-connected by the Department of Veterans Affairs, including
alcoholism and drug abuse. The effects of alcoholism and drug abuse are
to be considered in the same manner as other nonservice-connected
disabilities in evaluating restrictions on employability. When the
manifestations of alcoholism, drug abuse or other nonservice-connected
disabilities raise questions as to the reasonable feasibility of a
vocational goal for a veteran otherwise entitled to assistance under
Chapter 31 such questions will be resolved under provisions of 21.53.
(4) Consistency with abilities, aptitudes, and interests. The
following points should be considered to determine if the veteran's
training and employment are consistent with his or her abilities,
aptitudes and interests:
(i) A finding that a veteran is employed in an occupation which is
consistent with his or her abilities, aptitudes and interests may not be
made if the occupation does not require reasonably developed skills,
except under conditions described in paragraphs (e) (2) and (3), of this
section;
(ii) The veteran's residual capacities, as well as limitations
arising from the veteran's service and nonservice-connected disabilities
are relevant;
(iii) Evidence of the consistency of interests with training and
employment may be based on:
(A) The veteran's statements to a Department of Veterans Affairs
counseling psychologist during initial evaluation or subsequent
reevaluation;
(B) The veteran's history of participation in specific activities;
or
(C) Information developed by the Department of Veterans Affairs
through use of interest inventories.
(Authority: 38 U.S.C. 3102)
(d) Determining extent of impairment. The extent of the veterans
impairment shall be assessed through consideration of factors described
in paragraph (c)(1) of this section:
(e) Material contribution of service-connected disability to the
impairment. A finding that the veteran's service-connected disability
materially contributes to his or her impairment to employment will be
made by assessing the following factors:
(1) Preparation for employment. The service-connected condition
adversely affects the veteran's current ability to prepare for
employment in one or more fields which would otherwise be consistent
with the veteran's abilities, aptitudes, and interests. An adverse
effect is demonstrated when the physical or psychological results of the
service-connected condition:
(i) Impair the veteran's ability to train;
(ii) Prevent or impede access to training facilities; or
(iii) Diminish the veteran's motivation and ability to mobilize his
or her energies for education or training.
(2) Obtaining employment. The service-connected condition places the
veteran at a competitive disadvantage with similarly circumstanced
nondisabled persons in obtaining employment. A veteran without
reasonably developed specific job skills shall be considered to be at a
competitive disadvantage unless evidence of record shows a history of
current, stable, continuing employment.
(3) Retaining employment. The physical or psychological effects of a
service-connected condition adversely affect the veteran's ability to
maintain employment which requires reasonably developed skills. This
criterion is not met if a veteran though lacking reasonably developed
skills, has a history of continuing, stable employment.
(Authority: 38 U.S.C. 3101(1))
(f) Determination of employment handicap. The counseling
psychologist may find the veteran has an employment handicap.
(1) An employment handicap which entitles the veteran to assistance
under this program exists when all of the following conditions are met:
(i) The veteran has an impairment of employability; this includes
veterans who are qualified for suitable employment, but do not obtain or
retain such employment for reasons not within their control;
(ii) The veteran's service-connected disability materially
contributes to the impairment of employability;
(iii) The veteran has not overcome the effects of the impairment of
employability through employment in an occupation consistent with his or
her pattern of abilities, aptitudes and interests.
(2) An employment handicap does not exist when any of the following
conditions is present:
(i) The veteran's employability is not impaired; this includes
veterans who are qualified for suitable employment, but do not obtain or
retain such employment for reasons within their control;
(ii) The veteran's employability is impaired, but his or her
service-connected disability does not materially contribute to the
impairment of employability.
(iii) The veteran has overcome the effects of the impairment of
employability through employment in an occupation consistent with his or
her pattern of abilities, aptitudes and interests, and is successfully
maintaining such employment.
(Authority: 38 U.S.C. 3102)
(g) Eligibility for employment assistance. If a veteran is not found
to have an employment handicap a separate determination of his or her
eligibility for employment assistance will be made under provisions of
21.47.
(Authority: 38 U.S.C. 3117)
(h) Responsibility for determinations. The determination of an
employment handicap and eligibility for employment assistance may only
be made by a counseling psychologist in the Vocational Rehabilitation
and Counseling Division.
(Authority: 38 U.S.C. 3106(a))
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended
at 54 FR 21216, May 17, 1989)
38 CFR 21.52 Serious employment handicap.
(a) Requirement of determination of serious employment handicap. A
separate determination whether a serious employment handicap exists
shall be made in each case in which an employment handicap is found.
(Authority: 38 U.S.C. 3106(a))
(b) Definition. The term serious employment handicap means a
significant impairment of a veteran's ability to prepare for, obtain or
retain employment consistent with such veteran's abilities, aptitudes,
and interests.
(Authority: 38 U.S.C. 3101(7))
(c) Serious employment handicap exists. A veteran who has been found
to have an employment handicap shall also be held to have serious
employment handicap if he or she has:
(1) A neuropsychiatric service-connected disability rated at thirty
percent or more disabling; or
(2) Any other service-connected disability rated at fifty percent or
more disabling.
(d) Serious employment handicap may exist. A veteran with a
nonneuropsychiatric service-connected disability may be found to have a
serious employment handicap even though the disability is rated at
thirty or forty percent disabling, when either of the following
conditions exists:
(1) The veteran has a prior history of poor adjustment in training
and employment, and special efforts will be needed if the veteran is to
be rehabilitated; or
(2) The veteran's situation presents special problems due to
nonservice-connected disability, family pressures, etc., and a number of
special and supportive services are needed to effect rehabilitation.
(e) Serious employment handicap normally not found. A finding of
serious employment handicap will normally not be made when a veteran's
service-connected disability is rated at less than thirty percent
disabling. A finding of serious employment handicap may nevertheless be
made when:
(1) The veteran's service-connected disability has caused substantial
periods of unemployment or unstable work history;
(2) The veteran has demonstrated a pattern of maladaptive behavior
which is shown by a history of withdrawal from society or continuing
dependency on government income support programs; and
(f) Responsibility for determining serious employment handicap. A
counseling psychologist in the Vocational Rehabilitation and Counseling
Division shall make determinations of serious employment handicap.
(Authority: 38 U.S.C. 3106(a))
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 37332, Sept. 8,
1989)
38 CFR 21.53 Reasonable feasibility of achieving a vocational goal.
(a) Requirement. The Department of Veterans Affairs shall determine
the reasonable feasibility of achieving a vocational goal in each case
in which a veteran has either:
(1) An employment handicap, or
(2) A serious employment handicap.
(Authority: 38 U.S.C. 3106(a))
(b) Definition. The term vocational goal means a gainful employment
status consistent with the veteran's abilities, aptitudes, and
interests.
(Authority: 38 U.S.C. 3101(8))
(c) Expeditious determination. The determination of reasonable
feasibility shall be made as expeditiously as possible when necessary
information has been developed in the course of initial evaluation. If
an extended evaluation is necessary as provided in 21.57 a decision of
feasibility shall be made by the end of the extended evaluation. Any
reasonable doubt shall be resolved in favor of a finding of feasibility.
(Authority: 38 U.S.C. 3105(d))
(d) Vocational goal is reasonably feasible. Achievement of a
vocational goal is reasonably feasible for a veteran with either an
employment or serious employment handicap when the following conditions
are met:
(1) Vocational goal(s) has (have) been identified;
(2) The veteran's physical and mental conditions permit training for
the goal(s) to begin within a reasonable period; and
(3) The veteran:
(i) Possesses the necessary educational skills and background to
pursue the vocational goal; or
(ii) Will be provided services by the Department of Veterans Affairs
to develop such necessary educational skills as part of the program.
(Authority: 38 U.S.C. 3104(a)(1), 3106(a))
(e) Criteria for reasonable feasibility not met. (1) When VA finds
that the provisions of paragraph (d) of this section are not met, but VA
has not determined that achievement of a vocational goal is not
currently reasonably feasible, VA shall provide the rehabilitation
services contained in 21.35(i)(1)(i) of this part as appropriate;
(2) A finding that achievement of a vocational goal is infeasible
without a period of extended evaluation requires compelling evidence
which establishes infeasibility beyond any reasonable doubt.
(Authority: 38 U.S.C. 3104(a)(1), 3106(b))
(f) Independent living services. The counseling psychologist shall
determine the current reasonable feasibility of a program of independent
living services in each case in which a vocational rehabilitation
program is not found reasonably feasible. The concurrence of the
Vocational Rehabilitation and Counseling (VR&C) Officer is required in
any case in which the counseling psychologist does not approve a program
of independent living services.
(Authority: 38 U.S.C. 3100)
(g) Responsible staff. A counseling psychologist in the Vocational
Rehabilitation and Counseling Division shall determine whether
achievement of a vocational goal is:
(1) Reasonably feasible; or
(2) Not currently reasonably feasible under the provisions of
paragraph (e) of this section for the purpose of determining present
eligibility to receive a program of independent living services.
(Authority: 38 U.S.C. 3106(b), Pub. L. 99-576)
(49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50956, Dec. 19,
1988; 54 FR 37332, Sept. 8, 1989)
38 CFR 21.57 Extended evaluation.
(a) Purpose. The purpose of an extended evaluation for a veteran
with a serious employment handicap is to determine the current
feasibility of the veteran achieving a vocational goal, when this
decision reasonably cannot be made on the basis of information developed
during the initial evaluation.
(Authority: 38 U.S.C. 3106(c), Pub. L. 99-576)
(b) Scope of services. During the extended evaluation, a veteran may
be provided:
(1) Diagnostic and evaluative services;
(2) Services to improve his or her ability to attain a vocational
goal;
(3) Services to improve his or her ability to live and function
independently in the community;
(4) An allowance as provided in 21.260.
(Authority: 38 U.S.C. 3104)
(c) Determination. (1) The determination of the reasonable
feasibility of a veteran achieving a vocational goal will be made at the
earliest time possible during an extended evaluation, but not later than
the end of the period of evaluation, of an extension of that period.
Any reasonable doubt as to feasibility will be resolved in the veteran's
favor;
(2) When it is reasonably feasible for the veteran to achieve a
vocational goal, an individualized written rehabilitation plan (IWRP)
will be developed as indicated in 21.84 of this part.
(Authority: 38 U.S.C. 3106(b))
(d) Responsibility for determining the need for a period of extended
evaluation. A counseling psychologist in the Vocational Rehabilitation
and Counseling Division shall determine whether a period of extended
evaluation is needed.
(Authority: 38 U.S.C. 3106(c))
(49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50956, Dec. 19,
1988; 54 FR 37332, Sept. 8, 1989)
38 CFR 21.58 Redetermination of employment handicap and serious
employment handicap.
(a) Prior to induction into a program. A determination as to
employment handicap, serious employment handicap, or eligibility for a
program of employment services will not be changed except for:
(1) Unmistakable error in fact or law; or
(2) New and material evidence which justifies a change.
(b) After induction into a program. (1) The Department of Veterans
Affairs will not redetermine a finding of employment handicap, serious
employment handicap, or eligibility for a program of employment services
subsequent to the veteran's induction into a program because of a
reduction in his or her disability rating, including a reduction to 0
percent:
(2) The Department of Veterans Affairs may consider whether a finding
of employment handicap should be changed to serious employment handicap
when there is an increase in the degree of service-connected disability,
or other significant change in the veteran's situation;
(3) A redetermination of employment handicap, serious employment
handicap, or eligibility for a program of employment services will be
made when there is a clear and unmistakable error of fact or law.
(Authority: 38 U.S.C. 3102, 3106)
(c) Following rehabilitation or discontinuance. A veteran's
eligibility and entitlement to assistance must be redetermined in any
case in which:
(1) The veteran is determined to be rehabilitated to the point of
employability under the provisions of 21.190;
(2) The veteran is determined to meet the requirements for
rehabilitation under the provisions of 21.196; or
(3) The veteran's program is discontinued under the provisions of
21.198, except as described in 21.198(c)(3).
(Authority: 38 U.S.C. 3102, 3111)
38 CFR 21.59 Review and appeal of decisions on eligibility and
entitlement.
A veteran may appeal decisions of the Vocational Rehabilitation and
Counseling staff on eligibility and entitlement to rehabilitation
services to the Board of Veterans Appeals as provided in 19.2 of Title
38, CFR. However, the veteran or an accredited representative, on his
or her behalf, may request administrative review by Central Office prior
to filing an appeal to BVA. A case already on appeal to BVA may not be
referred to Central Office for administrative review or advisory
opinion.
(Authority: 38 U.S.C. 3107(c))
38 CFR 21.59 Vocational Rehabilitation Panel
38 CFR 21.60 Vocational Rehabilitation Panel.
(a) Establishment of the Panel. A Vocational Rehabilitation Panel
will be established at each field facility by the facility head. The
purpose of the Panel is to provide technical assistance in the planning
of rehabilitation programs for seriously disabled veterans and
dependents. This purpose will be most effectively carried out through
use of the services of a wide range of professionals to bring the
resources of the Department of Veterans Affairs and the community to
bear on problems presented in the individual case.
(Authority: 38 U.S.C. 3104(a))
(b) Composition of the Panel. The Panel will include, but not be
limited to the following:
(1) A counseling psychologist in the VR&C (Vocational Rehabilitation
and Counseling) Division as the chairperson;
(2) A vocational rehabilitation specialist in VR&C;
(3) A medical consultant from a Department of Veterans Affairs
Medical Center;
(4) A member of the Social Services staff from a Department of
Veterans Affairs Medical Center; and
(5) Other specialists from the Department of Veterans Affairs.
(Authority: 38 U.S.C. 3104(a), 3115(a))
(c) Appointment to the Panel.
(1) The VR&C (Vocational Rehabilitation and Counseling) Officer may
not serve as either chairperson or member of the Panel.
(2) The VR&C Officer will arrange for the participation of nonmedical
professional staff in the Panel's meetings.
(Authority: 38 U.S.C. 3115(a)(2))
(d) Scope of Panel review. The Panel will review each case which has
been referred to it in relation to:
(1) Specific reason for the referral; and
(2) Other problem areas which the Panel identifies in the course of
its consideration of the case.
(e) Referral. A case may be referred to the Panel by:
(1) A counseling psychologist in VR&C;
(2) A vocational rehabilitation specialist in VR&C; or
(3) The VR&C officer.
(f) Report. The Panel must prepare a report on its findings and
recommendations in each case. The Panel's recommendations may include
specific actions which are warranted on the basis of current
information, or may identify additional information needed to provide a
sounder basis for planning the veteran's program of rehabilitation.
(Authority: 38 U.S.C. 3104(a))
38 CFR 21.62 Duties of the Vocational Rehabilitation Panel.
(a) Consultation requested. The panel shall provide technical and
consultative services when requested by professional staff of the
Vocational Rehabilitation and Counseling (VR&C) Division to:
(1) Assist staff members in planning and carrying out a
rehabilitation plan for seriously disabled veterans and their
dependents; and
(2) Consider other cases of individuals eligible for, or being
provided assistance under chapter 31 and other programs of education and
training administered by the Department of Veterans Affairs.
(Authority: 38 U.S.C. 3104(a))
(b) Independent living services. The Panel has a key responsibility
to assure that seriously disabled service-connected veterans who need
independent living services to increase their independence in daily
living are provided necessary services. In carrying out this
responsibility the Panel shall review all cases which come before it to
assure that the proposed program of vocational rehabilitation or
independent living services includes those services necessary to enable
the veteran to achieve the goals of the program.
(Authority: 38 U.S.C. 3100)
(c) Dependents. The specific duties of the Panel with respect to
dependents are more fully described 21.3300, 21.3301, 21.3304,
21.4105, and 21.4276 of this part.
(Authority: 38 U.S.C. 3536, 3540, 3541, 3542, 3543)
(54 FR 37332, Sept. 8, 1989)
38 CFR 21.62 Duration of Rehabilitation Programs
38 CFR 21.70 Vocational rehabilitation.
(a) General. The goal of a vocational rehabilitation program is to:
(1) Evaluate and improve the veteran's ability to achieve a
vocational goal;
(2) Provide services needed to qualify for suitable employment;
(3) Enable the veteran to achieve maximum independence in daily
living;
(4) Enable the veteran to become employed in a suitable occupation
and to maintain suitable employment.
(b) Vocational rehabilitation program. This term includes:
(1) The services that are needed for the accomplishment of the
purposes of Chapter 31, including such counseling, diagnostic, medical,
social, psychological, independent living, economic, educational,
vocational, and employment services as are determined by the Department
of Veterans Affairs to be needed;
(i) In the case of a veteran for whom the achievement of a vocational
goal has not been found to be currently infeasible such needed services
include:
(A) Determining whether a vocational goal is reasonably feasible;
(B) Improving the veteran's potential to participate in a program of
services designed to achieve a vocational goal;
(C) Enabling the veteran to achieve maximum independence in daily
living;
(ii) In the case of a veteran for whom achievement of a vocational
goal is feasible, such needed services include assisting the veteran to
become, to the maximum extent feasible, employable and to obtain and
maintain suitable employment;
(2) The term also includes the monetary assistance authorized by
Chapter 31 for a veteran receiving any of the services described in this
paragraph.
(Authority: 38 U.S.C. 3101(9); Pub. L. 99-576)
(c) Duration of vocational rehabilitation. Decisions on the duration
of periods for attaining the goals named in paragraph (a) of this
section are made in the course of development and approval of the
Individualized Written Rehabilitation Plan. However, the duration of a
vocational rehabilitation program may not exceed 48 months (or its
equivalent when pursued on a part-time basis), except as provided in
21.78.
(Authority: 38 U.S.C. 3695, 3105)
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended
at 53 FR 50957, Dec. 19, 1988 )
38 CFR 21.72 Rehabilitation to the point of employability.
(a) General. Rehabilitation to the point of employability may
include the services needed to:
(1) Evaluate and improve the veteran's ability to undertake training;
(2) Train the veteran to the level generally recognized as necessary
for entry into employment in a suitable occupational objective. Where a
particular degree, diploma, or certificate is generally necessary for
entry into the occupation, e.g., an MSW for social work, the veteran
shall be trained to that level.
(Authority: 38 U.S.C. 3104)
(b) When duration of training may exceed general requirements -- (1)
Employment handicap. If the amount of training necessary to qualify for
employment in a particular occupation in a geographical area where a
veteran lives or will seek employment exceeds the amount generally
needed for employment in that occupation, the Department of Veterans
Affairs will provide, or arrange for the necessary additional training.
(2) Serious employment handicap. The Department of Veterans Affairs
will assist a veteran with a serious employment handicap to train to a
higher level than is usually required to qualify in a particular
occupation, when one of the following conditions exist:
(i) The veteran is preparing for a type of work in which he or she
will be at a definite disadvantage in competing with nondisabled persons
for jobs or business, and the additional training will help to offset
the competitive disadvantage;
(ii) The number of feasible occupations are restricted, and
additional training will enhance the veteran's employability in one of
those occupations;
(iii) The number of employment opportunities within feasible
occupations are restricted.
(Authority: 38 U.S.C. 3105(c))
(c) Responsibility for estimating duration of training. (1) The
counseling psychologist shall estimate the duration of training and the
estimate shall be incorporated in the IWRP (Individualized Written
Rehabilitation Plan). When the period of training is estimated to
exceed 48 months, the concurrence of the Vocational Rehabilitation and
Counseling Officer is required, prior to approving the IWRP, under
conditions listed in 21.78.
(2) The estimated duration of the period of training required to
complete an original or amended IWRP may be extended when necessary.
Authorization of an extension is the responsibility of the counseling
psychologist, except as provided in paragraph (d) of this section. Any
extension which will result in use of more than 48 months of entitlement
must meet conditions described in 21.78.
(Authority: 38 U.S.C. 3695)
(d) Extension of training by the vocational rehabilitation
specialist. (1) The VRS (Vocational Rehabilitation Specialist) may
authorize an extension of up to six months of the period of vocational
rehabilitation training authorized by the IWRP when:
(i) The veteran is in rehabilitation to the point of employability
status under 21.190;
(ii) The veteran has completed more than half of the prescribed
training;
(iii) The veteran is making satisfactory progress;
(iv) The extension is necessary to complete training;
(v) Training can be completed within six months; and
(vi) The extension will not result in use of more than 48 months of
entitlement under Chapter 31 alone or in combination with other programs
identified in 21.4020.
(2) If the conditions listed in paragraph (d)(1) of this section are
not met, and an extension is needed to complete the program, the case
will be referred to the counseling psychologist for a determination.
(Authority: 38 U.S.C. 3105(c))
38 CFR 21.73 Duration of employment assistance programs.
(a) Duration. Employment assistance may be provided to the veteran
for the period necessary to enable the veteran to secure employment in a
suitable occupation, and to adjust in the employment. This period shall
not exceed 18 months. A veteran may be provided such assistance if he
or she is eligible for employment assistance under the provisions of
21.47 of this part.
(Authority: 38 U.S.C. 3105(b))
(b) Employment assistance not charged against Chapter 31 entitlement.
The period of employment assistance provided in paragraph (a) of this
section is not charged against the months of entitlement under Chapter
31 (see 21.70).
(Authority: 38 U.S.C. 3105(b))
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 21216, May 17, 1989)
38 CFR 21.74 Extended evaluation.
(a) General. An extended evaluation may be authorized for the period
necessary to determine whether the attainment of a vocational goal is
currently reasonably feasible for the veteran. The services which may
be provided during the period of extended evaluation are listed in
21.57(b) of this part.
(Authority: 38 U.S.C. 3106(a); Pub. L. 99-576)
(b) Duration. An extended evaluation may not be for less than two
weeks (full or part-time equivalent) nor for more than twelve months,
unless a longer period is necessary to determine whether achievement of
a vocational goal is reasonably feasible.
(c) Approval of the period of an extended evaluation. (1) The
counseling psychologist may approve an initial period of up to 12 months
for an extended evaluation.
(2) An additional period of extended evaluation of up to 6 months may
be approved by the counseling psychologist, if there is reasonable
certainty that the feasibility of achieving a vocational goal can be
determined during the additional period. The counseling psychologist
will obtain the concurrence of the Vocational Rehabilitation and
Counseling Officer before approving the extension of a period of
extended evaluation.
(3) An extension beyond a total period of 18 months for additional
periods of up to 6 months each may only be approved by the counseling
psychologist if there is a substantial certainty that a determination of
current feasibility may be made within this extended period. The
concurrence of the Director, Vocational Rehabilitation and Education
Service is also required for this extension.
(Authority: 38 U.S.C. 3105(a), 3106(b); Pub. L. 99-576)
(49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50957, Dec. 19,
1988; 54 FR 37332, Sept. 8, 1989)
38 CFR 21.76 Independent living.
(a) General. A program of independent living services may be
authorized to enable the veteran to:
(1) Reach the goals of the program, and
(2) Maintain the newly achieved level of independence in daily
living.
(Authority: 38 U.S.C. 3101(4), 3104(b))
(b) Period of independent living services. The duration of an
independent living services program may not exceed 24 months unless the
counseling psychologist finds that an additional period of up to 6
months would enable the veteran to substantially increase his or her
level of independence in daily living. The concurrence of the
Vocational Counseling and Rehabilitation Officer in this finding is
required.
(Authority: 38 U.S.C. 3105(d))
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 37332, Sept. 8,
1989)
38 CFR 21.78 Approving more than 48 months of rehabilitation.
(a) General. Neither the basic period of entitlement which may be
authorized for a program of rehabilitation under Chapter 31 alone, nor a
combination of entitlement of Chapter 31 and other programs listed in
21.4020 shall exceed 48 months except as indicated in paragraphs (b) and
(c) of this section.
(Authority: 38 U.S.C. 3695)
(b) Employment handicap. A rehabilitation program for a veteran with
an employment handicap may only be extended beyond 48 months when:
(1) The veteran previously completed training for a suitable
occupation but the veteran's service-connected disability has worsened
to the point that he or she is unable to perform the duties of the
occupation for which training had been provided, and a period of
training in the same or a different field is required. An extension
beyond 48 months under Chapter 31 alone shall be authorized for this
purpose.
(Authority: 38 U.S.C. 3105(c)(1)(A))
(2) The occupation in which the veteran previously completed training
is found to be unsuitable because of the veteran's abilities and
employment handicap. An extension beyond 48 months under Chapter 31
alone shall be approved for this purpose.
(Authority: 38 U.S.C. 3105(c)(1)(B))
(3) The veteran previously used education benefit entitlement under
other programs administered by VA, and the additional period of
assistance to be provided under Chapter 31 which the veteran needs to
become employable will result in more than 48 months being used under
all VA education programs, under these conditions the number of months
necessary to complete the program may be authorized under Chapter 31,
provided that the length of the extension will not result in
authorization of more than 48 months under Chapter 31 alone.
(Authority: 38 U.S.C. 3695)
(4) A veteran in an approved Chapter 31 program has elected payment
of benefits at the Chapter 30 educational assistance rate. The 48 month
limitation may be exceeded only:
(i) To the extent that the entitlement in excess of 48 months does
not exceed the entitlement previously used by the veteran in a course at
the secondary school level under 21.4235 before December 31, 1989, or
(ii) If the veteran is in a course on a term, quarter, or semester
basis which began before the 36 month limitation on Chapter 30
entitlement was reached, and completion of the course will be possible
by permitting the veteran to complete the training under Chapter 31.
(Authority: 38 U.S.C. 3013, 3695; Pub. L. 98-525)
(5) The assistance to be provided in excess of 48 months consists
only of a period of employment assistance (see 21.73).
(Authority: 38 U.S.C. 3105(b))
(c) Serious employment handicap. The duration of a rehabilitation
program for a veteran with a serious employment handicap may be extended
beyond 48 months under Chapter 31 for the number of months necessary to
complete a rehabilitation program under the following conditions:
(1) To enable the veteran to complete a period of rehabilitation to
the point of employability;
(2) To provide an extended evaluation in cases in which the total
period needed for an extended evaluation and for rehabilitation to the
point of employability would exceed 48 months;
(3) To provide a program of independent living services, including
cases in which achievement of a vocational goal becomes feasible during
or following a program of independent living services;
(4) Following rehabilitation to the point of employability:
(i) The veteran has been unable to secure employment in the
occupation for which training has been provided despite intensive
efforts on the part of the Department of Veterans Affairs and the
veteran, and a period of retraining or additional training is needed;
(ii) The skills which the veteran developed in training for an
occupation in which he or she was employed are no longer adequate to
maintain employment in that field and a period of retraining is needed;
(iii) The veteran's service-connected disability has worsened to the
point that he or she is unable to perform the duties of the occupation
for which the veteran has been trained, and a period of training in the
same or different field is required;
(iv) The occupation in which the veteran previously completed
training is found to be unsuitable due to the veteran's abilities and
employment handicap.
(5) The assistance to be provided in excess of 48 months consists,
only of a period of employment assistance. (see 21.73).
(Authority: 38 U.S.C. 3105(c)(2))
(d) Approval of extension beyond 48 months. All extensions of a
rehabilitation program beyond 48 months of total entitlement under all
Department of Veterans Affairs programs requires the approval of the
counseling psychologist and concurrence of the Vocational Rehabilitation
and Counseling Officer. Concurrence of the VR&C officer is not required
for an extension due to provision of employment assistance (see 21.21).
(Authority: 38 U.S.C. 3105(b))
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4283, Jan. 30, 1989;
57 FR 57108, Dec. 3, 1992)
38 CFR 21.79 Determining entitlement usage under chapter 31.
(a) General. The determination of entitlement usage for chapter 31
participants is made under the provisions of this section except as
provided in paragraph (f) of this section. Charges for entitlement
usage shall be based upon the principle that a veteran who pursues a
rehabilitation program for 1 day should be charged 1 day of entitlement.
The determination of entitlement is based upon the rate at which the
veteran pursues his or her rehabilitation program. The rate of pursuit
is determined under the provisions of 21.310 of this part.
(Authority: 38 U.S.C. 3108(d))
(b) No charge against chapter 31 entitlement. No charge will be made
against chapter 31 entitlement under any of the following circumstances:
(1) The veteran is receiving employment services under an
Individualized Employment Assistance Plan (IEAP);
(2) The veteran is receiving an employment adjustment allowance; or
(3) The veteran is on leave from his or her program, but leave is not
authorized by the Department of Veterans Affairs.
(Authority: 38 U.S.C. 3108(d), 3117)
(c) Periods during which entitlement may be charged. Charges for
usage of chapter 31 entitlement may only be made for program
participants in one of the following case statuses:
(1) Rehabilitation to the point of employability;
(2) Extended evaluation; or
(3) Independent living.
(Authority: 38 U.S.C. 3106, 3109)
(d) Method of charging entitlement under chapter 31. The Department
of Veterans Affairs will make a charge against entitlement:
(1) On the basis of total elapsed time (1 day of entitlement for each
day of pursuit) if the veteran is being provided a rehabilitation
program on a full-time basis;
(2) On the basis of a proportionate rate of elapsed time if the
veteran is being provided a rehabilitation program on a three-quarter,
one-half or less than one-half time basis. Entitlement is charged at a:
(i) Three-quarter time rate if pursuit is three-quarters or more, but
less than full-time;
(ii) One-half time rate if pursuit is half-time or more, but less
than three-quarter time;
(iii) One-quarter time rate if pursuit is less than half-time.
Measurement of pursuit on a one-quarter time basis is limited to
veterans in independent living or extended evaluation programs.
(Authority: 38 U.S.C. 3108(d), 3680(g))
(e) Computing entitlement. (1) The computation of entitlement is
based upon the rate of program pursuit, as determined under 21.310 of
this part, over the elapsed time during which training and
rehabilitation services were furnished;
(2) The Department of Veterans Affairs will compute elapsed time from
the commencing date of the rehabilitation program as determined under
21.322 of this part to the date of termination as determined under
21.324 of this part. This includes the period during which veterans not
receiving subsistence allowance because of a statutory bar; e.g.,
certain incarcerated veterans or servicepersons in a military hospital,
nevertheless, received other chapter 31 services and assistance.
Elapsed time includes the total period from the commencing date until
the termination date, except for any period of unauthorized leave;
(3) If the veteran's rate of pursuit changes after the commencing
date of the rehabilitation program, the Department of Veterans Affairs
will:
(i) Separate the period of rehabilitation program services into the
actual periods of time during which the veteran's rate of pursuit was
different; and
(ii) Compute entitlement based on the rate of pursuit for each
separate elapsed time period.
(Authority: 38 U.S.C. 3108(f))
(f) Special situtations. (1) When a chapter 31 participant elects
benefits of the kind provided under chapter 30 or chapter 34 as a part
of his or her rehabilitation program under chapter 31, the veteran's
entitlement usage will be determined by using the entitlement provisions
of those programs. Entitlement charges shall be in accordance with
21.7076 for chapter 30 and 21.1045 under chapter 34. The entitlement
usage computed under these provisions is deducted from the veteran's
chapter 31 entitlement. No entitlement charges are made against either
chapter 30 or chapter 34.
(Authority: 38 U.S.C. 3108(f))
(2) When a veteran is pursuing on-job training or work experience in
a Federal agency on a nonpay or nominal pay basis, the amount of
entitlement used is determined in the following manner:
(i) Entitlement used in on-job training in a Federal agency on a
nonpay or nominal pay basis is determined in the same manner as other
training.
(ii) Entitlement used in pursuing work experience will be computed in
the same manner as for veterans in on-job training except that work
experience may be pursued on a less than full-time basis. If the
veteran is receiving work experience on a less than full-time basis,
entitlement charges are based upon a proportionate amount of the
workweek. For example, if the workweek is 40 hours, three-quarter time
is at least 30 hours, but less than 40 hours, and half-time is at least
20 hours but less than 30 hours.
(Authority: 38 U.S.C. 3108(c))
(3) Entitlement is charged on a full-time basis for a veteran found
to have a reduced work tolerance.
(Authority: 38 U.S.C. 3108(d), 3680(g))
(g) Overpayment. The Department of Veterans Affairs will make a
charge against entitlement for an overpayment of subsistence allowance
under the conditions described in 21.1045(h) of this part.
(Authority: 38 U.S.C. 3680(g))
(54 FR 47770, Nov. 17, 1989)
38 CFR 21.79 Individualized Written Rehabilitation Plan
38 CFR 21.80 Requirement for a rehabilitation plan.
(a) General. An IWRP (Individualized Written Rehabilitation Plan)
will be developed for each veteran eligible for rehabilitation services
under Chapter 31. The plan is intended to assist in:
(1) Providing a structure which allows VR&C staff to translate the
findings made in the course of the initial evaluation into specific
rehabilitation goals and objectives;
(2) Monitoring the veteran's progress in achieving the rehabilitation
goals established in the plan;
(3) Assuring the timeliness of assistance by Department of Veterans
Affairs staff in providing services specified in the plan; and
(4) Evaluating the effectiveness of the planning and delivery of
rehabilitation services by VR&C staff.
(b) When a plan is prepared. A plan will be prepared in each case in
which a veteran will pursue:
(1) A vocational rehabilitation program, as that term is defined in
21.35(i);
(2) An extended evaluation program;
(3) An independent living services program; or
(4) An employment program.
(c) Plan -- a generic term. The term plan refers to the IWRP
(Individualized Written Rehabilitation Plan) 21.84, IEEP
(Individualized Extended Evaluation Plan) 21.86, IEAP (Individualized
Employment Assistance Plan) 21.88, and IILP (Individualized Independent
Living Plan) 21.90.
(Authority: 38 U.S.C. 3107(a))
(d) Plan not required. A plan will not be prepared for a veteran who
is not eligible for any assistance under Chapter 31. Department of
Veterans Affairs staff, with the veteran's assistance and cooperation,
will utilize information developed in the course of an initial
evaluation to assist the veteran to develop alternatives for education
and training, independence in daily living, or employment assistance.
This assistance should help the veteran in achieving attainable
vocational, independent living and employment goals utilizing benefits
and services for which the veteran may be eligible under other
Department of Veterans Affairs or non-Department of Veterans Affairs
programs.
(Authority: 38 U.S.C. 523)
38 CFR 21.82 Completing the plan under Chapter 31.
(a) Serious employment handicap. Each plan for a veteran with a
serious employment handicap shall provide for completion of the program
provided by the plan under Chapter 31. The provisions of 21.70 and
21.78(c) are designed to enable a veteran with a serious employment
handicap to pursue and complete a rehabilitation plan under Department
of Veterans Affairs auspices. These provisions shall be used as
necessary to accomplish the goals of the plan.
(Authority: 38 U.S.C. 3105(c), 3107)
(b) Employment handicap. A plan for a veteran with an employment
handicap that is not a serious employment handicap shall require that
the program be completed within 48 months, if the veteran is not
eligible for an extension as provided in 21.78. When the program
provided by the plan cannot be completed under Chapter 31 because of
limitations imposed by the veteran's termination date or months of
remaining entitlement, realistic, comprehensive and detailed
arrangements must be made which will enable the veteran to successfully
complete training under other auspices. If an arrangement cannot be
made which meets these requirements, the long-range vocational goal of
the veteran must be reevaluated, and another vocational goal selected
which can be completed using the veteran's remaining Chapter 31
resources.
(Authority: 38 U.S.C. 3107(a))
(c) Employment assistance when training is not completed under
Chapter 31. A plan for employment assistance may be implemented even
though the veteran's training has not been or will not be completed
under Chapter 31.
(Authority: 38 U.S.C. 3117(a))
38 CFR 21.84 Individualized written rehabilitation plan.
(a) Purpose. The purposes of the IWRP (Individualized Written
Rehabilitation Plan) are to:
(1) Identify goals and objectives to be achieved by the veteran
during the period of rehabilitation services that will lead to the point
of employability;
(2) Plan for placement of the veteran in the occupational field for
which training and other services will be provided; and
(3) Specify the key services needed by the veteran to achieve the
goals and objectives of the plan.
(Authority: 38 U.S.C. 3107)
(b) Elements of the plan. A plan will include the following:
(1) A statement of long-range rehabilitation goals. Each statement
of long-range goals shall include at a minimum:
(i) One vocational goal for a veteran with an employment handicap;
or
(ii) One vocational goal and, if applicable, one independent living
goal for a veteran with a serious employment handicap.
(2) Intermediate rehabilitation objectives; Intermediate objectives
are statements of achievement expected of the veteran to attain the
long-range goal. The development of appropriate intermediate objectives
is the cornerstone of an effective plan. Intermediate objectives should
have the following characteristics:
(i) The activity specified relates to the achievement of the goal;
(ii) The activity specified is definable in terms of observable
behavior (e.g., pursuing an A.A. degree);
(iii) The activity has a projected completion date;
(iv) The outcome desired upon completion is measurable (e.g.,
receiving an A.A. degree).
(3) The specific services to be provided by the Department of
Veterans Affairs as stated. Counseling shall be included in all plans
for a veteran with a serious employment handicap.
(4) The projected starting and completion dates of the planned
services and the duration of each service;
(5) Objective criteria and an evaluation procedure and schedule for
determining whether the objectives and goals are being achieved as set
forth; and
(6) The name, location, and phone number of the VBA case manager.
(Authority: 38 U.S.C. 3107(a))
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985)
38 CFR 21.86 Individualized extended evaluation plan.
(a) Purpose. The purpose of an IEEP is to identify the services
needed for the VA to determine the veteran's current ability to achieve
a vocational goal when this cannot reasonably be determined during the
initial evaluation.
(Authority: 38 U.S.C. 3107; Pub. L. 99-576)
(b) Elements of the plan. An IEEP shall include the same elements as
an IWRP except that:
(1) The long range goal shall be to determine achievement of a
vocational goal is currently reasonably feasible;
(2) The intermediate objectives relate to problems of questions which
must be resolved for the VA to determine the current reasonable
feasibility of achieving a vocational goal.
(Authority: 38 U.S.C. 3107(a); Pub. L. 99-576)
(53 FR 50957, Dec. 19, 1988)
38 CFR 21.88 Individualized employment assistance plan.
(a) Purpose. The purpose of the IEAP (Individualized Employment
Assistance Plan) is to assure that a comprehensive, thoughtful approach
is taken, enabling eligible veterans to secure suitable employment.
(Authority: 38 U.S.C. 3107)
(b) Requirement for a plan. An IEAP will be prepared:
(1) As part of an IWRP; or
(2) When the veteran is eligible for employment assistance under
provisions of 21.47.
(Authority: 38 U.S.C. 3107(a))
(c) Elements of the plan. The IEAP shall follow the same structure
as the IWRP. Each IEAP will include full utilization of community
resources to enable the veteran to:
(1) Secure employment; and
(2) Maintain employment.
(Authority: 38 U.S.C. 3117)
(d) Preparation of the IEAP. Preparation of the IEAP will be
completed:
(1) No later than 60 days before the projected end of the period of
rehabilitation services leading to the point of employability; or
(2) Following initial evaluation when employment services constitute
the whole of the veteran's program under provisions of 21.47.
(Authority: 38 U.S.C. 3107(a))
38 CFR 21.90 Individualized Independent Living Plan.
(a) Purpose. The purpose of the IILP is to identify the steps
through which a veteran, whose disabilities are so severe that a
vocational goal is not currently reasonably feasible, can become more
independent in daily living within the family and community.
(Authority: 38 U.S.C. 3109; Pub. L. 99-576)
(b) Elements of the plan. The IILP shall follow the same structure
as the IWRP. The plan will include:
(1) Services which may be provided under Chapter 31 to achieve
independence in daily living;
(Authority: 38 U.S.C. 3104)
(2) Utilization of programs with a demonstrated capacity to provide
independent living services for severely handicapped persons;
(Authority: 38 U.S.C. 3104(b), 3120(a))
(3) Services provided under other Department of Veterans Affairs and
non-Department of Veterans Affairs programs needed to achieve the goals
of the plan;
(Authority: 38 U.S.C. 3107)
(4) Arrangements for maintaining the improved level of independence
following completion of the plan.
(Authority: 38 U.S.C. 3107(a))
(49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50957, Dec. 19,
1988)
38 CFR 21.92 Preparation of the plan.
(a) General. The plan will be jointly developed by Department of
Veterans Affairs staff and the veteran.
(b) Approval of the plan. The terms and conditions of the plan must
be approved and agreed to by the counseling psychologist, the vocational
rehabilitation specialist, and the veteran.
(c) Implementation of the plan. The vocational rehabilitation
specialist or counseling psychologist designated as case manager has the
primary role in carrying out Department of Veterans Affairs
responsibility for implementation of the plan.
(d) Responsible staff. The counseling psychologist has the primary
responsibility for the preparation of plans.
(Authority: 38 U.S.C. 3107(a))
38 CFR 21.94 Changing the plan.
(a) General. The veteran, the counseling psychologist or the
vocational rehabilitation specialist may request a change in the plan at
any time.
(Authority: 38 U.S.C. 3107(c))
(b) Long-range goals. A change in the staement of a long-range goal
may only be made following a reevaluation of the veteran's
rehabilitation program by the counseling psychologist. A change may be
made when:
(1) Achievement of the current goal(s) is no longer reasonably
feasible; or
(2) The veteran's circumstances have changed or new information has
been developed which makes rehabilitation more likely if a different
long-range goal is established; and
(3) The veteran fully participates and concurs in the change.
(Authority: 38 U.S.C. 3107(b))
(c) Intermediate objectives or services. A change in intermediate
objectives or services provided under the plan may be made by the case
manager when such change is necessary to carry out the statement of
long-range goals. The veteran must concur in the change.
(Authority: 38 U.S.C. 3107(b))
(d) Minor changes. Minor changes in the plan (e.g., changing the
date of a scheduled evaluation) by the case manager may be made without
the participation and concurrence of the veteran.
(Authority: 38 U.S.C. 3107(b))
(e) Changes in duration of the plan. Any change in the total
duration of a veteran's rehabilitation plan is subject to provisions on
duration of a rehabilitation program described in 21.70-21.78.
(Authority: 38 U.S.C. 3107(b))
38 CFR 21.96 Review of the plan.
(a) General. The veteran's progress in reaching the goals of the
plan will be reviewed and evaluated as scheduled in the plan by the case
manager and the veteran.
(b) Comprehensive review required. The case manager and the veteran
will review all of the terms of the plan and the veteran's progress at
least every twelve months. On the basis of such review the veteran and
the case manager will agree whether the plan should be:
(1) Retained in its current form;
(2) Amended; or
(3) Redeveloped.
(Authority: 38 U.S.C. 3107(b))
38 CFR 21.98 Appeal of disagreement regarding development of, or change
in, the plan.
(a) General. The veteran may request a review of a proposed,
original, or amended plan when Department of Veterans Affairs staff and
the veteran do not reach agreement on the terms and conditions of the
plan. A veteran who requests a review of the plan must submit a written
statement to the case manager which:
(1) Requests a review of the proposed, original, or amended plan;
and
(2) Details his or her objections to the terms and conditions of the
proposed, original, or amended plan.
(b) Review by Vocational Rehabilitation and Counseling Officer. Upon
receipt of the veteran's request for review of the plan, the counseling
psychologist or the case manager will forward the request together with
relevant comment to the VR&C Officer who will:
(1) Review relevant information; and
(2) Inform the veteran of his or her decision within 90 days.
(c) Review by Vocational Rehabilitation and Education Service. The
veteran's request shall be reviewed by the Director, Vocational
Rehabilitation and Education Service in any case in which the Vocational
Rehabilitation and Counseling Officer is the case manager. The veteran
will be informed of the decision within 90 days.
(d) Appeal to the Board of Veterans Appeals. The veteran may appeal
an adverse decision of the Vocational Rehabilitation and Counseling
Officer, or the Director, Vocational Rehabilitation and Education
Service to the Board of Veterans Appeals.
(Authority: 38 U.S.C. 3107(c))
38 CFR 21.98 Counseling
38 CFR 21.100 Counseling.
(a) General. A veteran requesting or being furnished assistance
under Chapter 31 shall be provided professional counseling services by
VR&E (Vocational Rehabilitation and Education) Service and other staff
as necessary to:
(1) Carry out an initial evaluation in each case in which assistance
is requested;
(2) Develop a rehabilitation plan or plan for employment services in
each case in which the veteran is found during the initial evaluation to
be eligible and entitled to services;
(3) Assist veterans found ineligible for services under Chapter 31 to
the extent provided in 21.82; and
(4) Try to overcome problems which arise during the course of the
veteran's rehabilitation program or program of employment services.
(Authority: 38 U.S.C. 3101)
(b) Types of counseling services. VA will furnish comprehensive
counseling services, including but not limited to
(1) Psychological;
(2) Vocational;
(3) Personal adjustment;
(4) Employment;
(5) Educational.
(Authority: 38 U.S.C. 3104)
(c) Qualifications. Counseling services may only be furnished by VA
or other personnel who meet requirements established under provisions of
21.380 and other policies of the VA pertaining to the qualifications of
staff providing assistance under Chapter 31.
(Authority: 38 U.S.C. 3118)
(d) Limitations. (1) If a veteran resides within a State, counseling
services necessary to carry out the initial evaluation and the
development of a rehabilitation plan or a program of employment services
will be furnished by counseling psychologists in the Vocational
Rehabilitation and Education (VR&E) Division;
(2) If a veteran does not reside in a State the counseling services
necessary to carry out an initial evaluation may be accomplished in the
same manner as for a veteran residing in a State or through other
arrangements when deemed appropriate by the VR&E Division. These
alternative arrangements include, but are not limited to:
(i) Use of counseling centers or individual qualified professionals
under contract to VA; and
(ii) Professional staff of other Federal agencies located in the area
in which the veteran resides.
(3) Alternative arrangements to provide counseling are subject to the
following requirements:
(i) All arrangements must be consistent with the provisions of
paragraph (c) of this section regarding utilization of professionally
qualified persons to provide counseling services during the initial
evaluation;
(ii) All determinations of eligibility, entitlement and the
development of a rehabilitation plan will continue to be made by
counseling psychologists in the VR&E Division.
(4) If VR&E determines that the evidence of record is insufficient to
carry out an initial evaluation in a case in which alternative
arrangements were used, VA staff may authorize the veteran to travel to
a VA facility to complete the evaluation.
(Authority: 38 U.S.C. 3115)
(e) Definition. For the purposes of this section, the term State
means each of the several States, the District of Columbia, and the
Commonwealth of Puerto Rico.
(Authority: 38 U.S.C. 101)
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 32071, Aug. 4, 1989)
38 CFR 21.100 Educational and Vocational Training Services
38 CFR 21.120 Educational and vocational training services.
(a) Purposes. The purposes of providing educational and vocational
training services are to enable a veteran eligible for, and entitled to,
services and assistance under Chapter 31 to:
(1) Meet the requirements for employment in the occupational
objective established in the IWRP (Individualized Written Rehabilitation
Plan);
(2) Provide incidental training which is necessary to achieve the
employment objective in the IEAP (Individualized Employment Assistance
Plan);
(3) Provide incidental training needed to achieve the goals of an
IILP (Individualized Independent Living Plan); or
(4) Provide training services necessary to implement an IEEP
(Individualized Extended Evaluation Plan).
(b) Selection of courses. VA will generally select courses of study
and training, completion of which usually results in a diploma,
certificate, degree, qualification for licensure, or employment. If
such courses are not available in the area in which the veteran resides,
or if they are available but not accessible to the veteran, other
arrangements may be made. Such arrangements may include, but are not
limited to:
(1) Relocation of the veteran to another area in which necessary
services are available, or
(2) Use of an individual instructor to provide necessary training.
(Authority: 38 U.S.C. 3107)
(c) Charges for education and training services. The cost of
education and training services will be one of the factors considered in
selecting a facility when:
(1) There is more than one facility in the area in which the veteran
resides which:
(i) Meets requirements for approval under 21.292 through 21.298;
(ii) Can provide the education and training services, and other
supportive services specified in the veteran's plan; and
(iii) Is within reasonable commuting distance; or
(2) The veteran wishes to train at a suitable facility in another
area, even though training can be provided at a suitable facility in the
area in which the veteran resides.
(Authority: 38 U.S.C. 3115(a))
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985)
38 CFR 21.122 School course.
(a) Explanation of terms -- schools, educational institution, and
institution. These terms mean any public or private school, secondary
school, vocational school, correspondence school, business school,
junior college, teacher's college, college, normal school, professional
school, university, scientific or technical institution, or other
institution funishing education for adults.
(Authority: 38 U.S.C. 3452(c))
(b) Course. A course generally consists of a number of areas of
subject matter which are organized into learning units for the purpose
of attaining a specific educational or vocational objective. Organized
instruction in the units comprising the course is offered within a given
period of time and credit toward graduation or certification is
generally given.
(Authority: 38 U.S.C. 3104(a)(7))
(c) School course. A school course is a course as defined in
paragraph (b) of this section offered by a facility identified in
paragraph (a) of this section.
(Authority: 38 U.S.C. 3115)
38 CFR 21.123 On-job course.
(a) Training establishment. This term means any establishment
providing apprentice or other training on the job, including those under
the supervision of a college or university or any State department of
education, or any state apprenticeship agency, or any State board of
vocational education, or any joint apprenticeship committee, or the
Bureau of Apprenticeship and Training established in accordance with 29
U.S.C. Chapter 4C, or any agency of the Federal government authorized to
supervise such training.
(Authority: 38 U.S.C. 3452(e))
(b) On-job course, An on-job course is pursued toward a specified
vocational objective, provided by a training establishment. The trainee
learns, in the course of work performed under supervision, primarily by
receiving formal instruction, observing practical demonstration of work
tasks, and assisting in those tasks. Productive work should gradually
increase with greater independence from formal instruction as the course
progresses.
(Authority: 38 U.S.C. 3104(a)(7))
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985)
38 CFR 21.124 Combination course.
(a) General. A combination course is a course which combines
training on the job with training in school. For the purpose of VA
vocational rehabilitation, a course will be considered to be a
combination course, if the student spends full-time on the job and one
or more times a week also attends school on a part-tme basis. A veteran
may pursue the components of a combination course in the following
manner:
(1) Concurrent school and on-job training;
(2) Primarily on-job with some related instruction in school;
(3) In a school as a preparatory course to entering on-job training;
or
(4) First training on-job followed by the school portion.
(b) Cooperative course. A cooperative course is a special type of
combination course which usually:
(1) Has an objective which the student attains primarily through
school instruction with the on-job portion being supplemental to the
school course;
(2) Is at the college or junior college level although some
cooperative courses are offered at post-secondary schools which do not
offer a college degree or at secondary schools;
(3) Requires the student to devote at least one-half of the total
training period to the school portion of the course; and
(4) Includes relatively long periods each of training on the job and
in school such as a full term in school followed by a full term on the
job.
(Authority: 38 U.S.C. 3104(a)(7))
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985)
38 CFR 21.126 Farm cooperative course.
(a) Definition. An approvable farm cooperative course is a full-time
course designated to restore employability by training a veteran to:
(1) Operate a farm which he or she owns or leases; or
(2) Manage a farm as the employee of another.
(b) Reaching the goal of a farm cooperative course. The farm
cooperative course must enable a veteran to become proficient in the
type of farming for which he or she is being provided rehabilitation
services. The areas in which proficiency is to be established include:
(1) Planning;
(2) Producing;
(3) Marketing;
(4) Maintaining farm equipment;
(5) Conserving farm resources;
(6) Financing the farm;
(7) Managing the farm; and
(8) Keeping farm and home accounts.
(c) Instruction, including organized group instruction. Instruction
in a farm cooperative course may be by a mixture of organized group
(classroom) instruction and individual instruction or by individual
instruction alone. A course which includes organized group instruction
must meet the following criteria to be considered as full-time:
(1) The number of clock hours of instruction which should be provided
yearly shall meet the requirements of 21.310(a)(4) and 21.4264
pertaining to full-time pursuit of a farm cooperative course:
(2) The individual instructor portion of a farm cooperative course
shall include at least 100 hours of individual instruction per year.
(d) Instruction given solely by an individual instructor. (1)
Instruction in a farm cooperative course may be given solely by an
individual instructor if organized group instruction is:
(i) Not available within reasonable commuting distance of the
veteran's farm; or
(ii) The major portion of the organized group instruction that is
available does not have a direct relation to the veteran's farming
operation and pertinent VA records are fully and clearly documented
accordingly.
(2) To be considered full-time pursuit the individual instruction
provided in these course must:
(i) Consist of at least 200 hours of instruction per year;
(ii) Be given by a fully qualified individual instructor by contract
between VA and the instructor or an educational agency which employs the
instructor.
(e) Plan requirements for farm operator or farm manager. (1) The
plan for training developed by the case manager and the veteran in
collaboration with the instructor must include:
(i) A complete written survey including but not limited to the areas
identified in 21.298 (a) and (b);
(ii) An overall, long-term plan based upon the survey of the
operation of the farm;
(iii) An annual plan identifying the part of the overall plan to be
implemented which will be prepared before the beginning of each crop
year; and
(iv) A detailed individual training program showing the kind and
amount of instruction, classroom and individual, or individual; and
(2) The farm must meet the requirements for selecting a farm found in
21.298.
(Authority: 38 U.S.C. 3104(a)(7))
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985)
38 CFR 21.128 Independent study course.
A veteran may pursue a course by independent study under the
following conditions:
(a) College level. The course is offered by a college or university.
(b) College degree. The course leads to or is fully creditable
towards a standard college degree.
(c) Course content. The course consists of a prescribed program of
study with provision for interaction between the student and regularly
employed faculty of the university or college by mail, telephone,
personally, or class attendance.
(d) School responsibility. The university or college:
(1) Evaluates the course in semester or quarter hours or the
equivalent; and
(2) Prescribes a period for completion.
(Authority: 38 U.S.C. 3104(a)(7))
38 CFR 21.129 Home study course.
(a) Definition. A home study course is a course conducted by mail,
consisting of a series of written lesson assignments furnished by a
school to the student for study and preparation of written answers,
solutions to problems, and work projects which are corrected and graded
by the school and returned to the trainee.
(b) Limitations on inclusion of home study courses, in rehabilitation
plans. A veteran and his or her case manager may include a home study
course in a rehabilitation plan only when it supplements the major part
of the program. The purpose of the home study course is to provide the
veteran with theory or technical information directly related to the
practice of the occupation for which the veteran is training.
(Authority: 38 U.S.C. 3104(a)(7))
38 CFR 21.130 Education and vocational courses outside the United
States.
(a) General. VA may provide educational and vocational courses
outside a State if the case manager determines that such training is in
the best interest of the veteran and the Federal Government.
(b) Specific conditions. (1) The training must be necessary to
enable the veteran to qualify for, obtain, and retain suitable
employment in the occupational objective; and
(2) Either:
(i) The training is not available in the United States; or
(ii) The training is available in the United States, but personal
hardship would result from requiring that the veteran pursue training in
this country; and
(3) All necessary supportive and follow-up services, including
medical care and treatment and employment services, reasonably can be
provided by or through VA, considering such factors as the availability,
accessibility and cost of such services.
(Authority: 38 U.S.C. 3114)
(49 FR 40814, Oct. 18, 1984, as amended at 55 FR 27822, July 6, 1990)
38 CFR 21.132 Repetition of the course.
(a) Repeating all or part of the course. A veteran, having completed
a course under Chapter 31 according to the standards and practices of
the institution, ordinarily will not pursue it again at the expense of
VA. However, VA may approve repetition of all, or any part of the
course when VA determines that the repetition is necessary to accomplish
the veteran's vocational rehabilitation. A veteran repeating a course
under Chapter 31 is subject to the same requirements for satisfactory
pursuit and completion of the course as are other veterans taking the
course unless a longer period is needed because of the veteran's reduced
work tolerance.
(Authority: 38 U.S.C. 3104(a)(7))
(b) Review course. A veteran who has completed a course of training
under Chapter 31 may pursue a review course, such as a bar review
course, if it is specifically organized and conducted as a review
course.
(Authority: 38 U.S.C. 3104(a)(7))
(c) Auditing a subject. Auditing, as defined in 21.4200(i), may not
be authorized as a part of any rehabilitation plan. However, if an
individual repeats a course under the conditions described in paragraph
(a) of this section, the course shall not be considered an audited
course, if pursued in the same manner as a subject offered for credit.
The individual must meet the same requirements as other students, and
not be a mere listener.
(Authority: 38 U.S.C. 3680(a))
38 CFR 21.134 Limitation on flight training.
Flight Training approved under chapter 31 may only be authorized in
degree curriculums in the field of aviation that include required flight
training. This type of training is otherwise subject to the same
limitations as are applicable to flight training under Chapter 30.
(Authority: 38 U.S.C. 1504(c), 1515(b))
(57 FR 57108, Dec. 3, 1992)
38 CFR 21.134 Special Rehabilitation Services
38 CFR 21.140 Evaluation and improvement of rehabilitation potential.
(a) General. The purposes of these services are to:
(1) Evaluate if the veteran:
(i) Has an employment handicap;
(ii) Has a serious employment handicap; and
(iii) Is reasonably feasible for a vocational goal or an independent
living goal.
(2) Provide a basis for planning:
(i) A program of services and assistance to improve the veteran's
potential for vocational rehabilitation or independent living;
(ii) A suitable vocational rehabilitation program; or
(iii) A suitable independent living program.
(3) Reevaluate the vocational rehabilitation or independent living
potential of a veteran participating in a rehabilitation program under
Chapter 31, as necessary.
(4) Enable a veteran to achieve:
(i) A vocational goal; or
(ii) An independent living goal.
(Authority: 38 U.S.C. 3104)
(b) Periods during which evaluation and improvement services may be
provided. Evaluation and improvement services may be provided
concurrently, whenever necessary, with a period of rehabilitation
services, including:
(1) Initial evaluation or reevaluation;
(2) Extended evaluation:
(3) Rehabilitation to the point of employability:
(4) A program of independent living services: or
(5) Employment services, incidental to obtaining or maintaining
employment.
(c) Duration of full-time assistance. If evaluation and improvement
services are furnished on a full-time basis as a preliminary part of the
period of rehabilitation to the point of employability, or as the
vocational rehabilitation program, the duration of such assistance may
not exceed 12 months, except as provided in 21.74(c).
(Authority: 38 U.S.C. 3105)
(d) Scope of services. Evaluation and improvement services include:
(1) Diagnostic services;
(2) Personal and work adjustment training;
(3) Medical care and treatment;
(4) Independent living services;
(5) Language training, speech and voice correction, training in
ambulation, and one-hand typewriting;
(6) Orientation, adjustment, mobility and related services; and
(7) Other appropriate services.
(Authority: 38 U.S.C. 3104(a)(1))
38 CFR 21.142 Adult basic education.
(a) Definition. The term adult basic education means an
instructional program for the undereducated adult planned around those
basic and specific skills most needed to help him or her to function
adequately in society.
(b) Purposes. The purposes of providing adult basic education are
to:
(1) Upgrade a veteran's basic educational skills;
(2) Provide refresher training; or
(3) Remedy deficiencies which prevent the veteran from undertaking a
course of education or vocational training.
(c) Periods during which basic adult education may be provided.
Basic adult education may be authorized, as necessary, during;
(1) Rehabilitation to the point of employability;
(2) Extended evaluation; and
(3) Independent living services.
(Authority: 38 U.S.C. 3104(a)(1))
38 CFR 21.144 Vocational course in a sheltered workshop or
rehabilitation facility.
(a) General. A vocational course in a sheltered workshop or
rehabilitation facility may be an institutional, on-job, or combination
course which has been modified to facilitate successful pursuit by a
person with a disability that would otherwise prevent or impair the
person's participation in the course.
(b) Authorization. A vocational course in a sheltered workshop or
rehabilitation facility may be authorized when the training offered is a
sound method of restoring a veteran's employability.
(Authority: 38 U.S.C. 3104(a)(7))
38 CFR 21.146 Independent instructor course.
(a) Definition. An independent instructor course is a full-time
course of vocational training which the veteran pursues with an
individual instructor, who, independently of a training institution or
on-job training establishment, furnishes and conducts a vocational
course at a suitable place of training.
(b) Limitations on including an independent instructor course in a
rehabilitation plan. A veteran and his or her case manager may include
an independent instructor course in a rehabilitation plan, other than
one involving a farm cooperative program, only when either or both of
the following conditions exist:
(1) Training is not available through an established school, on-job
training establishment, rehabilitation facility or sheltered workshop
within a reasonable commuting distance from the veteran's home; or
(2) The veteran's condition or other circumstances do not permit the
veteran to attend an otherwise suitable facility within commuting
distance. See 21.126.
(c) Training in the home. Training in the home is a specialized type
of independent instructor course which the veteran pursues in his or her
home if:
(1) He or she is unable to pursue training at an otherwise suitable
facility because of the effects of his or her disability;
(2) Based on proper medical opinion, the veteran is able to pursue
the prescribed training; and
(3) The veteran's home provides a favorable educational environment
with adequate work and study space.
(d) Planning an individual instructor course. The case manager, the
veteran, and the instructor should jointly plan the training program for
a veteran for whom an independent instructor course is prescribed.
(e) Assuring employment. Since the customary channels leading to
employment may not be readily available to a veteran requiring an
individual instructor course, the IEAP (Individual Employment Assistance
Plan) shall indicate thorough consideration of plans and prospects for
seeking and obtaining employment, including self-employment, upon
completion of training.
(f) Rate of pursuit. A veteran in an independent instructor program
shall pursue training at a rate comparable to the rate at which similar
training is pursued on an institutional basis, unless the veteran's work
tolerance is reduced by the effects of his or her disability.
(Authority: 38 U.S.C. 3104(a)(7))
38 CFR 21.148 Tutorial assistance.
(a) General. A veteran may be provided individualized tutorial
assistance, if VA determines that special assistance beyond that
ordinarily given by the facility to students pursuing the same or a
similar subject is needed to correct a deficiency in a subject.
(b) Authorization of tutorial assistance. Tutorial assistance may be
provided during any period of rehabilitation services authorized by VA.
(Authority: 38 U.S.C. 3104(a)(7))
(c) Use of relatives precluded. Tutorial assistance at VA expense
may not be provided by a relative of the veteran. The term relative has
the same meaning as under 21.374 pertaining to the use of a relative as
an attendant.
(Authority: 38 U.S.C. 3492)
(d) Payment at the Chapter 30 rate. If a veteran has elected payment
at the educational assistance rate payable under Chapter 30, he or she
may not be provided individualized tutorial assistance under provision
of Chapter 31. (See 21.334.)
(Authority: 38 U.S.C. 3108(f); Pub. L. 98-525)
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4283, Jan. 30, 1989;
57 FR 57108, Dec. 3, 1992)
38 CFR 21.150 Reader service.
(a) Limitations on vision. A veteran considered to have a visual
impairment necessitating reader service includes a veteran:
(1) Whose best corrected vision is 20/200 in both eyes;
(2) Whose central vision is greater than 20/200 but whose field of
vision is limited to such an extent that the widest diameter of a visual
field subtends to an angle no greater than 20 degrees; or
(3) With impaired vision, whose condition or prognosis indicates that
the residual sight will be adversely affected by the use of his or her
eyes for reading.
(b) Periods during which reader service may be provided. reader
service necessary to the development of a rehabilitation plan, or the
successful pursuit of a rehabilitation program may be provided during:
(1) Initial evaluation or reevaluation;
(2) Extended evaluation;
(3) Rehabilitation to the point of employability;
(4) Independent living services; or
(5) Employment services, including an initial employment period of up
to three months.
(c) Reader responsibility. The reader should be able to do more than
read to the veteran. The reader should have an understanding of the
subject matter based upon prior training or experience which allows him
or her to:
(1) Read printed material with understanding; and
(2) Test the veteran's understanding of what has been read.
(d) Extent of service. The number of hours of service will be
determined in each case by the amount of reading necessitated by the
course and the efficacy of other equipment with which the veteran has
been furnished to enable him or her to read printed material unassisted.
(e) Recording. VA will not normally pay for recording textbooks or
other materials as a part of reader services, since excellent recording
services are provided by volunteer organizations at no cost.
(f) Selecting a relative as a reader. Utilization of a relative of
the veteran as a reader is subject to the limitations on use of a
relative as an attendant under 21.374.
(Authority: 38 U.S.C. 3104(a)(14))
38 CFR 21.152 Interpreter service for the hearing impaired.
(a) General. The main purpose of interpreter service for the hearing
impaired is to facilitate instructor-student communication. VA will
provide interpreter service as necessary for the development and pursuit
of a rehabilitation program. This service will be provided if:
(1) A VA physician determines that:
(i) The veteran is deaf or his or her hearing is severely impaired;
and
(ii) All appropriate services and aids have been furnished to improve
the veteran's residual hearing; or
(2) A VA physician determines that the veteran:
(i) Can benefit from language and speech training; and
(ii) Agrees to undertake language and speech training.
(b) Periods during which interpreter service may be provided.
Interpreter service may be furnished during:
(1) Initial evaluation or reevaluation;
(2) Extended evaluation;
(3) Rehabilitation to the point of employability;
(4) Independent living services; or
(5) Employment services, including the first three months of
employment.
(c) Selecting the interpreter. Only certified interpreters or
persons meeting generally accepted standards for interpreters shall
provide interpreter service. When an individual is not certified by a
State or professional association, VA shall seek the assistance of a
State certifying agency or a professional association in ascertaining
whether the individual is qualified to serve as an interpreter.
(Authority: 38 U.S.C. 3104(a)(14))
(d) Relatives. Interpreter service at VA expense may not be provided
by a relative of the veteran. The term relative has the same meaning as
under 21.374 pertaining to the use of relatives as attendants.
(Authority: 38 U.S.C. 3492)
38 CFR 21.154 Special transportation assistance.
(a) General. A veteran, who because of the effects of disability has
transportation expenses in addition to those incurred by persons not so
disabled, shall be provided a transportation allowance to defray such
additional expenses. The assistance provided in this section is in
addition to provisions for interregional and intraregional travel which
may be authorized under provisions of 21.370 through 21.376.
(Authority: 38 U.S.C. 3104(a)(13))
(b) Periods during which special transportation allowance may be
provided. A special transportation allowance may be provided during:
(1) Extended evaluation;
(2) Rehabilitation to the point of employability;
(3) Independent living services; or
(4) Employment services, including the first three months of
employment.
(Authority: 38 U.S.C. 3104(a)(14))
(c) Scope of transportation assistance. (1) Transportation
assistance includes mileage, parking fees, reasonable fee for a driver,
transportation furnished by a rehabilitation facility or sheltered
workshop, and other reasonable expenses which may be incurred in local
travel;
(2) The veteran's monthly transportation allowance may not exceed the
lesser of actual expenses incurred or one-half of the subsistence
allowance of a single veteran in full-time institutional training,
unless extraordinary arrangements, such as transportation by ambulance,
are necessary to enable a veteran to pursue a rehabilitation program.
(d) Determining the need for a transportation allowance. The case
manager will determine the need for a transportation allowance. The
assistance of a medical consultant shall be utilized, as necessary, to
determine the need for special transportation assistance and to develop
transportation arrangements which do not unduly tax the veteran's
ability to travel and pursue a rehabilitation program.
(e) Use of a relative precluded. A relative of the veteran may not
be paid any part of a special transportation allowance. The term
relative has the same meaning as under 21.374 pertaining to the use of
a relative as an attendant.
(Authority: 38 U.S.C. 3104(a)(13))
38 CFR 21.155 Services to a veteran's family.
(a) General. VA shall provide services to a veteran's family which
are necessary to the implementation of the veteran's rehabilitation
plan. The term family includes the veteran's immediate family, legal
guardian, or any individual in whose home the veteran certifies an
intention to live.
(b) Scope of services to a veteran's family. The services which may
be furnished to the family are generally limited to consultation,
homecare training, counseling, and mental health services of brief
duration which are designed to enable the family to cope with the
veteran's needs. Extended medical, psychiatric or other services may
not be furnished to family members under these provisions.
(c) Providing services to a veteran's family. VR&C Staff will:
(1) Identify services which family members may need to facilitate the
rehabilitation of the veteran; and
(2) Arrange for provision of the services which have been identified.
(d) Resources for provision of services to family members. (1) The
established program and services which are furnished by VHS&RA (Veterans
Health Services and Research Administration) to family members of
veterans eligible for Chapter 31 should be used to the extent
practicable; but
(2) If services are not readily available through regular VHS&RA
programs, necessary services will normally be secured through
arrangements with other public and nonprofit agencies.
(Authority: 38 U.S.C. 3104(a)(11))
38 CFR 21.156 Other incidental goods and services.
(a) General. Other incidental goods and services may be authorized
if the case manager determines them to be necessary to implement the
veteran's rehabilitation plan. For example, a calculator may be
authorized for a veteran pursuing an engineering degree, even though the
veteran may not be required to have a calculator for any specific
subject in his or her course, where there is substantial evidence that
lack of a calculator places the veteran at a distinct disadvantage in
successfully pursuing the course.
(b) Limitation on cost. The costs of incidental goods and services
normally should not exceed five percent of training costs for any
twelve-month period.
(Authority: 38 U.S.C. 3104(a)(10))
38 CFR 21.156 Independent Living Services
38 CFR 21.160 Independent living services.
(a) Purpose. The purpose of independent living services is to assist
eligible veterans whose ability to function independently in family,
community, or employment is so limited by the severity of disability
(service and nonservice-connected) that vocational or rehabilitation
services need to be appreciably more extensive than for less disabled
veterans.
(Authority: 38 U.S.C. 3101)
(b) Definitions. The term independence in daily living means the
ability of a veteran, without the services of others or with a reduced
level of the services of others, to live and function within the
veteran's family and community.
(Authority: 38 U.S.C. 3101(2))
(c) Situations under which independent living services may be
furnished. Independent living services may be furnished:
(1) As part of a program to achieve rehabilitation to the point of
employability;
(2) As part of an extended evaluation to determine the current
reasonable feasibility of achieving a vocational goal;
(3) Incidental to a program of employment services; or
(4) As a program of rehabilitation services for eligible veterans for
whom achievement of a vocational goal is not currently reasonably
feasible. This program of rehabilitation services may be furnished to
help the veteran:
(i) Function more independently in the family and community without
the assistance of others or a reduced level of the assistance of others;
(ii) Become reasonably feasible for a vocational rehabilitation
program; or
(iii) Become reasonably feasible for extended evaluation.
(Authority: 38 U.S.C. 3104(a)(15); Pub. L. 99-576)
(d) Services which may be authorized. The services which may be
authorized as part of an IILP (Individualized Independent Living Plan)
include:
(1) Any appropriate service which may be authorized for a vocational
rehabilitation program as that term is defined in 21.35(i), except for
a course of education or training as described in 21.120; and
(2) Independent living services offered by approved independent
living centers and programs which are determined to be necessary to
carry out the veteran's plan including:
(i) Evaluation of independent living potential;
(ii) Training in independent living skills;
(iii) Attendant care;
(iv) Health maintenance programs; and
(v) Identifying appropriate housing accommodations.
(Authority: 38 U.S.C. 3104(b))
(e) Coordination with other VA elements and other Federal, State, and
local programs. Implementation of programs of independent living
services and assistance will generally require extensive coordination
with other VA and non-VA programs. If appropriate arrangements cannot
be made to provide these services through VA, other governmental,
private nonprofit and for-profit agencies and facilities may be used to
secure necessary services if the requirements contained in 21.294 are
met.
(Authority: 38 U.S.C. 523, 3109, 3120, Pub. L. 100-689)
(49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50957, Dec. 19,
1988; 55 FR 42186, Oct. 18, 1990)
38 CFR 21.162 Participation in a program of independent living
services.
(a) Approval of a program of independent living services. A program
of independent living services and assistance is approved when:
(1) The VA determines that achievement of a vocational goal is not
currently reasonably feasible;
(2) The VA determines that the veteran's independence in daily living
can be improved, and the gains made can reasonably be expected to
continue following completion of the program;
(3) All steps required by 21.90 and 21.92 of this part for the
development and preparation of an Individualized Independent Living Plan
(IILP) have been completed; and
(4) The Vocational Rehabilitation and Education Officer concurs in
the IILP.
(Authority: 38 U.S.C. 3109, 3120, Pub. L. 99-576)
(b) Special considerations affecting the Director, Vocational
Rehabilitation and Education Service. The Director, Vocational
Rehabilitation and Education Service, shall consider the following
factors in administering the program of independent living services:
(1) If VA resources available limit the number of veterans who may be
provided a program of independent living services and assistance, the
first priority shall be given to veterans for whom the reasonable
feasibility of achieving a vocational goal is precluded solely as a
result of service-connected disability;
(2) To the maximum extent feasible, a substantial portion of veterans
provided with programs of independent living services and assistance
shall be receiving long-term care in VA medical centers and nursing
homes:
(3) The veterans provided programs of independent living and
assistance shall be from all geographic areas of the country; and
(4) If a veteran's independent living plan could be approved, but for
one of the other requirements of this section, the veterans shall have
priority over other veterans with the same or lower ratings for
service-connected disability applying during the following fiscal year.
(Authority: 38 U.S.C. 3120)
(49 FR 40814, Oct. 18, 1984, as amended at 53 FR 50957, Dec. 19,
1988; 55 FR 48842, Nov. 23, 1990)
38 CFR 21.162 Case Status
38 CFR 21.180 Case status system.
(a) General. Each veteran's case will be assigned to a specific case
status from the point of initial contact until all appropriate steps in
the rehabilitation process have been completed. The case status system
will:
(1) Assist VR&C staff to fulfill its case management responsibility
to provide authorized assistance to enable the veteran to successfully
pursue his or her program; and
(2) Assure program management and accountability.
(Authority: 38 U.S.C. 3107)
(b) Responsibility for change of case status. The case manager is
responsible for assigning a case to the appropriate case status at each
point in the rehabilitation process.
(c) Case manager. The VR&C (Vocational Rehabilitation and
Counseling) Officer or his or her designee will assign a case manager
when the veteran's case is placed in evaluation and planning status.
The VR&C Officer or his or her designee may assign case management
responsibility for development and implementation of a rehabilitation
plan authorized under Chapter 31 to a counseling psychologist or
vocational rehabilitation specialist in the VR&C Division. The case
manager assigned will, unless replaced by the VR&C Officer, continue to
be responsible for case management throughout the course of the
veteran's rehabilitation program. The VBA case manager should
coordinate efforts to secure necessary medical and other services with
Veterans Health Services and Research Administration (VHS&RA) staff
assigned case management responsibility at a VA medical center as
appropriate in the individual case.
(Authority: 38 U.S.C. 3106(e))
(d) Informing the veteran. The veteran will be informed in writing
of changes in case status by VA which affect his or her receipt of
benefits and services under Chapter 31. The letter to the veteran will
include the reason for the change of case status, and other information
required under provisions of 21.420.
(Authority: 38 U.S.C. 3107)
(e) Normal progression for eligible veterans. The cases of veterans
who are eligible for and entitled to services under Chapter 31 for whom
individualized plans have been prepared will generally undergo the
following changes of status:
(1) Individualized written rehabilitation plan. A veteran with an
IWRP (Individualized Written Rehabilitation Plan) will generally move
sequentially from applicant status through evaluation and planning
status, rehabilitation to the point of employability status, employment
services status, and rehabilitated status.
(2) Individualized extended evaluation plan. A veteran with an IEEP
(Individualized Extended Evaluation Plan) will generally move from
applicant status through evaluation and planning status to extended
evaluation status. Once in extended evaluation status there will
generally be a finding which leads to development of an IWRP (paragraph
(e)(1) of this section), or IILP (Individualized Independent Living
Plan) (paragraph (e)(3) of this section).
(3) Individualized independent living plan. A veteran with an IILP
(Individualized Independent Living Plan) will generally move from
applicant status through evaluation and planning, extended evaluation,
independent living, and rehabilitated status.
(4) Individualized employment assistance plan. (i) A veteran with an
IEAP (Individualized Employment Assistance Plan) which is a part of an
IWRP will move through the case statuses described in paragraph (e)(1)
of this section, or in some cases through the steps in paragraph (e)(2)
of this section.
(ii) A veteran for whom only employment services are provided will
generally move from applicant through evaluation and planning,
employment services to rehabilitated status.
(Authority: 38 U.S.C. 3107)
(f) Normal progression for ineligible veterans. A veteran found
ineligible for services under Chapter 31 will generally move from
applicant to evaluation and planning status, to ineligible status.
(Authority: 38 U.S.C. 3107)
(g) Changes of status. The case manager may change the case status
when:
(1) Conditions for change specified in the status are met;
(2) The change is not specifically precluded by the status to which
change is being considered; and
(3) The change is consistent with provisions of other applicable
regulations.
(Authority: 38 U.S.C. 3106)
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 34987, Aug. 23,
1989)
38 CFR 21.182 ''Applicant'' status.
(a) Purpose. The purposes of applicant status are to:
(1) Process a veteran's claim for assistance under Chapter 31 in a
timely manner; and
(2) Identify service-disabled veterans whom VA should contact
individually to increase their awareness and understanding of how they
may benefit from services furnished under Chapter 31.
(Authority: 38 U.S.C. 3102)
(b) Assignment to applicant status. VA will assign a veteran's
records to applicant status when either:
(1) VA receives a formal or informal application from a veteran for
services under Chapter 31; or
(2) The VR&C (Vocational Rehabilitation and Counseling) Division:
(i) Advises a veteran in writing of the veteran's potential
eligibility for Chapter 31 services, or
(ii) Is informed that the veteran has been advised in writing of his
or her potential eligibility for Chapter 31 services by other VA
elements.
(Authority: 38 U.S.C. 3102(2))
(c) Termination of applicant status. Applicant status will be
terminated when:
(1) An appointment for an initial evaluation has been kept by the
veteran; or
(2) The veteran's service-connected disability is reduced to a
noncompensable degree; or
(3) The veteran's service-connected disability is severed; or
(4) The veteran's application is invalid because of fraud or error;
or
(5) The veteran withdraws his or her claim, or otherwise indicates
that no further assistance is desired.
(Authority: 38 U.S.C. 3106)
(d) Transfer of terminated cases to discontinued status. Each
instance in which a veteran's case is terminated for reasons described
in paragraph (c)(4) or (5) of this section shall be placed in
discontinued status.
(Authority: 38 U.S.C. 3102)
(49 FR 40814, Oct. 18, 1984, as amended at 52 FR 2518, Jan. 23, 1987)
Cross-Reference: See 21.30 Claims, 21.31 Informal claims, and
21.32 Time limits.
38 CFR 21.184 ''Evaluation and planning'' status.
(a) Purpose. The purpose of evaluation and planning status is to
identify veterans for whom evaluation and planing services are needed
to:
(1) Accomplish an initial evaluation as provided in 21.50;
(2) Develop an IWRP (Individualized Written Rehabilitation Plan),
IEEP (Individualized Extended Evaluation Plan), IILP (Individualized
Independent Living Plan) or IEAP (Individualized Employment Assistance
Plan); or
(3) Reevaluate:
(i) Findings made in prior initial evaluations, or
(ii) Current or previous individualized rehabilitation plans.
(b) Assignment to evaluation and planning status. A veteran's
records will be assigned to evaluation and planning status for any of
the purposes specified in paragraph (a) of this section.
(c) Termination of evaluation and planning status. The assignment of
the veteran's records to evaluation and planning status may be
terminated under the following conditions:
(1) Evaluation and planning completed. The services necessary to
complete evaluation and planning have been provided. These services
are:
(i) Completion of an initial evaluation;
(ii) Development of an IWRP (Individualized Written Rehabilitation
Plan) or other individual rehabilitation plan in those cases in which
eligibility and entitlement to services provided under Chapter 31 are
established; or
(iii) Completion of reevaluation of prior findings made in initial
evaluation or modification of a rehabilitation plan.
(2) Evaluation and planning not completed. The VR&C Division shall
make every reasonable effort to enable the veteran to complete the
evaluation and planning phase of the rehabilitation process. A
determination that every reasonable effort by VA has been made, and that
little likelihood exists that continued efforts will lead to completion
of planning and evaluation, may be made under the following conditions:
(i) The veteran writes VA and requests that his or her case be
inactivated;
(ii) The veteran fails to keep scheduled appointments following his
or her initial appointment; or
(iii) The veteran otherwise fails to cooperate with VA in the
evaluation and planning process. If the veteran fails to cooperate, the
provisions of 21.362 are applicable.
(Authority: 38 U.S.C. 3106, 3107)
Cross-Reference: See 21.50 through 21.58 Initial and extended
evaluation, and 21.80 through 21.98 Individualized written
rehabilitation plan.
38 CFR 21.186 ''Ineligible'' status.
(a) Purpose. The purpose of ineligible status is to identify the
cases in which a veteran requests services under Chapter 31, but the
request is denied by VA, usually, on the basis of information developed
when the veteran was in evaluation and planning status.
(Authority: 38 U.S.C. 3106)
(b) Assignment to ineligible status. A veteran's case will be
assigned to ineligible status following a finding by VA that the veteran
is not eligible for or entitled to services under Chapter 31. The
finding must preclude all possible Chapter 31 services.
(Authority: 38 U.S.C. 3106, 3107)
(c) Termination of ineligible status. The assignment of the
veteran's case to ineligible status should be terminated if the veteran
thereafter becomes eligible to receive any Chapter 31 service.
Placement of the case in ineligible status is a bar to reconsideration
of eligibility unless a material change in circumstances occurs.
(Authority: 38 U.S.C. 3106)
38 CFR 21.188 ''Extended evaluation'' status.
(a) Purpose. The purposes of extended evaluation status are to:
(1) Identify a veteran for whom a period of extended evaluation is
needed; and
(2) Assure that necessary services are provided by VA during the
extended evaluation.
(Authority: 38 U.S.C. 3106)
(b) Assignment to extended evaluation status. A veteran's case may
be assigned or reassigned to extended evaluation status under provisions
of 21.57, 21.74, 21.86, 21.94, 21.96, or 21.98.
(Authority: 38 U.S.C. 3107)
(c) Continuation in extended evaluation status. A veteran's case
will be in extended evaluation status during periods in which:
(1) The veteran is pending induction into the facility at which
rehabilitation services will be provided;
(2) The veteran is receiving rehabilitation services prescribed in
the IEEP ( 21.86); or
(3) The veteran is on authorized leave of absence during an extended
evaluation.
(Authority: 38 U.S.C. 3108)
(d) Termination of extended evaluation status. A veteran in extended
evaluation status will remain in that status until one of the following
events occur:
(1) Following notification of necessary arrangements to begin an
extended evaluation, the date the extended evaluation begins, and
instructions as to the next steps to be taken, the veteran:
(i) Fails to report and does not respond to followup contact by the
case manager;
(ii) Declines or refuses to enter the program; or
(iii) Defers induction for a period exceeding 30 days beyond the
scheduled date of induction, except where the deferment is due to
illness or other sufficient reason;
(2) VA determines the reasonable feasibility of a vocational goal for
the veteran before completion of all of the planned evaluation because
the decision does not require the further evaluation;
(3) The veteran completes the extended evaluation;
(4) Either the veteran or VA interrupts the extended evaluation;
(5) Either the veteran or VA discontinues the extended evaluation;
or
(6) Service-connection for the veteran's service-connected disability
is severed by VA or his or her continued eligibility otherwise ceases.
(Authority: 38 U.S.C. 3106)
Cross-References: See 21.57 Extended evaluation, 21.322 Commencing
dates, 21.324 Reduction or termination.
38 CFR 21.190 ''Rehabilitation to the point of employability'' status.
(a) Purpose. The rehabilitation to the point of employability status
serves to:
(1) Identify veterans who receive training and rehabilitation
services to enable them to attain a vocational goal; and
(2) Assure that services specified in the veteran's IWRP are provided
in a timely manner by VA.
(Authority: 38 U.S.C. 3101)
(b) Assignment. A veteran's case may be assigned or reassigned to
rehabilitation to the point of employability status under the provisions
of 21.84, 21.94, 21.96, or 21.98.
(Authority: 38 U.S.C. 3107)
(c) Continuation in rehabilitation to the point of employability
status. A veteran will be assigned to rehabilitation to the point of
employability status during periods in which:
(1) The veteran has progressed through applicant status and
evaluation and planning status (including extended evaluation status
when appropriate), and is pending induction into the facility at which
training and rehabilitation services will be provided;
(2) The veteran is receiving training and rehabilitation services
prescribed in the IWRP; or
(3) The veteran is on authorized leave of absence.
(Authority: 38 U.S.C. 3104, 3108)
(d) Termination of rehabilitation to the point of employability
status when goals of the IWRP for this period are achieved. VA will
consider a veteran to have completed the period of rehabilitation to the
point of employability, and will terminate this status under the
following conditions:
(1) The veteran achieves the goals of, and has been provided services
specified in, the IWRP;
(2) The veteran who leaves the program has completed a sufficient
portion of the services prescribed in the IWRP to establish clearly that
he or she is generally employable as a trained worker in the
occupational objective established in the IWRP;
(3) The veteran, who has not completed all prescribed services in the
IWRP, accepts employment in the occupational objective established in
the IWRP with wages and other benefits commensurate with wages and
benefits received by trained workers; or
(4) The veteran:
(i) Satisfactorily completes a prescribed program, the practice of
which requires pursuing an examination for licensure, but
(ii) Is unable to take the licensure examination prior to the basic
twelve-year termination date and there is no basis for extension of that
date.
(Authority: 38 U.S.C. 3107)
(e) Other conditions for termination of rehabilitation to the point
of employability status. In addition to termination under conditions
described in paragraph (d) of this section, the classification of the
veteran's records in this status may be terminated under any of the
following conditions:
(1) A veteran who has been notified of necessary arrangements to
begin the program, the date the program begins and instructions as to
the next steps to be taken:
(i) Fails to report and does not respond to initial or subsequent
followup by the case manager;
(ii) Declines or refuses to enter the program; or
(iii) Defers induction for a period exceeding 30 days beyond the
scheduled beginning date of the program, except where the deferment is
due to illness or other sufficient reason.
(2) Either the veteran or VA interrupts the period of rehabilitation
to the point of employability;
(3) Either VA or the veteran discontinues the period of
rehabilitation to the point of employability;
(4) The veteran reaches his or her termination date, and there is no
basis for extension under 21.44;
(5) The veteran's entitlement to training and rehabilitation services
under Chapter 31 is exhausted, and there is no basis for extension under
21.78; or
(6) Service-connection for the veteran's service-connected disability
is served by VA or he or she otherwise ceases to be eligible.
(Authority: 38 U.S.C. 3107)
(f) Payment of employment adjustment allowance. An employment
adjustment allowance will be paid when the veteran's classification in
rehabilitation to the point of employability status is terminated under
provisions of paragraph (d) of this section. An employment adjustment
allowance will not be paid if termination is for one of the reasons
specified in paragraph (e) of this section.
(Authority: 38 U.S.C. 3108(a))
Cross-References: See 21.120 Educational and vocational trainings
services, 21.282 Effective date of induction into a rehabilitation
program, and 21.284 Reentering into a rehabilitation program.
38 CFR 21.192 ''Independent living program'' status.
(a) Purpose. The independent living program status serves to:
(1) Identify veterans who are being furnished a program of
independent living services by VA; and
(2) Assure that such veterans receive necessary services from VA in a
timely manner.
(b) Assignment to independent living program status. A veteran may
be assigned or reassigned to independent living program status under the
provisions of 21.88, 21.94, 21.96, or 21.98.
(Authority: 38 U.S.C. 3107)
(c) Continuation in independent living program status. A veteran
will be in independent living program status during periods in which:
(1) The provisions of 21.282 for induction into a program are met,
but the veteran is pending induction into the facility at which
rehabilitation services will be provided;
(2) The veteran receives rehabilitation services prescribed in an
IILP; or
(3) The veteran is on authorized leave of absence status.
(Authority: 38 U.S.C. 3109, 3120)
(d) Termination of independent living program status. When a
veteran's case has been assigned to independent living program status,
the case will be terminated from that status, if one of the following
occurs:
(1) A veteran, who has been notified of necessary arrangements to
begin a program, the date the program begins and instructions as to the
next steps to be taken:
(i) Fails to report and does not respond to followup contact by the
case manager;
(ii) Declines or refuses to enter the program; or
(iii) Defers entry for more than 30 days beyond the scheduled
beginning date, unless the deferment is due to illness or other
sufficient reason.
(2) The veteran completes the IILP;
(3) Either the veteran or VA interrupts the program;
(4) Either the veteran or VA discontinues the program; or
(5) Service-connection for the veteran's service-connected disability
is severed by VA or he or she otherwise ceases to be eligible.
(Authority: 38 U.S.C. 3109, 3110)
Cross-References: See 21.160 Independent living services, 21.282
Effective date of induction into a rehabilitation program, 21.322
Commencing date, and 21.324 Reduction or termination date.
38 CFR 21.194 ''Employment services'' status.
(a) Purpose. The status employment services serves to:
(1) Identify veterans who are being furnished employment services;
and
(2) Assure that these veterans receive necessary services in a timely
manner.
(b) Assignment to employment services status. A veteran's case may
be assigned or reassigned to employment services status under the
provisions of 21.84, 21.88, 21.94 and 21.98.
(c) Continuation in employment services status. A case will remain
in employment services status for the period specified in the IEAP,
subject to the limitations specified in paragraph (d) of this section.
(d) Termination of employment services status. The veteran will
continue in employment services status until the earliest of the
following events occurs:
(1) He or she is:
(i) Employed in the occupational objective for which training was
provided or in a closely related objective for sixty days, and
(ii) Adjusted to the duties and responsibilities of the job;
(2) He or she qualifies for placement in rehabilitation status under
the provisions of 21.196(b)(2);
(3) Either the veteran or VA interrupts the employment services
program;
(4) Either the veteran or VA discontinues the employment services
program;
(5) He or she reaches the end of the period for which employment
services have been authorized and there is no basis for extension; or
(6) Service-connection for the veteran's service-connected disability
is severed or he or she otherwise ceases to be eligible.
(Authority: 38 U.S.C. 3117)
Cross-References: See 21.47 Eligibility for employment assistance,
21.250 Overview of employment services, and 21.326 Authorization of
employment services.
38 CFR 21.196 ''Rehabilitated'' status.
(a) Purpose. The purpose of rehabilitated status is to identify
those cases in which the goals of a rehabilitation program or a program
of employment services have been substantially achieved.
(b) Assignment to rehabilitated status. A veteran's case shall be
assigned to rehabilitated status under the following conditions:
(1) Achieving and maintaining suitable employment. A veteran's case
shall be assigned to rehabilitated status from employment services
status as provided in 21.194(d)(1) pertaining to the achievement and
maintenance of suitable employment, following attainment of the goals of
a plan. This includes:
(i) An IEAP (Individualized Employment Assistance Plan) which is part
of an IWRP (Individualized Written Rehabilitation Plan); or
(ii) An IEAP which constitutes the program of services to be provided
under Chapter 31.
(2) Rehabilitation to the point of employability not completed. A
veteran who has not completed the planned period of rehabilitation to
the point of employability shall be assigned to rehabilitated status if
he or she:
(i) Is employed and adjusted in employment for 60 days in the
occupational objective established in the IWRP, with wages and benefits
commensurate with wages and other benefits received by other workers in
the same occupation; or
(ii) Is employed and adjusted in employment for 60 days in a job
other than the one prescribed by the IWRP Panel which provides wages and
benefits commensurate with the wages and benefits of workers in the
occupation for which the veteran was training, is compatible with the
limiting effects of the veteran's service and nonservice-connected
disabilities, and otherwise consistent with the veteran's abilities and
interests.
(3) IEAP not completed. A veteran in an IEAP which constitutes the
whole of the veteran's program of services will be assigned to
rehabilitated status from employment services status, even if the IEAP
is not completed when:
(i) He or she is employed and adjusted in employment for 60 days in
an occupation which provides wages and benefits commensurate with the
wages and benefits received by workers in the occupational objective of
the IEAP, and
(ii) The occupation in which the veteran is employed is compatible
with the limiting effects of the veteran's service and
nonservice-connected disabilities and otherwise consistent with the
veteran's abilities and interests.
(4) Independent living services plan. A veteran in an IILP shall be
considered rehabilitated when;
(i) The goal(s) of the IILP is (are) achieved, and
(ii) The veteran has maintained the increased level of independence
for sixty days; or
(iii) The veteran has not achieved the goals of the IILP, but VA
determines that the veteran has received maximum benefits from the
services provided, and has achieved a substantial increase in the level
of independence.
(Authority: 38 U.S.C. 3107, 3117)
(c) Termination of rehabilitated status. A veteran's case will not
be removed from rehabilitated status under 21.284 once that status has
been assigned, unless the determination of rehabilitation is set aside
for a reason specified in 21.284.
(Authority: 38 U.S.C. 3100)
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985)
Cross-Reference: See 21.284 Reentrance into a rehabilitation
program.
38 CFR 21.197 ''Interrupted'' status.
(a) Purpose. The purpose of interrupted status is to recognize that
a variety of situations may arise in the course of a rehabilitation
program in which a temporary suspension of the program is warranted. In
each case, VA first must determine that the veteran will be able to
return to a rehabilitation program or a program of employment services
following the resolution of the situation causing the interruption.
This determination will be documented in the veteran's record.
(Authority: 38 U.S.C. 3117)
(b) Assignment to ''interrupted'' status. A veteran's case will be
assigned to interrupted status when:
(1) VA determines that a suspension of services being provided is
necessary; and
(2) Either:
(i) A definite date for resumption of the program is established; or
(ii) The evidence indicates the veteran will be able to resume the
program at some future date, which can be approximately established.
(Authority: 38 U.S.C. 3110)
(c) Reasons for assignment to ''interrupted'' status. A veteran's
case may be interrupted and assigned to interrupted status for reasons
including but not limited to the following:
(1) Veteran does not initiate or continue rehabilitation process. If
a veteran does not begin or continue the rehabilitation process, the
veteran's case will be interrupted and assigned to interrupted status,
including:
(i) A case in evaluation and planning status;
(ii) A case in extended evaluation status;
(iii) A case in rehabilitation to the point of employability status;
(iv) A case in independent living program status; or
(v) A case in employment services status.
(2) Unsatisfactory conduct and cooperation. If a veteran's conduct
or cooperation becomes unsatisfactory, services and assistance may be
interrupted as determined under provisions of 21.362 and 21.364.
(3) Services not available. The veteran cannot continue the program
because the necessary training and rehabilitation services are
unavailable.
(4) Prior to assignment to ''discontinued'' status. A veteran's case
shall be assigned to interrupted status prior to discontinuance and
assignment to discontinued status in all cases except as provided in
21.182(d) and upon the veteran's death. The purpose of assignment to
interrupted status is to assure that all appropriate actions have been
taken to help the veteran continue in his or her program before
discontinuing benefits and services.
(5) Absences. The veteran is not entitled to be placed on authorized
absence under 21.340 through 21.350 while in interrupted status.
(Authority: 38 U.S.C. 3111)
(d) Reentrance from ''interrupted'' status. (1) A veteran in
interrupted status may be assigned to his or her prior status or other
appropriate status, if he or she reports for entrance or reentrance into
the prescribed program at the time and place scheduled for the
resumption of the rehabilitation program.
(2) If a veteran in interrupted status fails to report for entrance
or reentrance into the program at the appointed time and place, the
veteran's case will remain in interrupted status. The case manager will
then determine whether there is a satisfactory reason for the veteran's
failure to enter a new or reenter the prior program. If the evidence of
record does not establish a satisfactory reason, the veteran's case will
be discontinued and assigned to discontinued status.
(e) Case management responsibility during a period of interruption.
The case manager shall maintain contact with the veteran during
interruption and shall arrange for appropriate medical or other services
the veteran needs to be able to enter or reenter a rehabilitation
program or a program of employment services.
(Authority: 38 U.S.C. 3107)
(49 FR 40814, Oct. 18, 1984, as amended at 52 FR 2518, Jan. 23, 1987)
Cross-Reference: See 21.324 Reduction or termination date.
38 CFR 21.198 ''Discontinued'' status.
(a) Purpose. The purpose of discontinued status is to identify
situations in which termination of all services and benefits received
under Chapter 31 is necessary.
(b) Placement in ''discontinued''. VA will discontinue the veteran's
case and assign the case to discontinued status following assignment to
interrupted status as provided in 21.197 for reasons including but not
limited to the following:
(1) Veteran declines to initiate or continue rehabilitation process.
If a veteran does not initiate or continue the rehabilitation process
and does not furnish an acceptable reason for his or her failure to do
so following assignment to interrupted status, the veteran's case will
be discontinued and assigned to discontinued status. This includes:
(i) A case in applicant status;
(ii) A case in evaluation and planning status;
(iii) A case in extended evaluation status;
(iv) A case in rehabilitation to the point of employability status;
(v) A case in independent living program status;
(vi) A case in employment services status; or
(vii) A case in interrupted status;
(2) Unsatisfactory conduct and cooperation. When a veteran's conduct
or cooperation becomes unsatisfactory, services and assistance may be
discontinued and assigned to discontinued status as determined under
provisions of 21.362 and 21.364.
(3) Eligibility and entitlement. Unless the veteran desires
employment assistance, the veteran's case will be discontinued and
assigned to discontinued status when:
(i) The veteran reaches the basic twelve-year termination date, and
there is no basis for extension; or
(ii) The veteran has used 48 months of entitlement under one or more
VA programs, and there is no basis for extension of entitlement.
(4) Medical and related problems. A veteran's case will be
discontinued and assigned to discontinued status when:
(i) The veteran will be unable to participate in a rehabilitation
program because of a serious physical or emotional problem for an
extended period; and
(ii) VA medical staff are unable to estimate an approximate date by
which the veteran will be able to begin or return to the program.
(5) Withdrawal. Veteran voluntarily withdraws from the program.
(6) Failure to progress. The veteran's case will be discontinued and
assigned to discontinued status if his or her failure to progress in a
program is due to:
(i) Continuing lack of application by the veteran unrelated to any
personal or other problems; or
(ii) Inability of the veteran to benefit from rehabilitation services
despite the best efforts of VA and the veteran.
(Authority: 38 U.S.C. 3108, 3111)
(7) Special review of proposed discontinuance action. The Vocational
Rehabilitation and Counseling (VR&C) Officer shall review each case in
which discontinuance is being considered for a veteran with a
service-connected disability rated 50 percent or more disabling. The
VR&C Officer may utilize exisitng resources to assist in the review,
including referral to the Vocational Rehabilitation Panel (VRP).
(Authority: 38 U.S.C. 3104(a)(1))
(c) Termination of ''discontinued'' status. Except as noted in
paragraph (c)(3) of this section assignment of the veteran's case to the
same status from which the veteran was discontinued or to a different
one requires that VA first find:
(1) The reason for the discontinuance has been removed; and
(2) VA has redetermined his or her eligibility and entitlement under
Chapter 31.
(3) In addition to the criteria described in paragraphs (c) (1) and
(2) of this section a veteran placed into discontinued status as a
result of a finding of unsatisfactory conduct or cooperation under
21.362 and 21.364 must also meet the requirements for reentrance into a
rehabilitation program found in 21.364.
(Authority: 38 U.S.C. 3111)
(d) Follow-up of a cases placed in ''discontinued'' status. VA shall
establish appropriate procedures to follow up on cases which have been
placed in discontinued status, except in those cases reassigned from
applicant status. The purpose of such followup is to determine if:
(1) The reasons for discontinuance may have been removed, and
reconsideration of eligibility and entitlement is possible; or
(2) The veteran is employed, and criteria for assignment to
rehabilitated status are met.
(Authority: 38 U.S.C. 3107)
(49 FR 40814, Oct. 18, 1984, as amended at 52 FR 2518, Jan. 23, 1987;
53 FR 32620, Aug. 26, 1988)
Cross-Reference: See 21.324 Reduction or termination dates of
subsistence allowance.
38 CFR 21.198 Supplies
38 CFR 21.210 Supplies.
(a) Purpose of furnishing supplies. Supplies are furnished to enable
a veteran to pursue rehabilitation and achieve the goals of his or her
program.
(b) Definition. The term supplies includes books, tools, and other
supplies and equipment which VA determines are necessary for the
veteran's rehabilitation program.
(c) Periods during which supplies may be furnished. Supplies may be
furnished during:
(1) Extended evaluation;
(2) Rehabilitation to the point of employability;
(3) Employment services; and
(4) An independent living services program.
(Authority: 38 U.S.C. 3104(a))
(d) Supplies precluded. Notwithstanding the provisions of paragraph
(c) of this section, supplies may not be furnished to a veteran who has
elected, or is in receipt of, payment at the educational assistance rate
paid under Chapter 34.
(Authority: 38 U.S.C. 3108(a))
38 CFR 21.212 General policy in furnishing supplies during periods of
rehabilitation.
(a) Furnishing necessary supplies during a period of rehabilitation
services. A veteran will be furnished supplies that are necessary for a
program of rehabilitation services. For example, a veteran training in
a school will be furnished the supplies needed to pursue the school
course. If additional supplies are subsequently needed to secure
employment, they will be furnished during the period of employment
services as provided in 21.214(d).
(b) Determining supplies needed during a period of rehabilitation.
Subject to the provisions of 21.210 through 21.222, VA will authorize
only those supplies which are required:
(1) To be used by similarly circumstanced non-disabled persons in the
same training or employment situation;
(2) To mitigate or compensate for the effects of the veteran's
disability while he or she is being evaluated, trained or assisted in
gaining employment; or
(3) To allow the veteran to function more independently and thereby
lessen his or her dependence on others for assistance.
(c) When supplies may be authorized. Supplies should generally be
authorized subsequent to the date of enrollment in training or beginning
date of other rehabilitation services unless there are compelling
reasons to authorize them earlier. Supplies may not be authorized
earlier than the date the veteran's rehabilitation plan is approved by
VA and the veteran is accepted by the facility or individual providing
services.
(d) Supplies needed, but not specifically required. VA may determine
that an item, such as a calculator, while not required by the school for
the pursuit of a particular school subject, is nevertheless necessary
for the veteran to successfully pursue his or her program under the
provisions of 21.156 pertaining to incidental goods and services. The
item may be authorized if:
(1) It is generally owned and used by students pursuing the course;
and
(2) Students who do not have the item would be placed at a distinct
disadvantage in pursuing the course.
(e) Supplies for special projects and theses. The amount of supplies
that VA may authorize for special projects, including theses, may not
exceed the amount generally needed by similarly circumstanced
nonveterans in meeting course or thesis requirements.
(Authority: 38 U.S.C. 3104(a))
(f) Responsibility for authorization of supplies. The case manager
is responsible for the authorization of supplies, subject to
requirements for prior approval contained in 21.258 and other
instructions governing payment of program charges.
(Authority: 38 U.S.C. 3106(e))
38 CFR 21.214 Furnishing supplies for special programs.
(a) General. A veteran pursuing one of the following types of
vocational rehabilitation programs is eligible for any types of supplies
listed in 21.212. The following paragraphs clarify the applicability of
the general provisions of 21.212 to these special situations.
(b) Supplies furnished to veterans pursuing training in the home. VA
may furnish to veterans training in the home:
(1) Books, tools, and supplies which schools or training
establishments that train individuals outside the home for the objective
the veteran is pursuing at home ordinarily require all students and
trainees to personally possess;
(2) Supplies and equipment which are essential to the prescribed
course of training because the veteran is pursuing the course at home.
Equipment in this category consists of items which ordinarily are not
required by a school or training establishment;
(3) Special equipment, such as a vise or drafting table;
(4) Supplies needed to enable the veteran to function more
independently in his or her home and community.
(Authority: 38 U.S.C. 3104(a))
(c) Supplies furnished to a veteran in farm cooperative training.
The books and related training supplies which VA may furnish a veteran
in farm cooperative training depend upon the type of instruction he or
she is receiving:
(1) When organized, group instruction is part of a veteran's course,
VA will furnish those books and supplies which the school requires all
students in the school portion of the course to own personally or on a
rental basis;
(2) When all instruction is given on the veteran's farm by an
individual instructor, VA will furnish to a student only those textbooks
and other supplies which would ordinarily be required by a school.
(Authority: 38 U.S.C. 3104(a)(7))
(d) Obtaining and maintaining employment. A veteran being furnished
employment services may receive supplies which:
(1) The employer requires similarly circumstanced nonveterans to own
upon begining employment to the extent that the items were not furnished
during the period in which the veteran was training for the objective,
or the items that were furnished for training purposes are not adequate
for employment;
(2) VA determines that special equipment is necessary for the veteran
to perform his or her duties, subject to the obligation of the employer
to make reasonable accommodation to the disabling effects of the
veteran's condition.
(Authority: 38 U.S.C. 3104(a), 4212)
(e) Self-employment. The supplies and services which may be
furnished, subject to the requirements prescribed under 21.258, to a
veteran for whom self-employment has been approved as the occupational
objective, are generally limited to those necessary to begin operations:
(1) Minimum stocks of materials, e.g., inventory of saleable
merchandise or goods, expendable items required for day-to-day
operations, and items which are consumed on the premises;
(2) Essential equipment, including machinery, occupational fixtures,
accessories, and appliances; and
(3) Other incidental services such as business license fees.
(Authority: 38 U.S.C. 3104(a)(2))
(f) Supplies and related assistance which may not be furnished for
self-employment. VA may not authorize assistance for:
(1) Purchase of, or part payment for, land and buildings;
(2) Making full or part payment of leases or rentals;
(3) Purchase or rentals of trucks, cars, or other means of
transportation;
(4) Stocking a farm for animal husbandry operations.
(Authority: 38 U.S.C. 3104(a)(12))
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985)
38 CFR 21.216 Special equipment.
(a) General. Special equipment should be authorized as necessary to
enable a veteran to mitigate or overcome the effects of disability in
pursuing a rehabilitation program. The major types of special equipment
which may be authorized include:
(1) Equipment for educational or vocational purposes. This category
includes items which are ordinarily used by nondisabled persons pursuing
evaluation or training, modified to allow for use by disabled persons.
e.g., calculators with speech capability for blinded persons.
(2) Sensory aids and prostheses. This category includes items which
are specifically designed to mitigate or overcome the effects of
disability. They range from eyeglasses and hearing aids to
closed-circuit TV systems which amplify reading material for veterans
with severe visual impairments.
(3) Modifications to improve access. This category includes
adaptations of environment not generally associated with education and
training, such as adaptive equipment for automobiles or supplies
necessary to modify a veteran's home to make either training or
self-employment possible.
(Authority: 38 U.S.C. 3104(a))
(b) Coordination with other VA elements in securing special
equipment. In any case in which the veteran needs special equipment and
is eligible for such equipment under other VA programs, such as medical
care and treatment at VA medical centers, the items will be secured
under that program. The veteran must be found ineligible for needed
special equipment under other programs and benefits administered by VA
before the item may be authorized under Chapter 31.
(Authority: 38 U.S.C. 3115)
38 CFR 21.218 Methods of furnishing supplies.
(a) Supplies furnished by the school or facility. VA will make
arrangements for the school or other facility furnishing a veteran
training, rehabilitation assistance, or employment under Chapter 31 to
provide supplies to the extent practicable. This method is the one most
likely to assure that supplies are available and can be secured
expeditiously. A facility may be considered to be furnishing supplies
when the facility itself is the supplier, or the facility has designated
a supplier. Prior authorization of supplies by the case manager is
required, except for standard sets of books, tools, or supplies which
the facility requires all trainees or employees to have.
(b) Issuance of supplies not furnished by the facility. VA will
issue authorized supplies directly to the veteran, if the supplies are
not furnished by the facility providing training, rehabilitation
services, or employment.
(Authority: 38 U.S.C. 3104(a))
Cross-Reference: See 48 CFR part 831. Contract cost principles and
procedures.
38 CFR 21.219 Supplies consisting of clothing, magazines and
periodicals, and items which may be personally used by the veteran.
(a) Furnishing protective articles and clothing. Protective articles
or apparel worn in place of ordinary clothing will be furnished at VA
expense, when the school or training establishment requires similarly
circumstanced nonveterans to use the articles of apparel. No other
clothing will be supplied.
(b) Furnishing magazines and periodicals. Appropriate past issues of
magazines, periodicals, or reprints may be furnished in the same manner
as text material, when relevant to the course or training.
(c) Furnishing items which may be personally used. Musical
instruments, cameras, or other items which could be used personally by
the veteran may only be furnished if required by the facility to meet
requirements for degree or course completion.
(Authority: 38 U.S.C. 3104(a)(7))
38 CFR 21.220 Replacement of supplies.
(a) Lost, stolen, misplaced or damaged supples. VA will replace
articles which are necessary to further pursuit of the veteran's program
and which are lost, stolen, misplaced, or damaged beyond repair through
no fault of the veteran;
(1) VA will make an advancement from the Vocational Rehabilitation
Revolving Fund to a veteran to replace articles for which VA will not
pay, if the veteran is without funds to pay for them;
(2) If a veteran refuses to replace an article indispensable to the
program after VA determines that its loss or damage was his or her
fault, the veteran's refusal may be considered as noncooperation under
21.364;
(3) If the veteran's program is discontinued under provisions of
21.364(b), he or she will be reentered into the program only when he or
she replaces the necessary articles.
(Authority: 38 U.S.C. 3104(a))
(b) Personally purchased supplies. VA will not generally reimburse a
veteran who personally buys supplies. VA may pay for the required
supplies which a training facility or other vendor sells to a veteran,
if the facility chooses to return to the veteran the amounts he or she
paid, so that the charges stand as an unpaid obligation of VA to the
facility. If the facility does not agree to such an arrangement, VA may
still pay the veteran, if the facts and equities of the case are
demonstrated.
(Authority: 38 U.S.C. 3115)
(c) Supplies used in more than one part of the program. Except as
provided in paragraph (a) of this section, VA will generally furnish any
nonconsumable supplies only one time, even though the same supplies may
be required for use by the veteran in another subject or in another
quarter, semester, or school year.
(Authority: 38 U.S.C. 3104(a)(7))
38 CFR 21.222 Release of, and repayment for, training and
rehabilitation supplies.
The value of supplies authorized by VA will be repaid under the
provisions of this section, when the veteran fails to complete the
program as planned.
(a) Consumable supplies. VA will require reimbursement from a
veteran for consumable supplies authorized, unless:
(1) The veteran fails to complete the rehabilitation program through
no fault of his or her own;
(2) The employment objective of the rehabilitation plan is changed as
a result of reevaluation by VA staff;
(3) The total value of the supplies for which repayment is required
is less than $100; or
(4) The veteran dies.
(Authority: 38 U.S.C. 3104)
(b) Nonconsumable supplies (general). (1) In addition to the
exceptions noted in paragraph (c) of this section, VA will not require
reimbursement from a veteran for nonconsumable supplies authorized, if:
(i) The veteran and VA change the long-range goal of the
rehabilitation plan and those supplies are not required for the
veteran's pursuit of training for the new goal;
(ii) The veteran's failure to complete the program was not his or her
fault;
(iii) The veteran was pursuing the program at a facility which
recovers nonconsumable supplies from veterans through contractural
arrangements with VA, and the veteran returned to the facility all the
nonconsumable supplies furnished at VA expense;
(iv) The veteran reenters the Armed Forces or is in the process of
reentering the Armed Forces;
(v) The veteran satisfactorily completed one-half or more of a
noncollege degree course (or at least two terms in the case of a college
course) for which VA furnished the supplies;
(vi) The veteran certifies that he or she is using in current
employment the supplies furnished during training;
(vii) The total value of the supplies for which repayment is required
is less than $100;
(viii) The veteran dies;
(ix) The veteran is furnished supplies during a period of employment
services but loses the job through no fault of his or her own;
(x) A veteran discontinued from an independent living services
program is using supplies and equipment to reduce his or her dependence
on others; or
(xi) The veteran is declared rehabilitated.
(2) The amount which a veteran must repay will be the lesser of the
current value of the supplies, or the original cost of the supplies. VA
will accept supplies in lieu of repayment of the value of the supplies
if VA has authorized a change of objective.
(Authority: 38 U.S.C. 3104(a))
(c) Training in the home and self-employment. In addition to the
reasons for not requiring repayment or return of nonconsumable supplies
listed in paragraph (b) of this section, VA will not require a veteran
to pay for or return nonconsumable supplies if: (1) In the case of a
veteran training in the home:
(i) VA furnished such supplies to equip his or her home as a place of
training; and
(ii) The veteran has completed enough of his or her training program
to be considered employable, and has been declared rehabilitated to the
point of employability;
(2) A veteran in a self-employment program not in the home is
declared rehabilitated; or
(3) The veteran dies and the Director, VR&E Service determines that
the facts and equities of the family situation warrant waiver of all or
a part of the requirements for repayment.
(Authority: 38 U.S.C. 3104(a)(12))
38 CFR 21.224 Prevention of abuse.
Supplies are to be furnished under the most careful checks by the
case manager as to what is needed by the veteran to pursue his or her
program. Determinations of the supplies needed to enable the veteran to
successfully pursue his or her rehabilitation program are made under the
provisions of 21.210 through 21.222.
(Authority: 38 U.S.C 3104, 3111)
38 CFR 21.224 Medical and Related Services
38 CFR 21.240 Medical treatment, care and services.
(a) General. A Chapter 31 participant shall be furnished medical
treatment, care and services which VA determines are necessary to
develop, carry out and complete the veteran's rehabilitation plan. The
provision of such services is a part of the veteran's entitlement to
benefits and services under Chapter 31, and is limited to the period or
periods in which the veteran is a Chapter 31 participant.
(Authority: 38 U.S.C. 3104, 3107)
(b) Scope of services. The services which may be furnished under
Chapter 31 include the treatment, care and services described in part 17
of this title. In addition the following services may be authorized
under Chapter 31 even if not included or described in part 17:
(1) Prosthetic appliances, eyeglasses, and other corrective or
assistive devices;
(2) Services to a veteran's family as necessary for the effective
rehabilitation of the veteran;
(3) Special services (including services related to blindness and
deafness) including:
(i) Language training; speech and voice correction, training in
ambulation, and one-hand typewriting;
(ii) Orientation, adjustment, mobility and related services;
(iii) Telecommunications, sensory and other technical aids and
devices.
(c) Eligibility. A veteran is eligible for the services described in
paragraph (b) of this section during periods in which he or she is
considered a Chapter 31 participant. These periods include:
(1) Initial evaluation;
(2) Extended evaluation;
(3) Rehabilitation to the point of employability;
(4) Independent living services program;
(5) Employment services; and
(6) Other periods to the extent that services are needed to begin or
continue in any of the statutes described in paragraphs (c)(1) through
(5) of this section. Such periods include but are not limited to
services needed to facilitate reentry into rehabilitation following:
(i) Interruption; or
(ii) Discontinuance because of illness or injury.
(Authority: 38 U.S.C. 3104)
Cross-Reference: See 17.48(g). Participating in a rehabilitation
program under Chapter 31.
38 CFR 21.242 Resources for provision of treatment, care and services.
(a) General. VA medical centers are the primary resources for the
provision of medical treatment, care and services for Chapter 31
participants which may be authorized under the provisions of 21.240.
The availability of necessary services in VA facilities shall be
ascertained in each case.
(Authority: 38 U.S.C. 3115)
(b) Hospital care and medical service. Hospital care and medical
services provided under Chapter 31 shall only be furnished in facilities
over which VA has direct jurisdiction, except as authorized on a
contract or fee basis under the provisions of part 17 of this title.
(Authority: 38 U.S.C. 3115(b))
Cross-References: See 17.30(l). Hospital care. 17.30(m) Medical
services.
38 CFR 21.242 Employment Services
38 CFR 21.250 Overview of employment services.
(a) General. Employment services shall be provided if:
(1) Eligibility for employment services exists;
(2) The employment services which are needed have been identified;
and
(3) The services which have been identified are incorporated in the
veteran's IWRP (Individualized Written Rehabilitation Plan) or IEAP
(Individualized Employment Assistance Plan).
(Authority: 38 U.S.C. 3107, 3117)
(b) Definitions. (1) The term program (period) of employment
services includes the counseling, medical, social, and other placement
and postplacement services provided to a veteran under 38 U.S.C.
Chapter 31 to assist the veteran in obtaining or maintaining suitable
employment. The term program of employment services is used only if the
veteran's eligibility under Chapter 31 is limited to employment
services.
(2) The term job development means a comprehensive professional
service to assist the individual veteran to actually obtain a suitable
job, and not simply the solicitation of jobs on behalf of the veteran.
Continuing and mutually beneficial relationships with employers should
be established by VA staff through referral of suitable employees and
supportive services (e.g., adjustment counseling and job modification).
Job development activities by VA staff are intended to provide disabled
workers with a chance for suitable employment with cooperating
employers.
(3) The term employable means the veteran is able to secure and
maintain employment in the competitive labor market or in a sheltered
workshop or other special situation at the minimum wage.
(Authority: 38 U.S.C. 3101, 3106, 3116, 3117)
(c) Determining eligibility for, and the extent of, employment
services.
(1) A veteran's eligibility for employment services shall be
determined under the provisions of 21.47;
(2) The duration of the period of employment services is determined
under provisions of 21.73;
(3) An IEAP (Individualized Employment Assistance Plan) shall be
prepared under provisions of 21.88;
(4) A veteran shall be placed in and removed from ''Employment
Assistance Status'' under provisions of 21.194.
(Authority: 38 U.S.C. 3101, 3117)
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended
at 54 FR 21216, May 17, 1989)
38 CFR 21.252 Job development and placement services.
(a) General. Job development and placement services may include:
(1) Direct placement assistance by VA;
(2) Utilization of the job development and placement services of:
(i) DVOP (Disabled Veterans Outreach Program) specialists;
(ii) Programs authorized under the Rehabilitation Act of 1973, as
amended;
(iii) The State Employment Services and the Veterans Employment
Service of the Department of Labor;
(iv) The Office of Personnel Management; and
(v) The services of any other public, or nonprofit organization
having placement services available; and
(vi) Any for-profit agency in a case in which it has been determined
that comparable services are not available through public and nonprofit
agencies and comparable services cannot be provided cost-effectively by
the public and nonprofit agencies listed in this paragraph.
(Authority: 38 U.S.C. 3117(a)(2), Pub. L. 100-689)
(b) Promotion of employment and training opportunities. As funding
permits, VA employees engaged in the administration of Chapter 31 will
promote the establishment of employment, training, and related
opportunities to accomplish the purposes described in 21.1.
(Authority: 38 U.S.C. 3101)
(c) Advocacy responsibility. VA shall take reasonable steps to
ensure that a veteran being provided employment services receives the
benefit of any applicable provision of law or regulation providing for
special consideration or emphasis or preference of the veteran in
employment or training, especially programs and activities identified in
the preceding paragraphs of this section.
(Authority: 38 U.S.C. 523)
(d) Interagency coordination. VA employees providing assistance to
Chapter 31 participants shall coordinate their job development,
placement, promotional, and advocacy activities with similar or related
activities of:
(1) The Department of Labor and State employment security agencies as
provided by written agreement or other arrangement;
(2) The State approving agencies:
(3) Other public, for-profit and nonprofit agencies providing
employment and related services.
(Authority: 38 U.S.C. 3116, 3117, Pub. L. 100-689)
(49 FR 40814, Oct. 18, 1984, as amended at 55 FR 42187, Oct. 18,
1990)
38 CFR 21.254 Supportive services.
(a) General. Supportive services which may be provided during a
period or program of employment services include a broad range of
medical treatment, care and services, supplies, license and other fees,
special services, including services to the blind and deaf,
transportation assistance, services to the veteran's family, and other
appropriate services, subject to the limitations provided in VA
regulations governing the provisions of these services under Chapter 31.
(b) Exclusions. The following benefits may not be provided to the
veteran by VA during a period or program of employment services:
(1) Subsistence allowance, or payment of an allowance at the
educational assistance rate paid under Chapter 30 for similar training;
(2) Education and training services, other than brief courses, such
as review courses necessary for licensure;
(3) Revolving Fund Loan; and
(4) Work-study allowance.
(Authority: 38 U.S.C. 3104(a), 3108(f); Pub. L. 98-525)
(c) Disabled veterans trained for self-employment under a State
rehabilitation agency. A service-disabled veteran who has trained for
self-employment under the auspices of a State rehabilitation agency may
be provided supplemental equipment and initial stocks and supplies
similar to the materials supplied to the most severely disabled veterans
in self-employment programs under Chapter 31, if the following
conditions are met;
(1) The veteran is eligible for employment assistance under
provisions of 21.47;
(2) An official of the State rehabilitation program with
responsibility for administration of self-employment programs certifies
that:
(i) The veteran has successfully completed training for a
self-employment program;
(ii) The assistance needed is not available through the State
rehabilitation program, or other non-VA sources;
(iii) The assistance requested is a part of the veteran's IWRP
(Individualized Written Rehabilitation Plan) developed by the State
rehabilitation program;
(3) The requirements of 21.258 pertaining to self-employment for the
most severely disabled veterans are met; and
(4) The Director, VR&E Service, approves the request, if the cost of
supplies is more than $2,500. The approval of the Director is required
prior to authorization of supplies.
(Authority: 38 U.S.C. 3117(b))
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4283, Jan. 30, 1989;
57 FR 57108, Dec. 3, 1992)
38 CFR 21.256 Incentives for employers.
(a) General. VA may make payments to employers to enable a veteran
who has been rehabilitated to employability to begin and maintain
employment or to provide on-job training. The purpose of such payment
is to facilitate the placement of veterans who are generally qualified
for employment but may lack some specific training or work experience
which the employer requires or who are difficult to place due to their
disability. The specific conditions which must be met before this
option may be considered are contained in paragraphs (b) through (d) of
this section.
(b) Requirements for payments to employers. Payments may be made to
employers to provide on-job training or to begin and maintain employment
if all of the following conditions are met:
(1) The veteran is in need of an on-job training situation or is
generally qualified for employment but such on-job situation or
employment opportunity is not otherwise available despite repeated and
intensive efforts on the part of VA and the veteran to secure such
opportunities. These conditions are also considered to be met when:
(i) There are few employers within commuting distance of the
veteran's home who can provide a training or employment opportunity
consistent with the veteran's plan; and
(ii) The veteran reasonably could not be required to seek on-job or
employment opportunities in other areas due to the effects of his or her
disability, family situation, or other pertinent factors; and
(iii) The available local employers will only provide a training or
employment opportunity if VA agrees to reimburse for direct expenses to
the degree permitted under this section.
(2) The training establishment or employer is in compliance with
provisions of 21.292 (a) and (b), pertaining to the approval of courses
and facilities.
(3) VA entered into an agreement with the employer in writing prior
to the beginning of the period of on-job training or employment, whereby
the employer will be reimbursed for direct expenses approved under
provisions of paragraph (c) of this section.
(4) The on-job training program or employment of the veteran does not
displace a current employee or prevent the recall of a laid-off
employee.
(c) Limitation on payment. Payments to the employer may be made only
for the employer's direct expenses as a result of hiring the veteran and
generally may not exceed one-half of the wage paid to other employees in
the same or similar job. Direct expenses include:
(1) Instruction;
(2) Instructional aids;
(3) Training materials and supplies provided to the veteran;
(4) Minor modification of equipment to the special limitations of the
veteran;
(5) Significant loss of productivity of the employer caused by using
the veteran as opposed to a nondisabled employee.
(d) Duration. The period for which the employer is paid may not
exceed the period necessary to accomplish on-job training or to begin
and maintain employment at the journeyman level for at least 2 months.
The period for which payment may be authorized may not exceed 9 months,
unless the Director, VR&E Service, approves a longer period.
(e) Benefits and services. (1) An eligible veteran on whose behalf
payments are made to the employer shall be provided all other Chapter 31
benefits and services furnished to other veterans receiving employment
services. A veteran may not be paid a subsistence allowance during the
period in which job training or work experience is furnished under this
section.
(2) Notwithstanding any other provisions of these regulations, if the
program in which the veteran is participating meets the criteria for
approval of on-job training under chapter 30, the veteran may be paid at
educational assistance rates provided for this type of training under
chapter 30 to the extent that he or she has remaining eligibility and
entitlement under chapter 30 and has elected to receive a subsistence
allowance in accordance with 21.7136.
(Authority: 38 U.S.C. 1508(f), 1516(b), 1662(e))
(f) Non-duplication. VA will not make payments under the provisions
of this section to an employer receiving payments from any other program
for the same training or employment expenses.
(Authority: 38 U.S.C. 3116(b))
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985; 54 FR 4283,
Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992)
38 CFR 21.257 Self-employment.
(a) General. Vocational rehabilitation will generally be found to
have been accomplished by the veteran when he or she achieves suitable
employment in the objective selected, in an existing business, agency or
organization in the public or private sector. Rehabilitation of the
veteran may be achieved through self-employment in a small business, if
the veteran's access to the normal channels for suitable employment in
the puplic or private sector is limited because of his or her disability
or other circumstances in the veteran's situation warrant consideration
of self-employment as an additional option.
(b) Self-employment plan. VA staff will conduct a comprehensive
survey and analysis of the feasibility of self-employment prior to
authorization of a rehabilitation plan leading to self-employment. The
analysis and self-employment plan developed on the basis of such
analysis shall be made a part of the veteran's Chapter 31 record. The
survey and plan shall include:
(1) An analysis of the economic viability of the proposed small
business plan;
(2) A cost analysis which specifies the amount and type of
assistance, if any, which VA would be committed to furnish;
(3) Provision for development of a market for the veteran's services
during the period of rehabilitation to the point of employability,
and/or employment services;
(4) A suitable occupational objective in which employment can
normally be secured in the public or private sector;
(5) Training necessary for the operation of a successful small
business;
(6) Availability of non-VA financing, including the veteran's
financial resources, local banks and other sources;
(7) Coordination with the Small Business Administration to secure
special consideration under section 8 of the Small Business Act, as
amended;
(8) The location of the site selected for the business and the cost
of the site, if any.
(Authority: 38 U.S.C. 3104(a)(12))
38 CFR 21.258 Special assistance for veterans in self-employment.
(a) General. A veteran in a self-employment program is eligible for
certain special assistance in addition to the services for which
veterans in a vocational rehabilitation program are generally eligible
under the provisions of 21.252. A veteran may be provided the
assistance described under 21.214 to the extent of his or her
eligibility for such services as determined under paragraphs (b) and (c)
of this section and 21.254(c).
(Authority: 38 U.S.C. 3116, 3117)
(b) Special services for the most severely disabled veterans.
Special services listed in 21.214(e) shall be provided as necessary for
the most severely disabled veterans. The term most severely disabled
veteran means a veteran who has been determined to have a serious
employment handicap and limitations on employability arising from the
effects of disability (service-connected and nonservice-connected) which
necessitates selection of self-employment as the veteran's vocational
goal. This category includes veterans requiring:
(1) Homebound training and self-employment; or
(2) Self-employment for other reasons even though the veteran is able
to pursue training on other than a homebound basis, e.g., lack of
suitable employment opportunities in the area.
(Authority: 38 U.S.C. 3104(a)(12))
(c) Special services for other veterans. Special services described
in 21.214(e) may be furnished to a veteran with a serious employment
handicap if the veteran also meets the following conditions:
(1) Self-employment is clearly shown to be the soundest method of
achieving rehabilitation; or
(2) Self-employment is selected as an alternative to retaining the
veteran in another occupation, and the cost of a self-employment program
will not exceed the cost of retraining in another occupation.
(d) Assisting a veteran with an employment handicap to become
self-employed. A veteran with an employment handicap may not be
furnished any of the special services described in 21.214(e). However,
if it is determined that consideration of self-employment is warranted,
VA may provide:
(1) Incidental training in the management of a small business;
(2) License or other fees required for employment and
self-employment; and
(3) The tools and supplies which would ordinarily be required for the
veteran to begin employment in the field in which the veteran has
trained.
(Authority: 38 U.S.C. 3104(a)(12))
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended
at 55 FR 25975, June 26, 1990; 55 FR 28511, July 11, 1990)
38 CFR 21.258 Monetary Assistance Services
38 CFR 21.260 Subsistance allowance.
(a) General. A veteran in a rehabilitation program under chapter 31
will receive a monthly subsistence allowance at rates specified in
paragraph (b) of this section, unless he or she has elected to receive
payment at the rate of the monthly educational allowance paid under
chapter 30 for similar training. See 21.264 for election of payment at
the chapter 30 rate and 21.7136, 21.7137, and 21.7138 to determine the
applicable rate.
(Authority: 38 U.S.C. 3108(a), 3108(f), 3462(e); Pub. L. 98-525)
(b) Rate of payment. Subsistence allowance is paid at the following
rates effective January 1, 1990.
(Authority: 38 U.S.C. 3108; Pub. L. 101-237)
(c) Subsistence allowance precluded. A subsistence allowance may not
be paid for any period during which the only authorized services being
furnished to the veteran by VA are:
(1) Initial evaluation;
(2) Employment services; or
(3) Counseling.
(Authority: 38 U.S.C. 3108(a))
(d) Dependents. The term dependent means a spouse, child or
dependent parent who meets the definition of relationship specified in
3.50, 3.51, 3.57 or 3.59 of this chapter.
(Authority: 38 U.S.C. 3108(b))
(49 FR 40814, Oct. 18, 1984, as amended at 51 FR 9955, Mar. 24, 1986;
52 FR 42113, Nov. 3, 1987; 54 FR 4283, Jan. 30, 1989; 56 FR 7567,
Feb. 25, 1991)
38 CFR 21.262 Procurement and reimbursement of cost for training and
rehabilitation services, supplies, or facilities.
(a) General. Whenever services, supplies and facilities from source
outside VA are required by any of these regulations, they shall be
provided through contract, agreement of other cooperative arrangement
between VA and the vendor.
(Authority: 38 U.S.C. 3115(b))
(b) VA Acquisition Regulations. Payments of charges for training and
rehabilition services, supplies, or facilities, authorized under Chapter
31 are subject to the provisions of applicable VA Acquisition
Regulations especially 48 CFR part 831 and subpart 871.2.
(Authority: 38 U.S.C. 3115(a))
38 CFR 21.264 Election of payment at the Chapter 30 educational
assistance rate.
(a) Eligibility. A veteran who applies for, and is found entitled to
training or education under Chapter 31, may elect to receive payment at
the educational allowance rate and other assistance furnished under
Chapter 30, for similar training in lieu of a subsistence allowance,
provided the following criteria are met:
(1) The veteran has remaining eligibility for, and entitlement to
educational assistance under Chapter 30;
(2) The veteran enrolls in a program of education or training
approved for benefits under Chapter 30;
(3) The program of education is part of an IWRP (Individualized
Written Rehabilitation Plan) approved by VA.
(Authority: 38 U.S.C. 3108(f); Pub. L. 98-525)
(b) Reelection of subsistence allowance. Reelection of payment of
benefits at the Chapter 31 subsistence allowance rate may be made only
after completion of a term, quarter, semester, or other period of
instruction unless:
(1) Chapter 30 eligibility or entitlement ends earlier;
(2) Failure to approve immediate reelection would prevent the veteran
from continuing in the rehabilitation program.
(Authority: 38 U.S.C. 3108(f); Pub. L. 98-525)
(c) Services precluded. A veteran entitled to vocational
rehabilitation training or education who elects payment at the
educational assistance rate payable under Chapter 30 shall be provided
the same training and rehabilitation services as other veterans under
Chapter 31, but may not be provided:
(1) Subsistence allowances;
(2) Loans from the revolving fund loan;
(3) Payment of costs for:
(i) Vocational and other training services;
(ii) Supplies; or
(iii) Individualized tutorial assistance.
(Authority: 38 U.S.C. 3108(f); Pub. L. 98-525)
(d) Chapter 30 provisions applicable. A veteran who has elected
payment at the Chapter 30 educational assistance rate must meet the same
terms and conditions as other veterans pursuing similar training under
these programs.
(Authority: 38 U.S.C. 3108(f); Pub. L. 98-525)
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4283, Jan. 30, 1989;
57 FR 57108, Dec. 3, 1992)
38 CFR 21.266 Payment of subsistence allowance under special
conditions.
(a) Hospitalized veteran or serviceperson. A veteran pursuing a VA
rehabilitation program under Chapter 31 while hospitalized in a VA
medical center or in any other hospital at VA expense may receive the
subsistence allowance otherwise payable. The subsistence allowance will
be paid at the rates specified in 21.260, except:
(1) The amount of subsistence allowance or the allowance provided
under 21.264 that may be paid to a veteran pursuing a rehabilitation
program for any month for which the veteran receives compensation at the
rate prescribed in 3.401(h) of this title, as the result of hospital
treatment (not including post-hospital convalescence) or observation at
the expense of VA may not exceed, when added to any compensation to
which such veteran is entitled for the month, an amount equal to the
greater of:
(i) The sum of: (A) the amount of monthly subsistence of the
allowance payable under 21.264, and (B) the amount of monthly
disability compensation that would be paid to the veteran if he or she
was not receiving compensation at the temporary 100 percent rate as the
result of such hospital treatment or observation, or
(ii) The amount of monthly disability compensation payable under
3.401(h) of this title.
(2) A veteran pursuing a rehabilitation program while in post
hospital convalescence ( 3.401(h)) will be paid the regular rate of
subsistence allowance.
(3) A serviceperson pursuing a rehabilitation program under Chapter
31 will not receive a subsistence allowance if he or she is hospitalized
in a medical facility under the jurisdiction of the Secretary pending
final discharge from the armed forces.
(Authority: 38 U.S.C. 3108(h))
(b) Specialized rehabilitation facility -- (1) A veteran in a
specialized rehabilitation facility will be paid the regular rate of
subsistence allowance at the institutional rate. VA may pay the cost of
room and board in lieu of subsistence allowance when:
(i) The specialized rehabilitation facility requires that similarly
circumstanced persons pay the same charges for room and board, and
(ii) The case manager finds and the veteran agrees that it is to the
veteran's advantage for VA to pay the cost of room and board.
(2) Even though VA pays the cost of room and board, the veteran will
be paid that portion of subsistence allowance otherwise payable for
dependents.
(Authority: 38 U.S.C. 3108(e))
(c) Non-pay work experience or training in a Federal agency. A
veteran in an on-job program or being provided work experience in a
Federal agency at no or nominal pay shall receive subsistence allowance
at the institutional rate.
(Authority: 38 U.S.C. 3108(c))
(d) Extended evaluation and independent living program. A veteran in
a program of extended evaluation or independent living service program
shall be paid subsistence allowance for full or part-time participation
at the rate specified for institutional training in 21.260. If an
extended evaluation or independent living program is pursued on a less
than a quarter-time basis, as measured under 21.310(d), VA will only
pay established charges for services furnished.
(Authority: 38 U.S.C. 3108(h))
(e) On-job training. A veteran in an on-job training program will be
paid subsistence allowance at the rate provided under 21.260(b), except
that subsistence allowance may not exceed the difference between the
monthly training wage, exclusive of overtime, and the entrance
journeyman wage for the veteran's objective.
(Authority: 38 U.S.C. 3108(c))
38 CFR 21.268 Employment adjustment allowance.
(a) General. A veteran who completes a period of rehabilitation and
reaches the point of employability will be paid an employment adjustment
allowance for a period of two months at the full-time subsistence
allowance rate for the type of program the veteran was last pursuing.
(See 21.190(d))
(Authority: 38 U.S.C. 3108(a))
(b) Reelection of subsistence allowance. A veteran who has elected
payment at the Chapter 30 educational assistance allowance rate may be
paid an employment adjustment allowance only if he or she reelects
subsistence allowance to become effective no later than the day
following completion of the period of rehabilitation to the point of
employability.
(Authority: 38 U.S.C. 3108(f); Pub. L. 98-525)
(c) Special programs. An employment adjustment allowance will be
paid at the institutional rate of subsistence allowance for veterans in
any of the following programs:
(1) On-job training at no or nominal pay in a Federal agency;
(2) Training in the home program;
(3) Independent instructor program;
(4) Cooperative program; or
(5) Self-employment program.
(d) Combination program. A veteran who has pursued a combination
program will be paid an employment adjustment allowance at the full-time
rate for the type of training the veteran was actually pursuing at the
completion of the period of rehabilitation to the point of
employability.
(e) Subsequent payments of employment adjustment allowance. If a
veteran has ever received an employment adjustment allowance following
rehabilitation to the point of employability, he or she may,
nevertheless, receive it again when completing an additional
rehabilitation program to the point of employability if:
(1) The prior determination of rehabilitation to the point of
employability is set aside; and
(2) The veteran is reinducted into a new vocational rehabilitation
program as provided in 21.282.
(f) Employment adjustment allowance not charged against entitlement.
An employment adjustment allowance will not be charged against the
veteran's basic entitlement.
(Authority: 38 U.S.C. 3108(a))
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989;
57 FR 57108, Dec. 3, 1992)
38 CFR 21.270 Payment of subsistence allowance during leave and between
periods of instruction.
(a) Payment during leave. VA will pay an eligible veteran a
subsistence allowance during any period of approved leave including a
veteran:
(1) Receiving medical or rehabilitation services on an outpatient
basis at a VA medical center, and who provides his or her own room and
board;
(2) Receiving service department retirement or retained pay while not
on active duty;
(3) Hospitalized at a VA medical center while on approved leave. If
the veteran becomes eligible for payment of disability compensation at
the temporary 100 percent rate, under 3.401(h) of this title due to
hospitalization, payment will be made under provisions of 21.266(a).
(Authority: 38 U.S.C. 3110)
(b) Payment for intervals between periods of instruction.
Subsistence allowance will paid to a veteran during the following
periods unless the case manager and the veteran jointly determine that
such payment is not in the veteran's interest:
(1) A period between consecutive terms within an enrollment period
that does not exceed 1 full calendar month;
(2) A period between consecutive school terms, when the veteran, as
part of his or her approved program of vocational rehabilitation,
transfers from one educational institution to another for the purpose of
enrolling in, and pursuing, the same objective at the second
institution, provided the period does not exceed 30 days;
(3) A period which does not exceed 30 days, between a semester, term,
or quarter, when the educational institution certifies the enrollment of
the veteran on an individual semester, term, or quarter basis.
(c) Payment for other periods. Subsistence allowance will be paid
for:
(1) Weeekend and legal holidays, or customary vacation periods
associated with them;
(2) Periods in which the school is closed temporarily under emergency
conditions described in 21.4138(f).
38 CFR 21.272 Veteran-student services.
(a) Eligibility. Veterans who are pursuing a rehabilitation program
under chapter 31 on a three-quarter or full-time basis are eligible to
receive a work-study allowance.
(Authority: 38 U.S.C. 3104(a)(4), 3485, Pub. L. 101-237)
(b) Selection criteria. Whenever feasible, VA will give priority to
veterans with service-connected disabilities rated at 30 percent or more
disabling in selection of recipients of this allowance. VA shall
consider the following additional selection criteria:
(1) Need of the veteran to augment the subsistence allowance or
payment made by the Chapter 30 rate;
(2) Motivation of the veteran; and
(3) Compatibility of the work assignment with the veteran's physical
condition.
(Authority: 38 U.S.C. 3104(a)(4), 3108(f), 3485; Pub. L. 98-525)
(c) Utilization. Veteran-student services may be utilized in
connection with:
(1) VA outreach service program as carried out under the supervision
of a VA employee;
(2) Preparation and processing of necessary VA papers and other
documents at educational institutions, regional offices or other VA
facilities;
(3) Hospital and domiciliary care and medical treatment at VA
facilities; and
(4) Any other appropriate activity of VA.
(d) Rate of payment. (1) In return for the veterans' agreement to
perform services for VA totaling 25 times the number of weeks contained
in an enrollment period, VA will pay an allowance equal to the higher
of:
(i) The hourly minimum wage in effect under section 6(a) of the Fair
Labor Standards Act of 1938 times the number of hours the veteran has
agreed to work; or
(ii) The hourly minimum wage under comparable law of the State in
which the services are to be performed times the number of hours the
veteran has agreed to work.
(2) VA will pay proportionately less to a veteran who agrees to
perform a lesser number of hours of services.
(Authority: 38 U.S.C. 3104(a)(4), 3485, Pub. L. 101-237.)
(e) Payment in advance. VA will pay in advance an amount equal to 40
percent of the total amount payable under the contract.
(Authority: 38 U.S.C. 3104(a)(4), 3485.)
(f) Veteran reduces rate of training. In the event the veteran
reduces his or her training to less than three-quarter time before
completing an agreement, the veteran, with the approval of the Director
of the VA field station, or designee, may be permitted to complete the
portions of an agreement in the same or immediately following term,
quarter or semester in which the veteran ceases to be at least a
three-quarter time student.
(Authority: 38 U.S.C. 3104(a)(4), 3485, Pub. L. 101-237.)
(g) Veteran terminates training. If the veteran terminates all
training before completing an agreement, VA:
(1) Will permit him or her to complete the portion of the agreement
represented by the sum of money VA has advanced to the veteran for which
he or she has not performed any services; but
(2) Will not permit him or her to complete that portion of an
agreement for which no advance has been made.
(h) Indebtedness for unperformed service. (1) If the veteran has
received an advance for hours of unperformed service that remain after
application of paragraphs (f) and (g) of this section, that advance:
(i) Will be a debt due the United States; and
(ii) Will be subject to recovery in the same manner as any other debt
due the United States;
(2) For each hour of unperformed service, the amount of indebtedness
shall equal the hourly wage upon which the contract was made.
(i) Survey. VA will conduct an annual survey of its regional offices
to determine the number of veterans whose services can be utilized
effectively.
(Authority: 38 U.S.C. 3104(a)(4), 3485)
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985; 54 FR 4284,
Jan. 30, 1989, as amended at 56 FR 14648, Apr. 11, 1991; 57 FR 57108,
Dec. 3, 1992)
38 CFR 21.274 Revolving fund loan.
(a) Establishment of revolving fund loan. A revolving fund is
established to provide advances to veterans who would otherwise be
unable to begin or continue in a rehabilitation program without such
assistance.
(b) Definition. The term advance means a non-interest loan from the
revolving fund.
(c) Eligibility. A veteran is eligible for an advance if the
following conditions are present:
(1) An Individualized Written Rehabilitation Plan, Individualized
Extended Evaluation Plan, or Individualized Independent Living Plan has
been prepared; and
(2) The veteran and VA staff agree on the terms and conditions of the
plan.
(d) Advance conditions. (1) An advance may be approved when the
following conditions are met:
(i) The purpose of the advance is clearly and directly related to
beginning, continuing, or reentering a rehabilitation program;
(ii) The veteran would otherwise be unable to begin, continue or
reenter his or her rehabilitation program;
(iii) The advance does not exceed either the amount needed, or twice
the monthly subsistence allowance for a veteran without dependents in
full-time institutional training; and
(iv) The veteran has elected, or is in receipt of, subsistence
allowance.
(2) An advance may not be made to a veteran who meets conditions
described in paragraph (d)(1) of this section if the veteran:
(i) Has not fully repaid an advance;
(ii) Does not agree to the terms and conditions for repayment; or
(iii) Will not be eligible in the future for payments of pension,
compensation, subsistence allowance, educational assistance, or retired
pay.
(e) Determination of the amount of the advance. (1) If the
conditions described in paragraphs (c) and (d)(2) of this section are
met, a counseling psychologist or vocational rehabilitation specialist
in the VR&C Division will:
(i) Document the findings; and
(ii) Determine the amount of the advance.
(2) Loans will be made in multiples of $10.
(f) Repayment -- (1) Offset possible. The amount advanced will be
repaid in monthly installments from future VA payments for compensation,
pension, subsistence allowance, educational assistance allowance or
retired pay.
(i) Repayment will begin on the earlier of the following dates:
(A) The first day of the month following the month in which the
advance is granted; or
(B) The first day of the month after receipt of the advance in which
the veteran receives a subsistence allowance
(ii) The VR&C staff person who approves the advance will determine
the rate of repayment.
(iii) The monthly rate of repayment may not be less than 10 percent
of the amount advanced unless the monthly benefit against which the
advance is being offset is less than that amount.
(2) Offset not possible. If the amount advanced cannot be repaid
from the benefits cited in paragraph (f)(1) of this section because the
veteran is not in receipt of any of these benefits, collection of the
amount due will be made in the same manner as any other debt payable to
VA.
(Authority: 38 U.S.C. 3112)
38 CFR 21.276 Incarcerated veterans.
(a) General. The provisions contained in this section describe the
limitations on payment of subsistence allowance and charges for tuition
and fees for:
(1) Incarcerated veterans;
(2) Formerly incarcerated veterans in halfway houses; and
(3) Incarcerated and formerly incarcerated veterans in work release
programs.
(Authority: 38 U.S.C. 3108(g), 3680(a))
(b) Definition. The term incarcerated veteran means any veteran
incarcerated in a Federal, State, or local prison, jail, or other penal
institution for a felony. It does not include any veteran who is
pursuing a rehabilitation program under Chapter 31 while residing in a
halfway house or participating in a work-release program in connection
with such veteran's conviction of a felony.
(c) Subsistence allowance not paid to an incarcerated veteran. A
subsistence allowance may not be paid to an incarcerated veteran
convicted of a felony, but VA may pay all or part of the veteran's
tuition and fees.
(Authority: 38 U.S.C. 3108(g))
(d) Halfway house. A subsistence allowance may be paid to a veteran
pursuing a rehabilitation program while residing in a halfway house as a
result of a felony conviction even though all of the veteran's living
expenses are paid by a non-VA Federal, State, or local government
program.
(Authority: 38 U.S.C. 3108(a))
(e) Work-release program. A subsistence allowance may be paid to a
veteran in a work-release program as a result of a felony conviction.
(f) Services. VA may provide other appropriate services, including
but not limited to medical, reader service, and tutorial assistance
necessary for the veteran to pursue his or her rehabilitation program.
(Authority: 38 U.S.C. 3108(g))
(g) Payment of allowance at the rates paid under Chapter 30. A
veteran incarcerated for a felony conviction or a veteran in a halfway
house or work-release program who elects payment at the educational
assistance rate paid under Chapter 30 shall be paid in accordance with
the provisions of law applicable to other incarcerated veterans training
under Chapter 30.
(Authority: 38 U.S.C. 3108(f), 3680(a); Pub. L. 98-525)
(h) Apportionment. Apportionment of subsistence allowance which
began before October 17, 1980 made to dependents of an incarcerated
veteran convicted of a felony may be continued.
(Authority: 38 U.S.C. 3108(g))
(49 FR 40814, Oct. 18, 1984, as amended at 51 FR 22807, June 23,
1986; 54 FR 4284, Jan. 30, 1989; 57 FR 57108, Dec. 3, 1992)
38 CFR 21.276 Entering a Rehabilitation Program
38 CFR 21.282 Effective date of induction into a rehabilitation
program.
(a) General. Except as provided in paragraph (b) the effective date
of induction of a veteran into a rehabilitation program will be one of
the dates provided in 21.320 through 21.334.
(Authority: 38 U.S.C. 3108)
(b) Retroactive induction. (1) A veteran may be inducted into a
vocational rehabilitation program retroactively when all of the
following conditions are met:
(i) The period for which retroactive induction is requested is within
the veteran's basic period of eligibility or extended eligibility as
provided in 21.41 through 21.44;
(ii) The veteran was entitled to disability compensation during the
period for which retroactive induction is requested, and met the
criteria of entitlement to vocational rehabilitation for that period;
and
(iii) The training the veteran pursued during the period is
applicable to the occupational objective that is confirmed in initial
evaluation to be compatible with his or her disability, consistent with
his or her abilities, interests, and aptitudes, and otherwise suitable
for accomplishing vocational rehabilitation.
(Authority: 38 U.S.C. 5113)
(2) A veteran shall not be inducted into a vocational rehabilitation
program retroactively if any of the following conditions exist even
though all conditions of paragraph (b) of this section are met;
(i) Timely induction was prevented by the veteran's lack of
cooperation in completing an initial evaluation;
(ii) The veteran has previously received benefits under another VA
program of education or training for any period for which retroactive
benefits are being requested under Chapter 31;
(iii) A period of extended evaluation is authorized to determine the
reasonable feasibility of a vocational goal; or
(iv) The veteran's claim is not received within the time limits
described in 21.31.
(Authority: 38 U.S.C. 3101(9))
(c) Effective date of retroactive induction. The effective date of a
veteran's retroactive induction into training shall be no earlier than
one year prior to the date of application for Chapter 31 benefits but in
no event may precede:
(1) The effective date of the establishment of the veteran's
compensable service-connected disability; or
(2) The first date the veteran began training in the program leading
to the occupational objective established in the veteran's plan.
(Authority: 38 U.S.C. 5113)
38 CFR 21.284 Reentrance into a rehabilitation program.
(a) Reentrance into rehabilitation to the point of employability
following a determination of rehabilitation. A veteran who has been
found rehabilitated under provisions of 21.196 may be provided an
additional period of training or services only if the following
conditions are met:
(1) The veteran has a compensable service-connected disability and
either;
(2) Current facts, including any relevant medical findings, establish
that the veteran's service-connected disability has worsened to the
extent that the effects of the service-connected disability considered
in relation to other facts precludes him or her from performing the
duties of the occupation for which the veteran previously was found
rehabilitated; or
(3) The occupation for which the veteran previously was found
rehabilitated under Chapter 31 is found to be unsuitable on the basis of
the veteran's specific employment handicap and capabilities.
(Authority: 38 U.S.C. 3101(a))
(b) Reentrance into a program of independent living services
following a determination of rehabilitation. A finding of
rehabilitation following a program of independent living services may
only be set aside, and an additional period of independent living
services provided, if the following conditions are met:
(1) Either:
(i) The veteran's condition has worsened and as a result the veteran
has sustained a substantial loss of independence; or
(ii) Other changes in the veteran's circumstances have caused a
substantial loss of independence; and
(2) The provisions of 21.162 pertaining to participation in a
program of independent living services are met.
(Authority: 38 U.S.C. 3109)
(c) Reentrance into rehabilitation to the point of employability
during a period of employment services. A finding of rehabilitation to
the point of employability by VA may be set aside during a period of
employment services and an additional period of training and related
services provided, if any of the following conditions are met:
(1) The conditions for setting aside a finding of rehabilitation
under paragraph (a) of this section are found;
(2) The rehabilitation services originally given to the veteran are
now inadequate to make the veteran employable in the occupation for
which he or she pursued rehabilitation;
(3) Experience during the period of employment services has
demonstrated that employment in the objective or field for which the
veteran was rehabilitated to the point of employability should not
reasonably have been expected at the time the program was originally
developed; or
(4) The veteran, because of technological change which occurred
subsequent to the declaration of rehabilitation to the point of
employability, is no longer able:
(i) To perform the duties of the occupation for which he or she
trained, or in a related occupation; or
(ii) To secure employment in the occupation for which he or she
trained, or in a related occupation.
(Authority: 38 U.S.C. 3117)
38 CFR 21.284 Course Approval and Facility Selection
38 CFR 21.290 Training and rehabilitation resources.
(a) General. For the purpose of providing training and
rehabilitation services under Chapter 31 VA may:
(1) Use facilities, staff and other resources of VA;
(2) Employ any additional personnel and experts needed;
(3) Use the facilities and services of any:
(i) Federal agency;
(ii) State agency;
(iii) Other public agency; or
(iv) Agency maintained by joint Federal and state contributions.
(4) Use the facilities and services of any:
(i) Public institution or establishment;
(ii) Private institution or establishment; or
(iii) Private individual.
(b) Agreement required. Use of facilities and services provided
under paragraph (a) of this section shall be procured through contract,
agreement, or other cooperative arrangement. The specific requirements
for use of contracts or other arrangements are described in 48 CFR
871.2.
(Authority: 38 U.S.C. 3115)
38 CFR 21.292 Course approvals.
(a) Courses must be approved. Only those courses approved by the
Department of Veterans Affairs shall be utilized to provide training and
rehabilitation services under Chapter 31.
(Authority: 38 U.S.C. 3106)
(b) General. VA staff in consultation with the veteran will select
courses and services needed to carry out the rehabilitation plan only
from those which VA determines are offered by a training or
rehabilitation facility which:
(1) Meets the requirements of 21.120 through 21.162;
(2) Meets the criteria of 21.290 through 21.299; and
(3) Is in compliance with Title VI of the Civil Rights Act of 1964,
section 503(a) Veterans Readjustment Act of 1972, and sections 501
through 504 of the Rehabilitation Act of 1973.
(c) Obtaining information necessary for approval. In determining
whether services and courses may be approved for a veteran's training
and rehabilitation under Chapter 31, the Department of Veterans Affairs
may use information relevant to the approval or certification of such
services and courses for similar purposes developed by:
(1) The State approving agencies;
(2) The Department of Labor;
(3) State vocational rehabilitation agencies;
(4) Nationally recognized accrediting associations;
(5) The Committee on Accreditation of Rehabilitation Facilities; and
(6) Other organizations and agencies.
(d) Course not approved. If a course or program is not approved by
one of the agencies identified in paragraph (c) of this section, VR&E
staff shall develop necessary information to determine whether criteria
given in paragraphs (a) and (b) of this section are met.
(e) Course disapproved. Only the Director, VR&E Service may approve
courses which have been disapproved by one of the agencies identified in
paragraph (c) of this section.
(Authority: 38 U.S.C. 3115)
38 CFR 21.294 Selecting the training or rehabilitation facility.
(a) Criteria the facility must meet. In addition to approval of the
courses offered, all facilities which provide training and
rehabilitation services under Chapter 31 must meet the criteria
contained in 21.290 through 21.299 applicable to the type of facility.
Each facility must:
(1) Have space, equipment, instructional material and instructor
personnel adequate in kind, quality, and amount to provide the desired
service for the veteran;
(2) Fully accept the obligation to give the training or
rehabilitation services in all parts of the plan which call for the
facility's participation;
(3) Provide courses or services which:
(i) Meet the customary requirements in the locality for employment in
the occupation in which training is given when employment is the
objective of the program; and
(ii) Meet the requirements for licensure or permit to practice the
occupation, if such is required;
(4) Agree:
(i) To cooperate with VA, and
(ii) To provide timely and accurate information covering the
veteran's attendance, performance, and progress in training in the
manner prescribed by VA.
(b) Selecting a facility for provision of independent living
services. (1) Facilities offering independent living services will be
utilized to:
(i) Evaluate independent living potential;
(ii) Provide a program of independent living services to veterans for
whom an IILP (Individualized Independent Living Plan) has been
developed; or
(iii) Provide independent living services to veterans as part of an
IWRP (Individualized Written Rehabilitation Plan) or an IEEP
(Individualized Extended Evaluation Plan).
(2) VA may use public and nonprofit agencies and facilities to
furnish independent living services. Public and nonprofit facilities
may be:
(i) VHS&RA facilities which provide independent living services;
(ii) Facilities which meet standards established by the State
rehabilitation agency for rehabilitation facilities or for providers of
independent living services;
(iii) Facilities which are neither approved nor disapproved by the
State rehabilitation agency, but are determined by VA as able to provide
the services necessary in an individual veteran's case.
(3) VA also may use for-profit agencies and organizations to furnish
programs of independent living services only if services comparable in
effectiveness to those provided by for-profit agencies and
organizations:
(i) Are not available through public or nonprofit agencies or the
Veterans Health Service and Research Administration (VHS&RA); or
(ii) Cannot be obtained cost-effectively from public or nonprofit
agencies or the facilities of VHS&RA.
(4) In addition to the criteria described in paragraph (b)(3)(i) of
this section for public and private nonprofit agencies; for-profit
agencies and organizations must meet any additional standards
established by local, state (including the State rehabilitation agency),
and Federal agencies which are applicable to for-profit facilities and
agencies offering independent living services.
(Authority: 38 U.S.C. 3115, 3120, Pub. L. 99-576, Pub. L. 100-689)
(c) Use of facilities. VA policy shall be to use VA facilities, if
available, to provide rehabilitation services for veterans in a
rehabilitation program under chapter 31. Non-VA facilities may be used
to provide rehabilitation services only when necessary services are not
readily available at a VHS&RA facility. This policy shall be
implemented in accordance with the provisions of paragraph (b) of this
section in the case of the use of for-profit facilities to provide
programs of independent living services, or in the case of employment
services, provision of such services by non-VA sources is permitted
under 21.252.
(Authority: 38 U.S.C. 3115, Pub. L. 100-689)
(d) Selection of individual to provide training or rehabilitation
services. Persons selected to provide individual instruction or other
services as part of a program leading to the long-range goal of a
veteran's plan must meet one of the following criteria:
(1) State requirements for teaching in the field or occupation for
which training is being provided; or
(2) Expertise demonstrated through employment in the field in which
the veteran is to be trained; or
(3) Requirements established by professional associations to provide
the services needed by the veteran.
(e) Relatives. Relatives of the veteran may not be selected to
provide services, even if otherwise qualified, unless such use is
specifically permitted by VA regulation governing provision of the
service. Selection of a training or rehabilitation facility owned by
the veteran or a relative, or in which the veteran or a relative of the
veteran has an interest is precluded, except for selection of a farm as
provided in 21.298. The term relative has the same meaning as in
21.374.
(f) Contracts or agreements required. The Department of Veterans
Affairs will negotiate formal contracts for reimbursement to providers
of services as requred by 21.262. However, a letter contract will be
effected immediately to permit the induction of the veteran into a
program if:
(1) The veteran is immediately entered into a school with which a
contract is required;
(2) The veteran's rehabilitation plan will be jeopardized by
withholding services until a contract can be completed; and
(3) There are no known reasons to indicate that a contract may not be
completed in a reasonable time.
(Authority: 38 U.S.C. 3115)
(g) Training outside the United States. VA may only use those
facilities and courses outside the United States to provide training
under Chapter 31 which meet requirements for approval under 21.4250(c)
and 21.4260. The conditions under which training outside the United
States may be approved are contained in 21.130.
(Authority: 38 U.S.C. 3114)
(h) Flight training. Flight training may only be provided in
educational institutions which offer a standard college degree. The
specific conditions under which flight training may be approved are
contained in 21.134.
(Authority: 38 U.S.C. 3115)
(i) Additional consideration. The case manager will consider the
veteran's preference for a particular training or rehabilitation
facility but VA has final responsibility for selection of the facility.
(Authority: 38 U.S.C. 3115)
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended
at 53 FR 50958, Dec. 19, 1988; 55 FR 42187, Oct. 18, 1990)
38 CFR 21.296 Selecting a training establishment for on-job training.
(a) Additional criteria for selecting a training establishment. In
addition to meeting all of the requirements of 21.294 the training
establishment must:
(1) Sign an agreement to provide on-job training to disabled
veterans;
(2) Provide continuous training for each veteran without interruption
except for normal holidays and vacation periods;
(3) Provide daytime training for the veteran except when the veteran
cannot obtain necessary on-job or related training during the working
hours of the day;
(4) Modify the program when necessary to compensate for the
limitations resulting from the veteran's disability or needs;
(5) Organize training into definite steps or units which will result
in progressive training;
(6) Encourage rapid progress of each veteran rather than limit the
progress of the individual to the progress of the group;
(7) Not, during the period of training, use the veteran on production
activities beyond the point of efficient training;
(8) Agree to pay the veteran during training (except as provided in
paragraph (b) of this section) a salary or wage rate;
(i) Commensurate with the value of the veteran's productive labor,
(ii) Not less than that prescribed by the Fair Labor Standards Act of
1938, as amended, and
(iii) Not less than that customarily paid to nonveteran-trainees in
the same or similar training situation;
(9) Agree to provide the veteran with employment at the end of the
training program, provided the veteran's conduct and progress have been
satisfactory; and
(10) Agree to furnish VA a statement in writing showing wages,
compensation, and other income paid directly or indirectly to each
veteran in training under Chapter 31 during the month.
(Authority: 38 U.S.C. 3108(c), 3115)
(b) On-job training at subminimum wage rates. A subminimum hourly
wage rate for handicapped workers may be considered where necessary in
order to prevent curtailment of opportunities for employment. Payment
at the subminimum rate must be approved by the Wage and Hour Division of
the Department of Labor.
(Authority: 38 U.S.C. 3115)
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985)
38 CFR 21.298 Selecting a farm.
(a) Control of the farm -- farm operator. A farm selected for farm
cooperative training must be under the control of the veteran by
ownership, lease or other written tenure arrangement. If the veteran
does not own the farm, the lease or other written agreement shall:
(1) Afford the veteran control of the farm at least until the end of
his or her course;
(2) Allow the veteran's control to be such that he or she is able:
(i) To carry out the provisions of the training program; and
(ii) To operate the farm in accordance with the farm and home plan
developed by the case manager and the veteran in collaboration with the
instructor, and when appropriate, the landowner or lessor;
(3) Permit instruction in the planning, management, and operation of
farming enterprise in the veteran's farm and home plan;
(4) At least by the end of the necessary minimum period of training,
assure the veteran a reasonably satisfactory living under normal
economic conditions;
(5) Provide for the necessary buildings and equipment to enable the
veteran to satisfactorily begin pursuit of the course of farm
cooperative training;
(6) Provide for resources which give reasonable promise that any
additional items required for the pursuit of the course, including
livestock, will be available as they become necessary;
(7) Provide for capital improvements to be made which are necessary
for carrying out the farm and home plan, with the veteran furnishing no
greater portion of the costs than the benefits accruing to the veteran
warrant; and
(8) Provide for the landowner or leasor to share the costs of
improved practices put into effect in proportion to the returns he or
she will receive from such practices.
(b) Farms on which more than one person trains -- farm operator. If
a veteran in training is a partner of another person or if more than one
person is involved in operating the farm, the farm shall be of such size
and character that the farm:
(1) Together with the instruction part of the course will occupy the
full time of the veteran; and
(2) Meets all requirements of paragraph (a) of this section.
(c) Selecting a farm -- farm manager. The farm on which a veteran
trains to become a farm manager shall be of such size and character
that, together with the group instruction part of the course the farm:
(1) Will occupy the full time of the veteran;
(2) Will permit instruction in all aspects of the management and
operation of a farm of the type for which the veteran is being trained;
and
(3) Meets the requirements of paragraph (a) of this section.
(d) Employer agreement. VA may approve a farm on which a veteran is
to train to become a farm manager only if the employer-trainer agrees:
(1) To instruct the veteran in various aspects of farm management in
accordance with the individual's plan;
(2) To pay the veteran for each successive period of training a
salary or wage rate:
(i) Commensurate with the value of the veteran's productive labor;
and
(ii) Not less than that customarily paid to a nonveteran trainee in
the same or similar training situation in that community; and
(3) To employ the veteran as a manager of the farm on which he or she
is being trained if his or her conduct and progress remain satisfactory,
or assure that the veteran will be employed as manager of a specified
comparable farm.
(Authority: 38 U.S.C. 3115)
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985)
38 CFR 21.299 Use of Government facilities for on-job training or work
experience at no or nominal pay.
(a) Types of facilities which may be used to provide training.
Notwithstanding any other provision of regulations governing chapter 31,
the facilities of any agency of the United States or of any State or
local government receiving Federal financial assistance may be used to
provide training or work experience at no or nominal pay as all or part
of the veteran's program of vocational training under 21.123, 21.294,
and 21.296 of this part. The counseling psychologist and case manager
must determine that the training work experience is necessary to
accomplish vocational rehabilitation and providing such training or work
experience is in the best interest of the veteran and the Federal
government.
(Authority: 38 U.S.C. 3115, Pub. L. 100-689)
(b) Employment status of veterans. (1) While pursuing on-job
training or work experience in a facility of the United States, a
veteran:
(i) Shall be deemed to be an employee of the United States for the
purposes of benefits under chapter 81, title 5 U.S.C.; but
(ii) Shall not be deemed an employee of the United States for the
purpose of laws administered by the Office of Personnel Management.
(2) While pursuing on-job training or work experience in a State or
local government agency the veteran shall have the employment status and
rights comparable to those provided in paragraph (b)(1) of this section
for a veteran pursuing on-job training or work experience at a Federal
agency.
(Authority: 38 U.S.C. 3115, Pub. L. 100-689)
(c) Terms applicable to training in State and local government. (1)
The term State means each of the several States Territories, any
possession of the United States, the District of Columbia, and the
Commonwealth of Puerto Rico.
(Authority: 38 U.S.C. 101(20))
(2) The term local government agency means an administrative
subdivision of a government including a county, municipality, city,
town, township, public authority, district, school district, or other
such agency or instrumentality of a local government.
(3) The term Federal financial assistance means the direct or
indirect provision of funds by grant, loan, contract, or any other
arrangement by the Federal government to a State or local government
agency.
(d) Additional considerations in providing on-job training and work
experience in State and local government agencies. (1) The veteran's
progress and adjustment in a rehabilitation program conducted wholly or
in part at a State or local government agency shall be closely monitored
by VR&C staff members to assure that:
(i) Training and rehabilitation services are provided in accordance
with the veteran's rehabilitation plan. The plan shall provide for:
(A) Close supervision of the veteran's progress and adjustment by the
case manager during the period he or she is at the State or local
government agency; and
(B) The employer's periodic certification (not less than once every
three months) that the veteran's progress and adjustment are in
accordance with the program which has been jointly developed by VA, the
veteran and the employer; and
(ii) The veteran achieves his or her employment goal.
(2) Training may not be provided for a position which involves
religious or political activities;
(3) The veteran's training:
(i) Will not result in the displacement of currently employed
workers; and
(ii) Will not be in a job while another person is laid off from a
substantially equivalent job, or will not be in a job the opening for
which was created as a result of the employer having terminated the
employment of any regular employee or otherwise having reduced its
workforce with the intention of using the opening for a Chapter 31
trainee.
(Authority: Pub. L. 100-689)
(55 FR 3739, Feb. 5, 1990)
38 CFR 21.299 Rate of Pursuit
38 CFR 21.310 Rate of pursuit of a rehabilitation program.
(a) Programs offered at educational institutions. This section
provides policy for determining the full-time and part-time rate of
pursuit of a rehabilitation program by a veteran whose ability to pursue
a program has not been reduced by the effects of disability.
(1) Measuring full and part-time training. VA will measure the
full-time and part-time rate of pursuit of training offered at
educational institutions according to the criteria found in 21.4270
through 21.4275, except as provided in paragraphs (a) (2) and (3) of
this section.
(2) Independent study course. (i) For certain seriously disabled
veterans described in subdivision (i)(A) of this subparagraph VA may
measure the veteran's enrollment:
(A) In an independent study course as half-time or greater training,
or
(B) Both in independent study subjects and subjects requiring class
attendance on the basis of the combined training load when the number of
credit hours of independent study equals or exceeds the number of other
credit hours.
(ii) To qualify for measurement described in paragraph (a)(2)(i) of
this section:
(A) The seriously disabled veteran must have a disability or
circumstances which preclude regular attendance at an institution of
higher learning, and
(B) Independent study must be a sound method for providing the
training necessary for restoring the veteran's employability.
(iii) In all other cases VA will measure independent study according
to the provisions of 21.4280.
(3) Special school. If training is pursued in a special school, such
as those for persons with visual or hearing disabilities, the rate of
pursuit will be measured under 21.2470 through 21.4275 unless it is
the established policy of the school to measure the rate of pursuit for
full-time or particular level or part-time training based upon fewer
semester, credit, or clock hours of attendance than prescribed in these
regulations.
(4) Farm cooperative. If training in a farm cooperative program is
provided by an educational institution, the rate of pursuit shall be
determined the same as under 21.4270 for that type of training.
(5) Course offered under contract. When a school or other entity
furnishes all or part of a vocational rehabilitation program under
contact with another school, VA will measure the course or courses as
appropriate for the school or other entity actually providing the
training.
(b) Education or training not furnished by an educational
institution. The following types of training which are not furnished by
an educational institution ( 21.35(k)(3) may only be pursued full-time:
(1) On-job training. Full-time training in an on-job program is the
lesser of the number of hours in the prevailing workweek for:
(i) Journeyman employees in the same job categories at the
establishment where training is being provided;
(ii) Other persons in on-job training for the same or similar
occupations at the facility where the veteran is training or at other
facilities in the locality.
(2) Farm cooperative training. If training in a farm cooperative
program is provided by an individual instructor, the full-time rate of
pursuit must meet the requirements of 21.126.
(3) Independent instructor. The full-time rate of pursuit for a
veteran in an independent instructor program must meet the requirements
of 21.146.
(4) Training in the home. The full-time rate for a training program
provided in the veteran's home must meet the requirements of 21.146.
(5) Vocational course in a rehabilitation facility or sheltered
workshop. A vocational course of training offered by a rehabilitation
facility or sheltered workshop ( 21.35(k) (5) and (6)), will be measured
under provisions of 21.4270(b) for trade or technical nonaccredited
courses, unless it is the established policy of the facility to measure
the rate of pursuit for full-time or a particular level of part-time
training based upon fewer clock hours of attendance than provided in
that regulation.
(c) Combination and cooperative programs. The rate of pursuit of a
program which combines institutional training and on job training will
be measured as follows:
(1) The institutional part will be assessed under 21.4270 through
21.4275, and
(2) The on-the-job part will be assessed under paragraph (b)(1) of
this section.
(d) Rehabilitative services. Measurement of the rate of pursuit for
veterans in programs consisting primarily of services designed to
evaluate and improve physical and psychological functioning will be
assessed under this paragraph.
(1) The services assessed under this paragraph include:
(i) Evaluation and improvement of the rehabilitation potential of a
veteran for whom attainment of a vocational goal is reasonably feasible;
(ii) Extended evaluation to determine whether attainment of a
vocational goal is reasonably feasible; or
(iii) A program of independent living services to enable a veteran to
function more independently in his or her family and community when
attainment of a vocational goal is not reasonably feasible.
(2) Measurement of the rate of pursuit for services and programs
named in paragraph (d)(1) of this section will be:
(i) As provided in paragraph (a) of this section for services
furnished by educational institutions; or
(ii) According to the noneducational facility's customary criteria
for full-time and part-time pursuit. If the facility does not have
established criteria for full-time and part-time pursuit, or services
are being provided by more than one facility, the rate of pursuit will
be assessed in the following manner:
(Authority: 38 U.S.C. 3108(d))
38 CFR 21.312 Reduced work tolerance.
(a) General. VA will consider that a veteran with reduced work
tolerance is pursuing a rehabilitation program full-time when the amount
of time the veteran is devoting to his or her program is as great as the
effects of his or her disability (service and nonservice-connected) will
permit.
(b) Pursuit of a program. A veteran with reduced work tolerance may
pursue a rehabilitation program when the following conditions are met:
(1) Reduced work tolerance has been determined.
(2) Achievement of the goals of the program are reasonably feasible;
(3) The IWRP (Individualized Written Rehabilitation Plan) or other
plan provides for completion of the program under Chapter 31.
(c) Redetermination of work tolerance. As necessary, but not less
than once yearly, the veteran's work tolerance will be reevaluated. The
rate of pursuit required to meet the standard of full-time pursuit will
be modified if there is either an increase or decrease in the work
tolerance of the veteran.
(d) Payment of allowance. A veteran with a reduced work tolerance
will be paid a subsistence allowance, at the full-time rate for the type
of program being pursued, when the veteran meets the standard for
full-time pursuit established for him or her in the Plan. A veteran
with reduced work tolerance, who elects benefits at the Chapter 34 rate,
will have to meet normal attendance requirements for that chapter,
however.
(e) Determining work tolerance. A VA physician will make all
determinations and redeterminations of work tolerance.
(Authority: 38 U.S.C. 3108(d))
38 CFR 21.314 Pursuit of training under special conditions.
A veteran is required to pursue a rehabilitation program at a rate
which meets the requirement for full- or part-time participation
described in 21.310 and 21.312. However, a veteran may pursue a
rehabilitation program at a lesser rate, if such pursuit is a part of
the veteran's plan. Subsistence allowance is not payable during such
periods.
(Authority: 38 U.S.C. 3108(d))
38 CFR 21.314 Authorization of Subsistence Allowance and Training and Rehabilitation Services
38 CFR 21.320 Awards for subsistence allowance and authorization of
rehabilitation services.
Awards providing for payment of a subsistence allowance and
authorization of services necessary for rehabilitation may be prepared
when an IWRP (Individualized Written Rehabilitation Plan) or other plan
has been completed and other requirements for entrance or reentrance
into a rehabilitation program have been met.
(a) Commencing date of subsistence allowance. The commencing date of
an award of subsistence allowance will be determined under the
provisions of 21.322.
(b) Commencing date of authorization of training and rehabilitation
services. The commencing date for authorization of training and
rehabilitation services is the same as the effective date for awards for
subsistence allowance under provisions of 21.322, except when:
(1) The commencing date for authorization of a program of employment
services is determined under provisions of 21.326;
(2) An earlier commencement date is established in the veteran's plan
or the veteran is entitled to earlier induction under 21.282;
(3) The veteran elects payment at the educational assistance
allowance rate, in which case the commencing date of payment is
determined under provisions applicable to commencement of payment under
Chapter 30.
(Authority: 38 U.S.C. 3108(a), 3108(f); Pub. L. 98-525)
(c) Ending date of subsistence allowance. The ending date of an
award for subsistence allowance will be the earliest of the following
dates:
(1) The ending date provided in the veteran's IWRP or other plan;
(2) The ending date of a period of enrollment as certified by a
training or rehabilitation facility;
(3) The ending date specified in 21.324.
(Authority: 38 U.S.C. 3108)
(d) Ending date for training and rehabilitation services. The ending
date of training and rehabilitation services will be the same as the
termination date for subsistence allowance under paragraph (c) of this
section, except when:
(1) The ending date for a period of employment services is determined
under provisions of 21.326;
(2) A later termination date is established in the veteran's plan;
(3) A veteran has elected payment at the educational assistance rate
paid under Chapter 30. The ending date of the award is determined under
regulations applicable to termination of training under Chapter 30.
(Authority: 38 U.S.C. 3108(a), 3108(f); Pub. L. 98-525)
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989;
57 FR 57108, Dec. 3, 1992)
38 CFR 21.322 Commencing dates of subsistence allowance.
(a) General. VA will determine the commencing date of an award or
increased award of subsistence allowance under this section. VA will
not authorize subsistence allowance for any period prior to the earliest
date for which disability compensation is payable or would be payable
but for the veteran's receipt of retired pay.
(Authority: 38 U.S.C. 3108, 3113)
(b) Entrance or reentrance into vocational rehabilitation, extended
evaluation, independent living services. Except in the case of
retroactive induction into a rehabilitation program, as provided in
21.282, the commencing date of an award of subsistence allowance shall
be the earlier of:
(1) The date the facility requires the veteran to report for
prescribed activities; or
(2) The date training or rehabilitation services begin.
(c) Increases for dependents -- (1) Dependency exists at the time of
entrance or reentrance into a rehabilitation program. A veteran may
have one or more dependents on or before the date he or she enters or
reenters a rehabilitation program. When this occurs, the following
rules apply:
(i) The effective date of the increase will be the date of entrance
or reentrance if:
(A) VA receives the claim for the increase within one year of the
date of entrance or reentrance; and
(B) VA receives any necessary evidence within 1 year of the date VA
requested the evidence and informed the veteran of the time limits
during which this evidence must be submitted. If VA fails to inform the
veteran of these time limits, the period of submission of the evidence
is adjusted in accordance with 21.32 of this part.
(ii) The effective date of the increase will be the date VA receives
notice of the dependents existence if:
(A) VA receives the claim for the increase more than one year after
the date of entrance or reentrance; and
(B) VA receives any necessary evidence within 1 year of the date VA
requested the evidence and informed the veteran of the time limits
during which this evidence must be submitted. If VA fails to inform the
veteran of these time limits, the period for submission of the evidence
is adjusted in accordance with 21.32 of this part;
(iii) The effective date of the increase will be the date VA receives
all necessary evidence if that evidence is received more than one year
from the date VA requested the evidence and informed the veteran of the
time limits during which this evidence must be submitted. If VA fails
to inform the veteran of these time limits, the period for submission of
the evidence is adjusted in accordance with 21.32 of this part.
(2) Dependency arises after entrance or reentrance into a
rehabilitation program. If the veteran acquires a dependent after he or
she enters or reenters a rehabilitation program, the increase will be
effective on the latest of the following dates:
(i) Date of claim. This term means the following listed in order of
their applicability:
(A) Date of the veteran's marriage, or birth of his or her child, or
his or her adoption of a child, if the evidence of the event is received
within one year from the date of the event;
(B) Date notice is received of the dependents's existence if evidence
is received within 1 year from the date VA requested the evidence and
informed the veteran of the time limits during which this evidence must
be submitted. If VA fails to inform the veteran of these time limits,
the period for submission of the evidence is adjusted in accordance with
21.32 of this part.
(C) Date VA receives evidence of the dependent's existence if this
date is more than one year after VA requested this evidence and informed
the veteran of the time limits during which this evidence must be
submitted. If VA fails to inform the veteran of the time limits, the
period for submission of the evidence is adjusted in accordance with
21.32 of this part.
(ii) Date dependency arises -- (3) Increased award not permitted. No
increased award for dependency may be paid prior to the date the law
permits benefits for dependents generally.
(Authority: 38 U.S.C. 3108(b))
(d) Correction of military records. In accordance with the facts
found, but not earlier than the date the change, correction, or
modification was made by the service department, if eligibility of a
veteran arises as the result of correction or modification of military
records under 10 U.S.C. 1552, or change, correction or modification of a
discharge or dismissal under 10 U.S.C. 1553, or other competent military
authority.
(e) Bar to benefits removed by VA. In accordance with the facts
found, but not earlier than the date the change was made by VA, if
eligibility of a veteran arises as the result of review of the evidence
of record regarding the character of discharge by VA, when the veteran's
discharge or dismissal was a bar to benefits under 38 U.S.C. 5301.
(Authority: 38 U.S.C. 3103(b))
(f) Incarcerated veterans. (1) Date of release from Federal, State,
or local penal institution of a veteran incarcerated for conviction of a
felony.
(2) Earlier of the following dates in the case of a veteran residing
in a half-way house or participating in a work-release program as a
result of a felony conviction.
(i) Date of release from the half-way house or work-release program,
or
(ii) Date a veteran becomes obligated to pay part of his or her
living expenses.
(Authority: 38 U.S.C. 3108(g))
(g) Temporary 100 percent award terminated. Date of reduction of a
temporary award of disability compensation at the 100 percent rate
because of hospitalization.
(Authority: 38 U.S.C. 3108(h))
(h) Liberalizing laws and VA issues. In accordance with facts found,
but not earlier than the date of the act or administrative issue.
(Authority: 38 U.S.C. 5113)
Cross-Reference. See 21.260(c) for definition of dependents.
(49 FR 40814, Oct. 18, 1984, as amended at 51 FR 22808, June 23,
1986; 52 FR 42113, Nov. 3, 1987; 55 FR 12821, Apr. 6, 1990)
38 CFR 21.324 Reduction or termination dates of subsistence allowance.
(a) General. The effective date of the reduction of the amount paid
or termination of payment of subsistance allowance will be the earliest
of the dates specified in this section. If an award is reduced, the
reduced rate will be effective the day following the date of termination
of the greater benefit.
(b) Death of a veteran. Date of death, if death occurs while the
veteran is in attendance or authorized leave status; otherwise date of
last attendance.
(c) Death of a dependent. (1) Before October 1, 1982. Last day of
the calendar year in which death occurs, unless the veteran's program is
terminated earlier under other provisions.
(Authority: 38 U.S.C. 5113)
(2) After September 30, 1982. Last day of the month in which death
occurs unless discontinuance is required at an earlier date under other
provisions.
(Authority: 38 U.S.C. 5112(b), 5113)
(d) Divorce -- (1) Before October 1, 1982. Last day of the calendar
year in which divorce occurs, unless the veteran's program is terminated
earlier under other provisions.
(Authority: 38 U.S.C. 5113)
(2) After September 30, 1982. Last day of the month in which divorce
occurs unless discontinuance is required at an earlier date under other
provisions.
(Authority: 38 U.S.C. 5112(b), 5113)
(e) Child -- (1) Marriage -- (i) Before October 1, 1982. Last day of
the month in which the marriage occurs, unless the veteran's program is
terminated earlier under other provisions.
(Authority: 38 U.S.C. 5113)
(ii) After September 30, 1982. Last day of the month in which the
marriage occurs, unless discontinuance is required at an earlier date
under other provisions.
(Authority: 38 U.S.C. 5112(b), 5113)
(2) Age 18. Day preceding the child's 18th birthday.
(3) School attendance.
(i) Last day of the month in which the child ceases attending school;
or
(ii) The day preceding the child's 23rd birthday, whichever is
earlier.
(4) Helplessness. Last day of the month in which 60 days has passed
from VA's notice to the payee that the child's helplessness has ceased.
(f) Interrupted, rehabilitation to the point of employability,
independent living program completed, and extended evaluation completed
status. Last day of attendance, or approved leave status, whichever is
applicable.
(Authority: 38 U.S.C. 5113)
(g) Discontinued. Last day of attendance or approved leave status,
whichever is applicable, except as follows:
(1) If VA places the veteran in ''discontinued'' status following the
veteran's withdrawal from all courses with nonpunitive grades or
following his or her completion of all courses with nonpunitive grades
and the case manager does not find mitigating circumstances, VA will
terminate subsistence allowance effective:
(i) The first date of the term, or
(ii) December 1, 1976, whichever is later.
(2) If VA places the veteran in ''discontinued'' status following a
term in which the grades the veteran receives include both those that
count in the grade point average and nonpunitive grades, and the case
manager does not find mitigating circumstances:
(i) VA will terminate subsistence allowance for courses in which the
veteran receives nonpunitive grades effective the first day of the term
or December 1, 1976, whichever is later.
(ii) VA will terminate subsistence allowance for courses in which the
veteran receives grades that will count in the grade point average
effective the veteran's last day of attendance or approved leave status,
whichever is applicable.
(Authority: 38 U.S.C. 3680(a))
(h) Wages or salary received in apprentice or on-job training. (1)
If the sum of the training wage plus the scheduled subsistence allowance
is more than the journeyman wage when the training commences, the
subsistence allowance will be decreased by VA effective the first day of
the second month following the month in which the veteran enters on-job
training.
(2) Subsequent adjustments will be effective the first day of the
second month following the month in which wages or salary changes are
made which justify the adjustment under provisions of 21.266(e).
(Authority: 38 U.S.C. 3108)
(i) Reduction in rate of pursuit of the program. End of month in
which reduction occurs, except that if the rate of pursuit is reduced as
a result of the veteran's withdrawal from a unit course or courses with
nonpunitive grade(s) or as a result of the veteran's completion of a
unit course or courses with nonpunitive grade(s) ( 21.4200(j)), VA will
reduce subsistence allowance as follows:
(1) If it is determined that there are mitigating circumstances:
(i) Withdrawal with nonpunitive grades: The end of the month or the
end of the term in which the veteran withdraws, whichever is earlier;
if the reduction occurs at the beginning of the term benefits will be
reduced the first day of the term in which the veteran withdraws.
(ii) Completion with nonpunitive grades. No reduction required.
(2) If it is determined there are no mitigating circumstances VA will
reduce the veteran's subsistence allowance effective the first day of
the term in which the veteran withdraws or which the veteran completes
with nonpunitive grades. The term mitigating circumstances means
circumstances beyond the veteran's or serviceperson's control which
prevent him or her from continuously pursuing a rehabilitation program.
The following circumstances are representative of those which are
considered mitigating.
(i) An illness of the program participant;
(ii) An illness or death in the program participant's family;
(iii) An unavoidable change in the veteran's conditions of
employment;
(iv) An unavoidable geographical transfer resulting from the
veteran's employment;
(v) Immediate family or financial obligations beyond the control of
the veteran which are found by VA to require the veteran to suspend
pursuit of the rehabilitation program;
(vi) Discontinuance of the course by the educational institution;
(vii) In the first instance of withdrawal on or after June 1, 1989 by
a program participant from a course or courses with respect to which
such veteran has been paid subsistence allowance under the provisions of
21.260(b), mitigating circumstances shall be considered to exist with
respect to courses totaling not more than six semester hours or the
equivalent thereof;
(viii) Difficulties in obtaining child care or changes in such
arrangements which are beyond the control of the program participant and
which require interruption of the rehabilitation program is order for
the participant to provide or arrange for such care.
(Authority: 38 U.S.C. 3680(a), Pub. L. 100-689)
(j) Severance of service-connection. Last day of the month in which
the severance becomes final.
(Authority: 38 U.S.C. 5113)
(k) Fraud. The later of the following dates:
(1) The beginning date of the award of subsistence allowance, or
(2) The day preceding the date of the fraudulent act.
(Authority: 38 U.S.C. 6103(a))
(l) Error -- (1) Payee error. Effective date of the award of
subsistence allowance or day preceding the act, whichever is later, but
not prior to the date the veteran's entitlement ceases, on an erroneous
award based on an act of commission or omission by a payee with his or
her knowledge.
(2) Administrative error. Except as provided in paragraph (j) of
this section, date of last payment on an erroneous award based solely on
administrative error or an error in judgment by a VA employee.
(m) Treasonable acts, subversive activities. The later of the
following dates:
(1) Beginning date of the award of subsistence allowance, or
(2) Day preceding the date of commission of the treasonable act or
subversive activities for which the veteran is convicted.
(Authority: 38 U.S.C. 5113)
(n) Incarceration in prison or jail -- (1) Felony conviction. If a
veteran's subsistence allowance must be reduced because of incarceration
for a felony conviction under provisions of 21.276, his or her rate of
payment will be reduced the later of:
(i) The date of his or her incarceration in a prison or jail; or
(ii) The commencing date of his or her award as determined by
21.322.
(2) Halfway house or work-release program. The subsistence allowance
of a veteran in a halfway house or work release program as a result of
conviction of a felony will not be reduced under the provisions of
21.276 the date on which the Federal Government or a State or local
government pays all of the veteran's living expenses.
(Authority: 38 U.S.C. 3108(g))
(o) Specialized rehabilitation facility. Date payment for room and
board by VA begins, reduce the rate paid to the amount payable for
dependents.
(Authority: 38 U.S.C. 3108(i))
(p) Termination of subsistence allowance while hospitalized at VA
expense. Date before the beginning date of the increased disability
compensation award, which results in a reduced subsistence allowance
under the provisions of 21.266.
(Authority: 38 U.S.C. 3108(h))
(49 FR 40814, Oct. 18, 1984, as amended at 51 FR 22808, June 23,
1986; 51 FR 25525, July 15, 1986; 55 FR 48843, Nov. 23, 1990)
38 CFR 21.326 Authorization of employment services.
(a) General. Authorization of employment services shall be based
upon the services identified and goals established in an IEAP
(Individualized Employment Assistance Plan) under provisions of 21.88.
The effective dates for the commencement, or termination of such
services will be determined under this section.
(Authority: 38 U.S.C. 3117(a))
(b) Commencing date. The commencing date authorizing a period of
employment services will be the later of:
(1) The date following completion of the period of rehabilitation to
the point of employability; or
(2) The date of the original IEAP.
(Authority: 38 U.S.C. 3107, 3117(a))
(c) Termination of the authorization of employment services.
Authorization for employment services will be terminated the earliest
of:
(1) The last day employment services are provided under the terms of
an IEAP when employment services are interrupted, discontinued, or the
veteran is rehabilitated;
(2) The date the authorization is found to be erroneous because of an
act of omission or commission by the veteran, or with his or her
knowledge;
(3) The last day of the month in which severance of service
connection becomes final;
(4) The day proceding the date of a fraudulent act;
(5) The date preceding the commission of a treasonable or subversive
act for which the veteran is convicted.
(Authority: 38 U.S.C. 3108, 5113)
38 CFR 21.328 Two veteran cases -- dependents.
If both partners in a marriage are veterans, and if each is receiving
either subsistence allowance for a vocational rehabilitation program or
an educational assistance allowance under another VA program, each is
entitled to receive the additional allowances payable for each other and
for their children.
(Authority: 38 U.S.C. 3108(a))
38 CFR 21.330 Apportionment.
(a) General. Where in order, VA will apportion subsistence allowance
in accordance with 3.451 of this title, subject to the limitations of
3.458 of this title. If the veteran is in receipt of benefits at the
Chapter 30 rate, VA will not apportion these benefits.
(Authority: 38 U.S.C. 5307(c); Pub. L. 98-525)
(b) Effective date. The effective date of apportionment will be as
prescribed in 3.400(e) of this title.
(Authority: 38 U.S.C. 5307(c))
(c) Child adopted out of family. Where evidence establishes that a
veteran is the natural parent of a child or children legally adopted
outside of the veteran's family, VA will apportion in favor of the child
or children only that additional amount of subsistence allowance payable
on account of the existence of the child or children. The veteran is
not entitled in his or her own right to the additional amount of
subsistence allowance payable for the child because of the existence of
the child unless the veteran is contributing to the child's support.
(Authority: 38 U.S.C. 5307(c))
(d) Veteran convicted of a felony. The subsistence allowance of a
veteran in a rehabilitation program after October 17, 1980, may not be
apportioned if the veteran is incarcerated because of conviction for a
felony.
(Authority: 38 U.S.C. 3108(g))
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989;
57 FR 57108, Dec. 3, 1992)
38 CFR 21.332 Payments of subsistence allowance.
(a) Eligibility. At the end of the month, VA shall pay to an
eligible veteran enrolled in a rehabilitation program, subsistence
allowance at the rates specified in 21.260 for the type of program
pursued during the month, unless advance payment is approved. VA will
continue payments during those intervals described in 21.270.
(Authority: 38 U.S.C. 3108)
(b) Advance payment criteria. VA will make an advance payment of
subsistence allowance only when:
(1) The veteran specifically requests an advance payment; and
(2) The educational institution at which the veteran is accepted or
enrolled has agreed to, and can carry out, satisfactorily, the
provisions of 38 U.S.C. 3680(d) (4) and (5) pertaining to:
(i) Receipt, delivery or return of advance checks; and
(ii) Certifications of delivery and enrollment.
(c) Advance payment. (1) The amount of advance payment is not to
exceed:
(i) The veteran's subsistence allowance for the month or part of a
month in which his or her course will begin; plus
(ii) The veteran's subsistence allowance for the following month.
(2) Upon application and completion of arrangements for enrollment of
a veteran who meets the criteria for an advance payment, VA shall mail a
check payable to the veteran to the institution for delivery to the
veteran upon registration.
(3) An institution shall not deliver an advance payment check to a
veteran more than 30 days in advance of commencement of his or her
program.
(d) Certification for advance payment. VA will authorize advance
payment upon receipt of the institution's certification of the following
information:
(1) The veteran is eligible for benefits;
(2) The institution has accepted the veteran or he or she is eligible
to continue his or her training;
(3) The veteran has notified the institution of his or her intention
to attend or to reenroll;
(4) The number of semester or clock hours the veteran will pursue;
and
(5) The beginning and ending dates of the enrollment period.
(e) Time of advance payment. VA will authorize advance payment only:
(1) At the beginning of an ordinary school year; or
(2) At the beginning of any other enrollment period which begins
after a break in enrollment of one full calendar month or longer.
(Authority: 38 U.S.C. 3680(d))
(f) Other payments. (1) VA will make all payments other than advance
payments at the end of the month for the veteran's training during that
month.
(2) VA may withhold final payment until:
(i) VA receives certification that the veteran has completed his or
her course; and
(ii) VA makes all necessary adjustments in the veteran's award
resulting from that certification.
(Authority: 38 U.S.C. 3680(g))
(g) Payments for courses which are repeated. VA may pay subsistence
allowance to a veteran who repeats a course under conditions described
in 21.132.
(Authority: 38 U.S.C. 3680(a))
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985)
38 CFR 21.334 Election of payment at the Chapter 30 rate.
(a) Election. When the veteran elects payment of an allowance at the
chapter 30 rate, the effective dates for commencement, reduction and
termination of the allowance shall be in accordance with 21.7130
through 21.7135 and 21.7050 under chapter 30.
(Authority: 38 U.S.C. 1808(f), 1780).
(b) Election of payment at the Chapter 30 rate subsequent to
induction into a rehabilitation program. Election of payment at the
Chapter 30 rate subsequent to induction into training is permissible
under provisions of 21.264 (a) and (b). The effective date of the
election is the latest of the following dates:
(1) The commencing date determined under 21.7131 in the case of a
veteran who has elected payment at the chapter 30 rate; or
(2) The day following the end of the period for which VA paid
tuition, fees or other program charges under this Chapter.
(Authority: 38 U.S.C. 3108(f); Pub. L. 98-525)
(c) Reelection of subsistence allowance subsequent to induction. If
a veteran reelects subsistence allowance under provisions of 21.264(b)
of this part, the effective date of change is earliest of the following:
(1) The date following completion of the term, semester, quarter, or
other period of instruction in which the veteran is currently enrolled;
(2) The veteran's Chapter 30 delimiting date;
(3) The day after exhaustion of Chapter 30 entitlement; or
(4) The day following the date of a VA determination that failure to
approve reelection would prevent the veteran from continuing the
rehabilitation program.
(Authority: 38 U.S.C. 3108(f); Pub. L. 98-525)
(d) Election or reelection during leave or between periods of
instruction -- (1) Payment at the Chapter 30 rate. If an otherwise
eligible veteran elects payment at the Chapter 30 rate during a period
between periods of instruction, the effective date of the election shall
be the first day of the next period of instruction.
(2) Subsistence allowance. If an otherwise eligible veteran reelects
subsistence allowance during leave or between periods of instruction
following election of payment at the Chapter 30 rate, the effective date
of the change will be the date of the reelection or the beginning of the
next period of training, whichever is to the veteran's benefit.
(Authority: 38 U.S.C. 3108(f), Pub. L. 88-525)
(e) Effect of Chapter 34 program termination. (1) Since Chapter 34
benefits are not payable beyond December 31, 1989, any previous election
of benefits at that rate is terminated as of that date;
(2) A veteran entitled to chapter 30 benefits based on his or her
chapter 34 eligibility as of December 31, 1989, and whose election of
chapter 34 rates terminated as of the date under paragraph (e)(1) of
this section must, if the individual desires payment at the chapter 30
rate, elect such payment.
(Authority: 38 U.S.C. 1411(a))
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4284, Jan. 30, 1989,
54 FR 13522, Apr. 4, 1989; 57 FR 57108, Dec. 3, 1992)
38 CFR 21.334 Leaves of Absence
38 CFR 21.340 Introduction.
(a) General. VA may approve leaves of absence under certain
conditions. During approved leaves of absence, a veteran in receipt of
subsistence allowance shall be considered to be pursuing a
rehabilitation program. Leave may be authorized for a veteran during a
period of:
(1) Rehabilitation to the point of employability;
(2) Extended evaluation; or
(3) Independent living services.
(b) Election of subsistence allowance. If a veteran elects to
receive subsistence allowance and payment of rehabilitation services by
VA, he or she may be authorized leave of absence under 21.342 through
21.350.
(c) Election of benefits at the chapter 30 rate. If a veteran elects
to receive a subsistence allowance paid at the chapter 30 rate, the
effect of absences is determined under 21.7139 and 21.7154.
(Authority: 38 U.S.C. 1508(f) and 1510)
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 4285, Jan. 30, 1989;
57 FR 57109, Dec. 3, 1992)
38 CFR 21.342 Leave accounting policy.
(a) Amount of leave. A veteran pursuing one of the programs listed
in 21.340(a) may be authorized up to 30 days of leave by the case
manager during a twelve-month period. The beginning date of the first
twelve-month period is the commencing date of the original award, and
the ending date is twelve months from the beginning date, with
subsequent twelve-month periods running consecutively thereafter.
(b) Additional leave under exceptional circumstances. A veteran in a
program may be authorized up to 15 additional days of leave during the
twelve-month period by the case manager under exceptional circumstances,
such as extended illness or family problems.
(c) Absence. For the purpose of determining when a leave of absence
may be authorized, a veteran who elects subsistence allowance shall be
considered absent during any period in which he or she is:
(1) Not in attendance under the rules and regulations of the
educational institution, rehabilitation center, or sheltered workshop;
(2) Not considered at work under the rules of the training
establishment; or
(3) Not present at a scheduled period of individual instruction.
(d) System of records. An educational institution, training
establishment, rehabilitation center, or other facility or individual
providing training and rehabilitation services under Chapter 31 may
utilize the same system of records to determine absence as the one used
for similarly circumstanced nonveterans.
(e) Change in rate of pursuit. The amount of approved leave is not
affected by the veteran's rate of pursuit of a rehabilitation program.
(f) Charging leave. VA shall charge 1 day of leave for each day or
part of a day of absence from pursuit of a rehabilitation program.
(g) Limitation on carrying leave over to another period. The veteran
may not carry over unused days of leave from one twelve-month period to
another.
(Authority: 38 U.S.C. 3110; Pub. L. 101-237)
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985, as amended
by 56 FR 14649, Apr. 11, 1991)
38 CFR 21.344 Facility offering training or rehabilitation services.
(a) Approval of leaves of absence required. Leaves of absence
normally must be approved in advance by the case manager when the
facility offering training or rehabilitation services arranges for the
leave. The approval of the case manager is required:
(1) During periods in a rehabilitation program identified in
21.342(c); or
(2) A period of hospitalization at VA expense during one of the
periods identified in 21.342(c).
(b) Responsibility of the veteran in obtaining leave. VA will not
authorize leave without a verbal or written request by the veteran, and
the approval of the facility.
(c) Conditions permitting approval of leaves of absence. (1) The
case manager may approve leaves of absence up to a total of 30 days
during a twelve-month period if the facility certifies that the use of
the leave does not interfere materially with the veteran's progress;
(2) An additional period of up to 15 days of leave in the same
twelve-month period under exceptional circumstances may be approved by
the case manager if failure to approve leave will:
(i) Result in personal hardship, or
(ii) Adversely affect the veteran's ability to continue in his or her
rehabilitation program.
(Authority: 38 U.S.C. 3110; Pub. L. 101-237)
(49 FR 40814, Oct. 18, 1984, as amended by 56 FR 14649, Apr. 11,
1991)
38 CFR 21.346 Facility temporarily not offering training or
rehabilitation services.
(a) Approval of leave of absence not required. A veteran may receive
subsistence allowance, during a period when the facility temporarily is
not offering services, without the veteran's being charged with leave
when:
(1) The facility is closed temporarily under an executive order of
the President or due to an emergency situation;
(2) The veteran is pursuing on-job training and he or she receives
holidays established by Federal or State law;
(3) The veteran is pursuing farm cooperative training and is required
in the ordinary day to day conduct of farm business to be absent:
(i) From the farm; or
(ii) From that part of a farm cooperative course which is given at
the educational institution.
(4) The veteran is pursuing a standard college degree; and
(i) There is an interval between consecutive semesters, terms,
quarters or periods of instruction within a certified enrollment period
which does not exceed a full calendar month;
(ii) There is an interval, which does not exceed a full calendar
month between semesters, terms or quarters when the educational
institution only certifies enrollment on a semester, term, or quarter
basis; or
(iii) There is an interval, which does not exceed 30 days, when the
veteran, as part of his or her approved program of vocational
rehabilitation, transfers from one educational institution to another
for the purpose of enrolling in and pursuing a similar program at the
second institution;
(5) The veteran is pursuing a non-college-degree course and there is
a period of up to 5 days per twelve-month period during which the school
offering non-college-degree courses is not operating, because
instructors are attending professional meetings.
(b) Case manager responsibility. The case manager may disapprove
leave under paragraph (a)(4) of this section if:
(1) Approval would result in or lead to use of more than 48 months of
entitlement under Chapter 31, alone; or
(2) Approval would require extension of the scheduled completion date
of the veteran's program.
(c) Approval of leaves of absence required. A veteran, who wishes to
receive subsistence allowance while the facility temporarily is not
offering training under conditions other than those identified in
paragraph (a) of this section, must seek an approved leave of absence
and be charged leave.
(Authority: 38 U.S.C. 3110)
38 CFR 21.348 Leave following completion of a period of training or
rehabilitation services.
(a) Leave following completion of training or rehabilitation
services. Leave may not be approved following completion of a period of
rehabilitation services described in 21.340(a).
(b) Postponement of the date of completion of a period of
rehabilitation services prohibited. The date of completion of the
veteran's program may not be extended for the purpose of allowing the
veteran to use leave.
(Authority: 38 U.S.C. 3110)
38 CFR 21.350 Unauthorized absences.
A veteran who is unable to obtain an authorized leave of absence in
advance may seek to have the unauthorized absence excused.
(a) Excusing unauthorized absences. VA may excuse an unauthorized
absence and make proper charges against the veteran's leave when:
(1) The veteran has absented himself or herself when advance approval
from VA is impracticable; and
(2) Conditions for approval of leave are otherwise met.
(b) Unexcused, unauthorized absences. When an unauthorized absence
is not satisfactorily explained, VA will take necessary action,
including recoupment of subsistence allowance for that period of
absence.
(Authority: 38 U.S.C. 3110)
38 CFR 21.350 Conduct and Cooperation
38 CFR 21.362 Satisfactory conduct and cooperation.
(a) General. The successful development and implementation of a
program of rehabilitation services require the full and effective
participation of the veteran in the rehabilitation process.
(1) The veteran is responsible for satisfactory conduct and
cooperation in developing and implementing a program of rehabilitation
services under Chapter 31;
(2) The staff is responsible for insuring satisfactory conduct and
cooperation on the veteran's part; and
(3) VA staff shall take required action when the veteran's conduct
and cooperation are not satisfactory. (See 21.364)
(b) VA responsibility. VA shall make a reasonable effort to inform
the veteran and assure his or her understanding of:
(1) The services and assistance which may be provided under Chapter
31 to help the veteran maintain satisfactory cooperation and conduct and
to cope with problems directly related to the rehabilitation process,
especially counseling services;
(2) Other services which VR&C staff can assist the veteran in
securing through non-VA programs; and
(3) The specific responsibilities of the veteran in the process of
developing and implementing a program of rehabilitation services,
especially the specific responsibility for satisfactory conduct and
cooperation.
(c) Veteran's responsibility. A veteran requesting or being provided
services under Chapter 31 must:
(1) Cooperate with VA staff in carrying out the initial evaluation
and developing a rehabilitation plan;
(2) Arrange a schedule which allows him or her to devote the time
needed to attain the goals of the rehabilitation plan;
(3) Seek the assistance of VA staff, as necessary, to resolve
problems which affect attainment of the goals of the rehabilitation
plan;
(4) Conform to procedures established by VA governing pursuit of a
rehabilitation plan including:
(i) Enrollment and reenrollment in a course;
(ii) Changing the rate at which a course is pursued;
(iii) Requesting a leave of absence;
(iv) Requesting medical care and treatment;
(v) Securing supplies; and
(vi) Other applicable procedures.
(5) Conform to the rules and regulations of the training or
rehabilitation facility at which services are being provided.
(d) Responsibility for determining satisfactory conduct and
cooperation. VR&C staff with case management responsibility in the
veteran's case will:
(1) Monitor the veteran's conduct and cooperation as necessary to
assure consistency with provisions of paragraph (c) of this section.
(2) Provide assistance which may be authorized under Chapter 31, or
for which arrangements may be made under other programs to enable the
veteran to maintain satisfactory conduct and cooperation.
(Authority: 38 U.S.C. 3111)
38 CFR 21.364 Unsatisfactory conduct and cooperation.
(a) General. If VA determines that a veteran has failed to maintain
satisfactory conduct or cooperation, VA may, after determining that all
reasonable counseling efforts have been made and are found not
reasonably likely to be effective, discontinue services and assistance
to the veteran, unless the case manager determines that mitigating
circumstances exist. In any case in which such services and assistance
have been discontinued, VA may reinstitute such services and assistance
only if the counseling psychologist determines that:
(1) The unsatisfactory conduct or cooperation of such veteran will
not be likely to recur; and
(2) The rehabilitation program which the veteran proposes to pursue
(whether the same or revised) is suitable to such veteran's abilities,
aptitudes, and interests.
(b) Unsatisfactory conduct or cooperation exists. When the case
manager determines that the veteran's conduct and/or cooperation are not
in conformity with provisions of 21.362(c), the case manager will:
(1) Discuss the situation with the veteran;
(2) Arrange for services, particularly counseling services, which may
assist in resolving the problems which led to the veteran's
unsatisfactory conduct or cooperation;
(3) Interrupt the program to allow for more intense efforts, if the
unsatisfactory conduct and cooperation persist. If a reasonable effort
to remedy the situation is unsuccessful during the period in which the
program is interrupted, the veteran's case will be discontinued and
assigned to ''discontinued'' status unless mitigating circumstances are
found. When mitigating circumstances exist the case may be continued in
''interrupted'' status until VA staff determines the veteran may be
reentered into the same or a different program because the veteran's
conduct and cooperation will be satisfactory, or if a plan has been
developed, to enable the veteran to reenter and try to maintain
satisfactory conduct and cooperation. Mitigating circumstances include:
(i) The effects of the veteran's service and nonservice-connected
condition;
(ii) Family or financial problems which have led the veteran to
unsatisfactory conduct or cooperation; or
(iii) Other circumstances beyond the veteran's control.
(Authority: 38 U.S.C. 3111)
38 CFR 21.364 Interregional and Intraregional Travel of Veterans
38 CFR 21.370 Intraregional travel at government expense.
(a) Introduction. VA may authorize transportation expenses for
intraregional travel to a veteran in a rehabilitation program or a
program of employment services for the purposes presented in paragraph
(b) of this section. When approved for purposes stated in paragraph (b)
of this section, authorization of travel is limited to the veteran's
transportation, and does not include transportation for the veteran's
dependents, or for moving personal effects.
(Authority: 38 U.S.C. 111, 3104(a)(13))
(b) Necessary condition for intraregional travel at government
expense. VA may authorize a veteran to travel at government expense
within the regional territory of the VA field station of jurisdiction
when:
(1) VA determines that the travel is necessary in the discharge of
the government's obligation to the veteran; and
(2) The veteran is instructed to travel for any of the following
reasons:
(i) To report to the chosen school or training facility for the
purpose of starting training;
(ii) To report to a prospective employer-trainer for an interview
prior to induction into training, when there is definite assurance in
advance of approving the travel that, upon interview, the employer will
start the veteran in training, if the employer finds the veteran
acceptable, or
(iii) To report to the chosen school for a personal interview prior
to induction into training when:
(A) The school requires the interview as a condition of admission,
(B) There is assurance before the travel is approved that the
veteran's records (school, counseling, etc.) show he or she meets all
basic requirements for induction under 21.282; and
(C) The veteran submits to the school a transcript of his or her high
school credits and a transcript from any school he or she attended
following high school.
(iv) To report to a rehabilitation facility or sheltered workshop;
(v) To return to his or her home from the training or rehabilitation
facility when:
(A) Services are not available for a period of 30 days or more
(including summer vacation periods), and
(B) Travel from his or her home to the training or rehabilitation
facility was at government expense;
(vi) To return to the training or rehabilitation facility from his or
her home, when:
(A) The purpose of the travel is to continue the rehabilitation
program, and
(B) Travel from the training or rehabilitation facility to the
veteran's home was at government expense;
(vii) To return to the point from which he or she was transported at
government expense, upon being placed in ''discontinued'' or
''interrupted'' status for any reason, except abandonment of training by
the veteran without good reason;
(viii) To report to a place of prearranged satisfactory employment
upon completion of vocational rehabilitation for the purpose of
beginning work;
(ix) To return to his or her home from the place of training
following rehabilitation to the point of employability, when suitable
employment is not available;
(x) To return from the place of training to the veteran's prior
location, when VA could have approved travel to the place of training at
government expense, but did not issue the necessary travel
authorization; and
(xi) To report to a place to take a scheduled examination required to
practice the trade or profession for which the veteran has been trained.
This travel shall be limited to points within the state in which the
veteran has pursued his or her training or, if the veteran returned to
the state from which he or she was sent to pursue training, he or she
may be sent at government expense to a place within that state to take
the examination. If there is more than one place within the state at
which the veteran may take the examination, travel shall be limited to
the nearest place.
(Authority: 38 U.S.C. 111)
(c) Approval of intraregional transfer. Intraregional travel must be
approved by the case manager.
(Authority: 38 U.S.C. 3104(a)(13))
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985)
38 CFR 21.372 Interregional transfer at government expense.
(a) Introduction. A veteran may need to transfer from the
jurisdiction of one VA facility to another in order to accomplish
rehabilitation. This section states the conditions which will permit
the transfer to be made at government expense. Authorization of travel
is limited to the veteran's transportation, and does not include
transportation for the veteran's dependents or for moving personal
effects.
(Authority: 38 U.S.C. 111, 3104(a)(13))
(b) Conditions which permit interregional transfers at government
expense. A veteran may be provided travel at government expense when it
has been determined that such travel is necessary to accomplish
rehabilitation. VA will authorize an interregional transfer at
government expense only to allow the veteran:
(1) To enter training in the nearest satisfactory facility if:
(i) The nearest satisfactory facility is within the jurisdiction of
another VA facility; or
(ii) There are no satisfactory facilities within the jurisdiction of
the facility in which the veteran resides.
(2) To enter training in the state in which the veteran has
long-standing family and social ties, and in which he or she plans to
live following rehabilitation;
(3) To report to an employer-trainer when all necessary steps have
been taken to establish an on-job training program;
(4) To report to rehabilitation facility or sheltered workshop;
(5) To return to his or her home from the place of training when:
(i) Training is not available for a period of 30 days or more
(including summer vacation periods), and
(ii) Travel from his or her home to the place of training or
rehabilitation services was at government expense;
(6) To return to the place of training or rehabilitation services
from his or her home, when;
(i) The purpose of the travel is to continue training or
rehabilitation services; and
(ii) Travel from the place of training or rehabilitation services to
the veteran's home was at government expense;
(7) To return to the point from which he or she was transferred at
government expense, upon being assigned to ''discontinued'' or
''interrupted'' status, for any reason, except abandonment of training
by the veteran without good reason;
(8) To report to a place of prearranged satisfactory employment or
for a prearranged employment interview following completion of his or
her program of vocational rehabilitation, when:
(i) There is no satisfactory opportunity for employment in the
veteran's occupation within the jurisdiction of the facility which has
jurisdiction over his or her residence, and
(ii) The veteran has a serious employment handicap.
(9) To return to his or her home, from which he or she was
transferred at government expense to pursue training, when, upon
completion of his or her course, satisfactory employment is not
available;
(10) To return to the location from which he or she traveled without
authorization because VA did not issue the necessary travel
authorization on a timely basis.
(Authority: 38 U.S.C. 111)
(c) Approval of interregional transfer. Interregional travel must be
approved by the case manager.
(Authority: 38 U.S.C. 3104(a)(13))
38 CFR 21.374 Authorization for travel of attendants.
(a) Travel for attendants. The services of an attendant to accompany
a veteran while traveling for rehabilitation purposes may be provided
when such services are necessitated by the severity of the veteran's
disability. Attendants may only be used to enable a veteran to attend
appointments for initial evaluation, counseling, or intraregional or
interregional travel at government expense under 21.370 and 21.372.
(Authority: 38 U.S.C. 111)
(b) Attendants not employed by the Federal government. (1) VA may
authorize persons not in regular civilian employment of the Federal
government to act as attendants. Payment of travel expenses for
attendants will be authorized on the same basis as for the veteran the
attendant is accompanying. VA:
(i) Will furnish the attendant with common-carrier transportation,
meal and lodging expenses; or
(ii) Will grant the attendant a mileage allowance in lieu of
furnishing the assistance cited in paragraph (b)(1)(i) of this section.
(2) VA will not pay the attendant a fee if he or she is a relative of
the veteran. A relative, for this purpose, is a person who by blood or
marriage is the veteran's
(i) Spouse,
(ii) Parent,
(iii) Child,
(iv) Brother,
(v) Sister,
(vi) Uncle,
(vii) Aunt,
(viii) Niece, or
(ix) Nephew.
(c) Attendant employed by the Federal government. (1) VA may
authorize a person in the regular civilian employment of the Federal
government to act as an attendant. When assigned, the attendant:
(i) Will be entitled to transportation and expenses, or
(ii) May be allowed per diem in place of subsistence in accordance
with the provisions of the Federal Travel Regulations (5 U.S.C. Chapter
57).
(2) VA will pay no fee to civilian employees of the Federal
government who act as attendants.
(49 FR 40814, Oct. 18, 1984; 50 FR 9622, Mar. 11, 1985)
38 CFR 21.376 Travel expenses for initial evaluation and counseling.
When VA asks a disabled veteran to report to a designated place for
an initial evaluation, reevaluation or counseling (including personal or
vocational adjustment counseling), the veteran will travel to and from
the place of evaluation and counseling at government expense. When a
veteran, because of a severe disability, requires the services of an
attendant while traveling, VA will authorize payment of travel expenses
for the attendant under the provisions of 21.374.
(Authority: 38 U.S.C. 111)
38 CFR 21.376 Personnel Training and Development
38 CFR 21.380 Establishment of qualifications for personnel providing
assistance under Chapter 31.
(a) General. Notwithstanding any other provision of law or
regulation, VA shall establish qualification standards for VBA personnel
providing evaluation, rehabilitation, and case management services to
eligible veterans under chapter 31, including:
(1) Counseling psychologists;
(2) Vocational rehabilitation specialists; and
(3) Other staff providing professional and technical assistance.
(b) Rehabilitation Act of 1973. VA shall consider qualification
standards established for comparable personnel under the Rehabilitation
Act of 1973, when setting agency standards.
(Authority: 38 U.S.C. 3118(c))
38 CFR 21.382 Training and staff development for personnel providing
assistance under Chapter 31.
(a) General. VA shall provide a program of ongoing professional
training and development for staff of the VR&E Service engaged in
providing rehabilitation services under chapter 31. The objective of
such training shall be to insure that rehabilitation services for
disabled veterans are provided in accordance with the most advanced
knowledge, methods, and techniques available for the rehabilitation of
disabled persons. The areas in which training and development services
may be provided to enhance staff skills include:
(1) Evaluation and assessment:
(2) Medical aspects of disability;
(3) Psychological aspects of disability;
(4) Counseling theory and techniques;
(5) Personal and vocational adjustment;
(6) Occupational information;
(7) Placement processes and job development;
(8) Special considerations in rehabilitation of the seriously
disabled;
(9) Independent living services;
(10) Resources for training and rehabilitation; and
(11) Utilizing research findings and professional publications.
(Authority: 38 U.S.C. 3118)
(b) Training and development resources. For the purpose of carrying
out the provisions of paragraph (a) of this section VA may:
(1) Employ the services of consultants;
(2) Make grants to and contract with public and private agencies,
including institutions of higher learning, to conduct workshop and
training activities;
(3) Authorize individual training at institutions of higher learning
and other appropriate facilities; and
(4) Utilize chapter 41 of title 5, U.S.C., and related instructions
to provide training and staff development activities on a group and
individual basis.
(Authority: 38 U.S.C. 3118(b))
(c) Interagency coordination. VA shall coordinate with the
Commissioner of the Rehabilitation Services Administration and the
Assistant Secretary for Veterans' Employment in planning and carrying
out personnel training in areas of mutual programmatic concern.
(Authority: 38 U.S.C. 3118(c))
38 CFR 21.382 Rehabilitation Research and Special Projects
38 CFR 21.390 Rehabilitation research and special projects.
(a) General. VA shall carry out an ongoing program of activities for
the purpose of advancing the knowledge, methods, techniques, and
resources available for use in rehabilitation programs for veterans.
For this purpose, VA may conduct research and development, provide
support for research and development, or both conduct and provide
support for the development and conduct of:
(1) Studies and research concerning the psychological, educational,
social, vocational, industrial, and economic aspects of rehabilitation;
and
(2) Projects which are designed to increase the resources and
potential for accomplishing the rehabilitation of disabled veterans.
(Authority: 38 U.S.C. 3119(a))
(b) Grants. VA may make grants to, or contract with, public on
nonprofit agencies, including institutions of higher learning, to carry
out the provisions of paragraph (a) of this section.
(Authority: 38 U.S.C. 3119(b))
(c) Research by VR&E (Vocational Rehabilitation and Education)
Service. Research by the staff of the VR&E Service directed to problems
affecting service delivery, initiation and continuation in
rehabilitation programs, and other areas directly affecting the quality
of service to veterans being provided assistance under Chapter 31 shall
be encouraged.
(Authority: 38 U.S.C. 3119(a))
(d) Interagency coordination. VA shall cooperate with the
Commissioner of the Rehabilitation Services Administration and the
Director of the National Institute of Handicapped Research in the
Department of Education, the Assistant Secretary for Veterans'
Employment in the Department of Labor, and the Secretary of Health and
Human Services regarding rehabilitation studies, research, and special
projects of mutual programmatic concern.
(Authority: 38 U.S.C. 3119(c))
38 CFR 21.390 Veterans' Advisory Committee on Rehabilitation
38 CFR 21.400 Veterans' Advisory Committee on Rehabilitation.
(a) General. The Secretary shall appoint an advisory committee to be
known as the Veterans' Advisory Committee on Rehabilitation.
(b) Purpose. The purposes of the Veterans' Advisory Committee on
Rehabilitation, hereafter referred to as the committee, are to:
(1) Assess the rehabilitation needs of service and
nonservice-disabled veterans; and
(2) Review the programs and activities of VA designed to meet such
needs;
(Authority: 38 U.S.C. 3121(c))
(c) Members. The committee shall include:
(1) Members of the general public;
(2) Appropriate representation of veterans with service-connected
disabilities; and
(3) Persons who have distinguished themselves in the public and
private sectors in the fields of rehabilitation, and employment and
training programs.
(d) Members terms. The Secretary shall appoint members of the
committee for three-year terms. Members may be reappointed for
additional three-year terms.
(e) Chairperson. The Secretary will designate one of the members of
the committee to chair the committee.
(f) Ex-officio members. The committee shall also include ex-officio
members named by the following agencies. The ex-officio members shall
include one representative from:
(1) The Veterans Health Services and Research Administration;
(2) The Veterans Benefits Administration;
(3) The Rehabilitation Services Administration and one from the
National Institute for Handicapped Research of the Department of
Education; and
(4) The Assistant Secretary of Labor for Veterans' Employment of the
Department of Labor.
(Authority: 38 U.S.C. 3121(a))
38 CFR 21.402 Responsibilities of the Veterans' Advisory Committee on
Rehabilitation.
(a) Consultation with the Secretary. The Secretary shall regularly,
but not less than twice yearly, consult with and seek the advice of the
committee with respect to the administration of veterans' rehabilitation
programs authorized under Title 38, United States Code.
(b) Submission of an annual report. The committee shall:
(1) Submit to the Secretary an annual report on the rehabilitation
programs and activities of the VA; and
(2) Submit such other reports and recommendations to the Secretary as
the committee determines appropriate.
(c) Contents of the committee's annual report. The committee's
annual report shall include:
(1) An assessment of the rehabilitation needs of veterans; and
(2) A review of the programs and activities of VA designed to meet
needs identified in paragraph (c)(1) of this section.
(d) Secretary's annual report. The findings of the committee shall
be incorporated in the Secretary's annual report submitted to the
Congress under 38 U.S.C. 529. In addition the Secretary shall submit,
together with this annual report, a copy of all reports and
recommendations of the committee submitted to the Secretary since the
previous annual report was submitted to the Congress.
(Authority: 38 U.S.C. 3121(c))
38 CFR 21.402 Additional Administrative Consideration
38 CFR 21.410 Delegation of authority.
Authority is delegated to the Chief Benefits Director, and to
supervisory or non-supervisory personnel within the jurisdiction of the
Vocational Rehabilitation and Education Service designated by the Chief
Benefits Director, to make findings and decisions under 38 U.S.C.
Chapter 31 and the applicable regulations, precedents and instructions,
as to rehabilitation services for disabled veterans.
(Authority: 38 U.S.C. 512(a))
Cross-Reference: See 21.4001 Delegation of authority.
38 CFR 21.412 Finality of decisions.
(a) Facility of original jurisdiction. The decision of a VA facility
in a given veteran's case:
(1) Will be final and binding upon all field stations of VA as to
conclusions based on evidence on file at that time; and
(2) Will not be subject to revision on the same factual basis except
by duly constituted appellate authorities or except as provided in
21.410 and 21.414. (See 19.153, 19.154, and 19.155.
(Authority: 38 U.S.C. 512(a), 7103)
(b) Adjudicative determinations. Current determinations of line of
duty, character of discharge, relationship, and other pertinent elements
affecting eligibility for training and rehabilitation services or
payment of subsistence allowance under Chapter 31, made by an
adjudicative activity by application of the same criteria and based on
the same facts, are binding upon all other adjudicative activities in
the absence of clear and unmistakable error.
(Authority: 38 U.S.C. 512(a))
38 CFR 21.414 Revision of decision.
The revision of a decision on which an action is based is subject to
the following regulations:
(a) Clear and unmistakable error, 3.105(a);
(b) Difference of opinion, 3.105(b);
(c) Character of discharge, 3.105(c);
(d) Severance of service-connection, 3.105(d);
(e) Reduction to less than compensable evaluation, 3.105(e). (See
21.48, 21.322, and 21.324)
(Authority: 38 U.S.C. 5112)
38 CFR 21.414 Informing the Veteran
38 CFR 21.420 Informing the veteran.
(a) General. VA will inform a veteran in writing of findings
affecting receipt of benefits and services under Chapter 31. This
includes veterans:
(1) Requesting benefits and services; or
(2) In receipt of benefits and services.
(b) Notification. (1) Each notification should include the decision
or finding, the reasons, including fact and law, for the decision, the
effective date of the decision or finding; and
(2) The veteran's appeal rights, if any.
(c) Adverse action. An adverse action is one, other than an interim
action such as a suspension of benefits pending development, which:
(1) Denies Chapter 31 benefits, when such benefits have been
requested;
(2) Reduces or otherwise diminishes benefits being received by the
veteran; or
(3) Terminates receipt of benefits for reasons other than scheduled
interruptions which are a part of the veteran's plan.
(d) Prior notification of adverse action. VA shall give the veteran
a period of at least 30 days to indicate his or her disagreement with an
adverse action other than one which arises as a consequence of a change
in training time or other such alteration in circumstances. If the
veteran disagrees, he or she shall be given the opportunity, before
appealing the adverse action as provided in 21.59 of this part, to:
(1) Meet informally with a representative of VA;
(2) Review the basis for VA decision, including any relevant written
documents or material; and
(3) Submit to VA any material which he or she may have relevant to
the decision.
(Authority: 38 U.S.C. 3102)
(49 FR 40814, Oct. 18, 1984, as amended at 54 FR 40872, Oct. 4, 1989)
38 CFR 21.422 Reduction in subsistence allowance following the loss of
a dependent.
(a) Notice of reduction required when a veteran loses a dependent.
(1) Except as provided in paragraph (a)(2) of this section, VA will not
reduce an award of subsistence allowance following the veteran's loss of
a dependent unless:
(i) VA has notified the veteran of the adverse action, and
(ii) VA has provided the veteran with a period of 60 days in which to
submit evidence for the purpose of showing that subsistence allowance
should not be reduced.
(2) When the reduction is based solely on written, factual,
unambiguous information as to dependency provided by the veteran or his
or her fiduciary with knowledge or notice that the information would be
used to determine the monthly rate of subsistence allowance;
(i) VA is not required to send a pre-reduction notice as stated in
paragraph (a)(1) of this section, but;
(ii) VA will send notice contemporaneous with the reduction in
subsistence allowance.
(Authority: 38 U.S.C. 5112, 5113)
(b) Pre-reduction notice. Where a reduction in subsistence allowance
is proposed by reason of information concerning dependency received from
a source other than the veteran, VA will:
(1) Prepared a proposal for the reduction of subsistence allowance,
setting forth material facts and reasons;
(2) Notify the veteran at his or her latest address of record of the
proposed action;
(3) Furnish detailed reasons for the proposed reduction;
(4) Inform the veteran that he or she has an opportunity for a
predetermination hearing, provided that VA receives a request for such a
hearing within 30 days from the date of the notice; and
(5) Give the veteran 60 days for the presentation of additional
evidence to show that the subsistence allowance should be continued at
its present level.
(Authority: 38 U.S.C. 5112, 5113)
(c) Predetermination hearing. (1) If VA receives a timely request
for a predetermination hearing as indicated in paragraph (b)(4) of this
section:
(i) VA will notify the veteran in writing of the date, time and place
for the hearing; and
(ii) Payments of subsistence allowance will continue at the
previously established level pending a final determination concerning
the proposed reduction.
(2) The hearing will be conducted by a VA employee who:
(i) Did not participate in the preparation of the proposal to reduce
the veteran's subsistence allowance, and
(ii) Will bear the decision-making responsibility.
(Authority: 38 U.S.C. 5112, 5113)
(d) Final action. VA will take final action following the
predetermination procedures specified in paragraph (c) of this section.
(1) If a predetermination hearing was not requested or if the veteran
failed to report for a scheduled predetermination hearing, the final
action will be based solely upon the evidence of record at the
expiration of 60 days.
(2) If a predetermination hearing was conducted, VA will base final
action upon:
(i) Evidence presented at the hearing;
(ii) Evidence contained in the claims file at the time of the
hearing; and
(iii) Any additional evidence obtained following the hearing pursuant
to necessary development.
(3) Whether or not a predetermination hearing was conducted, a
written notice of the final action shall be issued to the veteran
setting forth the reasons for the decison, and the evidence upon which
it is based. The veteran will be informed of his or her appellate
rights and right of representation. (For information concerning the
conduct of the hearing see 3.103 (c) and (d) of this chapter).
(4) When a reduction of subsistence allowance is found to be
warranted following consideration of any additional evidence submitted,
the effective date of the reduction or discontinuance shall be as
specified under the provisions of 21.324 of this part.
(Authority: 38 U.S.C. 5112, 5113)
(54 FR 40872, Oct. 4, 1989)
38 CFR 21.422 Accountability
38 CFR 21.430 Accountability for authorization and payment of training
and rehabilitation services.
(a) General. VA shall maintain policies and procedures which provide
accountability in the authorization and payment of program costs for
training and rehabilitation services. The procedures established under
this section are applicable to all program costs except subsistence
allowance (or the optional allowance at Chapter 34 rates). Policies and
procedures governing payment of subsistence allowance are governed by
21.260 through 21.276, and 21.320 through 21.334.
(b) Determining necessary costs for training and rehabilitation
services. The estimates of program costs during a calendar year or
lesser period shall be based upon the services necessary to carry out
the veteran's rehabilitation plan during that period ( 21.80 through
21.98). The estimates will be developed by the VBA case manager. If
additional approval is required, the VBA case manager shall secure such
additional approval prior to authorization of services.
(c) Review of program costs by the Director, Vocational
Rehabilitation and Education (VR&E) Service. The Director, VR&E Service
or designee will review the program costs for the types of training and
rehabilitation services listed in paragraphs (c)(1) through (c)(3) of
this section when the case manager's estimate of program costs for a
calendar year exceeds $25,000. The rehabilitation plan may not be
signed nor any expenditures made or authorized until the review is
completed and the station receives written approval of program costs.
The types of services subject to review by the Director, VR&E Service or
designee are:
(1) Providing supplies to help establish a small business;
(2) A period of extended evaluation; or
(3) A program of independent living services.
(Authority: 38 U.S.C. 3115(a)(4))
(49 FR 40814, Oct. 18, 1984, as amended at 51 FR 45767, Dec. 22,
1986; 55 FR 25975, June 26, 1990)
Cross-References: See 21.156. Other incidental goods and services.
21.258. Special assistance for veterans in self-employment.
38 CFR 21.430 Subpart B -- Veterans' Educational Assistance Under 38
U.S.C. Chapter 34
Authority: 72 Stat. 1114, 80 Stat. 12 (38 U.S.C. 501, 3451-3493).
Editorial Note: The regulations formerly appearing under this
subpart were revoked at 30 FR 14103, Nov. 9, 1965. That order provided
in part, ''these regulations remain in force insofar as they are
pertinent to any problems, appeals, litigation, or determinations of
liability of educational institutions or training establishments for
overpayments under 38 U.S.C. 1666.''
38 CFR 21.430 General
38 CFR 21.1020 Educational assistance.
As used in subparts B and D of this part, references to educational
assistance, programs and courses include apprentice or other on-the-job
training pursued in a training establishment as defined in 21.4200(c).
(a) General. A program of education may be authorized for a veteran
whose service meets the requirements of 21.1040.
(b) 45 Months limitation. Educational assistance may not exceed a
period of 45 months, or the equivalent in part-time training, except as
specified in 21.1041.
(c) Training in a foreign country. A course to be pursued at a
school not located in a State may not be approved except under the
circumstances outlined in 21.4260.
(31 FR 6771, May 6, 1966, as amended at 32 FR 5271, Mar. 29, 1967;
32 FR 13402, Sept. 23, 1967; 43 FR 35288, Aug. 9, 1978)
38 CFR 21.1021 Definitions.
(a) Eligible veteran or veteran means a veteran whose service meets
the requirements of 21.1040. Unless otherwise specifically identified
the terms include a person on active duty who has basic eligibility for
educational assistance under the provisions of 21.1040(e).
(b) Active duty means active duty as defined in 3.6(b), except
(b)(4) of this chapter. It also includes the initial period of active
duty for training in the Reserves or National Guard pursuant to section
511(d), Title 10 U.S.C., served subsequent to January 31, 1955 provided
that at some time subsequent to the completion of such period of active
duty for training the veteran serves on active duty for a consecutive
period of 1 year or more (excluding service as a cadet or midshipman at
one of the service academies). (38 U.S.C. 3452(a)(3), 3482(b)). See
21.1040, 21.1042, and 21.4136. This term does not include periods of
excess leave without pay.
(c) State means each of the several States, Territories, and
possessions of the United States, the District of Columbia, the
Commonwealth of Puerto Rico and the Canal Zone.
(Authority: 38 U.S.C. 101(20))
(d) Educational assistance allowance includes training assistance
allowance based on apprentice or other on-the-job training.
(Authority: 38 U.S.C. 3484)
(e) Unit means not less than one hundred and twenty 60-minute hours
or their equivalent of study in any high school subject in 1 academic
year.
(Authority: 38 U.S.C. 3688)
Cross Reference: Measurement of courses. See 21.4270(a).
(31 FR 6771, May 6, 1966, as amended at 35 FR 9812, July 17, 1970;
40 FR 31758, July 29, 1975; 44 FR 62494, Oct. 31, 1979)
38 CFR 21.1022 Nonduplication -- programs administered by VA.
(a) Chapters 32 and 34. A person who is eligible for educational
assistance under Chapter 34 is not eligible for educational assistance
under Chapter 32. Certain veterans who are eligible for educational
assistance under Chapter 34 may waive that entitlement in order to
receive educational assistance under Chapter 32. See 21.1040(f).
(Authority: 38 U.S.C. 3202(1))
(b) Chapter 34 and other programs administered by VA. An individual
may not receive educational assistance allowance under 38 U.S.C. chapter
34 concurrently with benefits under any of the provisions of law listed
in this paragraph. If a veteran is eligible for educational assistance
under 38 U.S.C. chapter 34 and any of the provisions of law listed in
this paragraph, he or she must elect which benefit he or she wishes to
receive for the program of education the veteran wishes to pursue.
These provisions of law are:
(Authority: 38 U.S.C. 3681; Pub. L. 99-576)
(1) 38 U.S.C. chapter 31,
(2) 38 U.S.C. chapter 35,
(3) 10 U.S.C. chapter 107,
(4) Section 903 of the Department of Defense Authorization Act, 1981,
(5) The Hostage Relief Act of 1980,
(6) 10 U.S.C. chapter 106, or
(7) 38 U.S.C. chapter 30.
(Authority: 38 U.S.C. 3681; Pub. L. 99-576)
(50 FR 27826, July 8, 1985, as amended at 51 FR 16315, May 2, 1986;
54 FR 33885, Aug. 17, 1989)
38 CFR 21.1025 Nonduplication; Federal programs.
Educational assistance is subject to the restrictions contained in
21.4025 with respect to a veteran who is pursuing a course of education
or training under a Federal program.
(Authority: 38 U.S.C. 3681)
(31 FR 6771, May 6, 1966; 31 FR 11454, Aug. 31, 1966)
38 CFR 21.1025 Claims
38 CFR 21.1030 Claims.
The veteran must file a specific claim for educational assistance
allowance in the form prescribed by the Administrator. Servicepersons
must consult with their service education officer before applying for
educational assistance.
(Authority: 38 U.S.C. 3471)
(48 FR 37971, Aug. 22, 1983)
38 CFR 21.1031 Informal claims.
(a) The Department of Veterans Affairs will consider any
communication from a veteran, an authorized representative or a Member
of Congress to be an informal claim, if it indicates an intent to apply
for educational assistance. If the veteran has not filed a formal
claim, the Department of Veterans Affairs will send him or her an
application form when it receives an informal claim. If the Department
of Veterans Affairs receives the application form within 1 year after
the date it was sent to the veteran, the Department of Veterans Affairs
will consider it filed on the date of receipt of the informal claim.
(Authority: 38 U.S.C. 3471)
(b) The act of enrolling in an approved school does not in itself
constitute an informal application.
(31 FR 6771, May 6, 1966, as amended at 48 FR 37971, Aug. 22, 1983)
38 CFR 21.1032 Time limits.
The provisions of this section are applicable to original
applications, formal or informal, and to applications for increased
educational assistance allowance because of a dependent.
(Authority: 38 U.S.C. 3471)
(a) Completion of claim. The Department of Veterans Affairs will
consider a claim to be abandoned when the Department of Veterans Affairs
requests evidence in connection with a claim, and the veteran does not
furnish the evidence within 1 year after the date of the request. After
the expiration of 1 year, the Department of Veterans Affairs will not
take further action unless a new claim is received.
(Authority: 38 U.S.C. 5103(a))
(b) New claim. After the claim is abandoned, any subsequent
communication which is an informal claim is a new application. The date
of receipt of the communication is the date of application.
(Authority: 38 U.S.C. 3471)
(c) Failure to furnish claim or notice of time limit. (1) VA's
failure to furnish any form or information concerning the right to file
a claim or to furnish notice of the time limit for the filing of a claim
will not extend the periods allowed for these actions.
(2) VA's failure to furnish a veteran or serviceperson notice of the
time limit within which evidence must be submitted to perfect a claim,
or notice of the time limit within which to challenge an adverse VA
decision shall extend the time limit for such action in accordance with
the provision of 3.110 of this chapter.
(Authority: 38 U.S.C. 5101, 5113)
(d) Time limit for filing a claim for an extended period of
eligibility. A claim for an extended period of eligibility as described
in 21.1043 must be received by the Department of Veterans Affairs by
the latest of the following dates:
(1) October 17, 1981,
(Authority: 38 U.S.C. 3462(a))
(2) One year from the date on which the veteran's original period of
eligibility ended,
(3) One year from the date on which the veteran's physical or mental
disability ceased to prevent him or her from beginning or resuming the
veteran's chosen program of education.
(Authority: 38 U.S.C. 3462)
Cross References: Due process; procedural and appellate rights with
regard to disability and death benefits and related relief. See 3.103
of this chapter.
Computation of time limit. See 3.110 of this chapter.
(38 FR 14930, June 7, 1973, as amended at 39 FR 43220, Dec. 11, 1974;
44 FR 62494, Oct. 31, 1979; 45 FR 67092, Oct. 9, 1980; 48 FR 37971,
Aug. 22, 1983; 54 FR 28676, July 7, 1989)
38 CFR 21.1032 Eligibility and Entitlement
38 CFR 21.1040 Basic eligibility.
Basic eligibility for educational assistance for persons training
under Chapter 34, Title 38 U.S.C., including Chapter 36 to the extent
applicable, is subject to the following requirements:
(a) Service. An eligible veteran is a person with active duty
service, including travel time which meets the requirements of
3.6(b)(6) of this chapter, who has either:
(1) Served on active duty (including active duty for training that
qualifies as active duty under 21.1021(b)) for a continuous period of
181 days or more, any part of which occurred after January 31, 1955, and
before January 1, 1977.
(Authority: 38 U.S.C. 3202(1))
(2) Served on active duty for a continuous period of 181 days or
more, as a result of a contract with the Armed Forces in a program such
as the DEP (Delayed Enlistment Program), or an ROTC (Reserve Officer's
Training Corps) program for which a person enlisted in, or was assigned
to, a reserve component prior to January 1, 1977, any part of which
period of active duty commenced within 12 months after January 1, 1977,
or
(3) Served on active duty for a period of less than 181 days any part
of which period was performed, either after January 31, 1955 and before
January 1, 1977 or if pursuant to a contract as provided in paragraph
(a)(2) of this section, after January 1, 1977 and was discharged or
released because of a service-connected disability.
(Authority: 38 U.S.C. 3452)
(b) Periods excluded. In computing the 181 days service, there will
be excluded any period during which he or she:
(1) Was assigned full time by the service department to a civilian
school for a course of education which was substantially the same as
established courses offered to civilians.
(2) Served as a cadet or midshipman at one of the service academies,
or
(3) Is not entitled to credit for service for the periods of time
specified in 3.15 of this chapter.
(Authority: 38 U.S.C. 3202(1), 3452)
(c) Periods excluded; Korean conflict veterans. Where a veteran has
received education or training under the Veterans' Readjustment
Assistance Act of 1952, Title II, or 38 U.S.C. Chapter 33 (as in effect
before February 1, 1965) as a Korean conflict veteran based on service
which extended beyond January 31, 1955, the months of service after
January 31, 1955, which were previously used to establish eligibility
for the education or training received will be excluded in determining
the period of entitlement for educational assistance under Chapter 34.
(d) Discharge or release. (1) The veteran must have received an
unconditional discharge or release under conditions other than
dishonorable from the period of service on which eligibility is based.
(2) The Department of Veterans Affairs will consider that the veteran
has received an unconditional discharge or release if
(i) The veteran was eligible for complete separation from active duty
on the date a discharge or release was issued to him or her, or
(ii) The provisions of 3.13(c) of this chapter are met. See also
3.12 of this chapter on character of discharge.
(Authority: 38 U.S.C. 101)
(e) Persons on active duty. Educational assistance may be afforded a
person while on active duty if he or she:
(1) Has not waived eligibility through election to receive
educational assistance under 38 U.S.C. Chapter 32 (as provided in
paragraph (f) of this section), and
(2) Meets the requirements applicable to a discharged veteran under
paragraphs (a) and (b) of this section, and, if the serviceperson has
had a previous period of active duty upon which his or her eligibility
is based, meets the requirements applicable to a discharged veteran
under paragraph (d) of this section.
(f) Waiver of eligibility through election to receive educational
assistance under 38 U.S.C. Chapter 32. (1) A veteran who is eligible
for educational assistance under 38 U.S.C. Chapter 34 may waive that
eligibility through making an election to receive educational assistance
under 38 U.S.C. Chapter 32. The veteran can make that election only if
he or she --
(i) Served a period of active duty for training for at least 181
consecutive days at least 1 day of which was before January 1, 1977, and
(ii) Began the qualifying period of active duty of 1 consecutive year
or more after December 31, 1976.
(2) If the veteran makes an election and negotiates a check for
educational assistance under 38 U.S.C. Chapter 32, the veteran's
election is irrevocable. He or she is no longer eligible for
educational assistance under 38 U.S.C. Chapter 34.
(Authority: 38 U.S.C. 3202(1), 3452)
Cross References: Duty periods. See 3.6(b) of this chapter.
Persons included. See 3.7 of this chapter.
(31 FR 6771, May 6, 1966, as amended at 34 FR 840, Jan. 18, 1969; 43
FR 35288, Aug. 9, 1978; 45 FR 59312, Sept. 9, 1980; 50 FR 27826, July
8, 1985)
38 CFR 21.1041 Periods of entitlement.
(a) General. (1) A veteran with less than 18 months active duty
service or a person on active duty who meets the requirements of
21.1040 will be entitled to full-time educational assistance for a
period not in excess of 45 months computed on the basis of 1 1/2 months
(or the equivalent in part-time educational assistance) for each month
or fraction of a month of service on active duty on or after February 1,
1955, up to and including the date of the veteran's first discharge or
release after December 31, 1976, if he or she was in the active military
service on December 31, 1976, or has eligibility as provided in
21.1040(a)(2). First discharge or release means the first such discharge
or release wherein the person is eligible for complete separation from
active duty. There will be excluded from the period of entitlement the
periods specified in 21.1040 (b) and (c).
(2) A veteran who has served a continuous period of not less than 18
months of active duty on or after February 1, 1955, and who has been
released from such service under conditions that satisfied his or her
active duty obligation, will be entitled to full-time educational
assistance for a period of 45 months (or the equivalent in part-time
educational assistance). Service on or after January 1, 1977, may be
included up to and including the date of the veteran's first discharge
or release after December 31, 1976, if he or she was in the active
military service on December 31, 1976, or has eligibility based upon
section 3452(a)(1)(B), Title 38 U.S.C. ( 21.1040(a)(2)). The periods
specified in 21.1040(b) will be excluded in computing the 18 months
period.
(3) The veteran may use his or her entitlement at any time during the
10-year period, including any applicable extension of it, determined
under 21.1042 and 21.1043, but in no event shall education or training
be afforded a veteran under Chapter 34 or 36 after December 31, 1989.
It is not required that the entitlement time be used in consecutive
months.
(Authority: 38 U.S.C. 3462(a)(1))
(4) The 45 months limitation may be exceeded when the Department of
Veterans Affairs authorizes an extension under paragraph (d) of this
section, or when the Department of Veterans Affairs makes no charge
against entitlement, as provided in 21.1045(a) because the veteran,
serviceperson or eligible person is pursuing a course at a secondary
level under the Program of Special Assistance for the Educationally
Disadvantaged.
(b) Prior Department of Veterans Affairs training. The period of
entitlement for educational assistance when added to education or
training received under any laws cited in 21.4020 will not exceed 48
months of full-time educational assistance, except as provided in
paragraph (a)(4) of this section. The Department of Veterans Affairs
will compute a reduction in the period of entitlement because of prior
training as provided in paragraph (c) of this section.
(Authority: 38 U.S.C. 3462)
(c) Reduction for prior Department of Veterans Affairs training.
Where the period of entitlement is subject to reduction by reason of
prior training, the Department of Veterans Affairs will convert the
period remaining to months and days after subtracting the period of
prior training.
(Authority: 38 U.S.C. 3695)
(d) Extension. The period of entitlement, including the 45-months
period, may be extended, but not beyond the delimiting date specified in
21.1042 and 21.1043:
(Authority: 38 U.S.C. 3462(a)(1))
(1) To the end of a term, quarter or semester in a school regularly
operated on a term, quarter or semester system, when the period of
entitlement ends during the term, quarter or semester.
(2) When the period of entitlement ends after more than half the
course has been completed the veteran's or eligible person's period of
entitlement will be extended:
(i) In a course consisting exclusively of flight training:
(A) To the end of the course or
(B) The additional amount of instruction that $846 will provide
effective October 1, 1980, and $888 will provide effective January 1,
1981, whichever is less;
(ii) In a course pursued exclusively by correspondence:
(A) To the end of the course or
(B) The additional amount that $1,053 will provide, whichever is
less;
(Authority: 38 U.S.C. 3686(a))
(iii) In all other schools:
(A) To the end of the course or
(B) For 12 weeks, whichever is less.
(Authority: 38 U.S.C. 3461, 3686(a))
(3) No extension of the period of entitlement will be made where
training is pursued in a training establishment as defined in 21.4200.
(4) A veteran may elect to reimburse the Department of Veterans
Affairs for educational assistance paid to him or her for one or more
intervals between terms, quarters or semesters and have entitlement
restored for as many intervals as necessary to allow payment of
educational assistance for one additional term, quarter or semester
through an extension. Before the veteran can reimburse the Department
of Veterans Affairs and receive additional educational assistance, all
of the following conditions must be met:
(i) Payment for the interval or intervals must have been made without
specific request from the student;
(ii) The payment checks for the interval or intervals must have been
negotiated;
(iii) The election is to the advantage of the veteran;
(iv) The veteran has not previously made such an election;
reimbursed the Department of Veterans Affairs; and received an
extension. Entitlement for intervals must be repurchased sequentially
beginning with the most recent interval for which payment was made
without the student's request.
(Authority: 38 U.S.C. 3461))
(31 FR 6771, May 6, 1966, as amended at 34 FR 840, Jan. 18, 1969; 43
FR 35288, Aug. 9, 1978; 44 FR 23219, Apr. 19, 1979; 44 FR 62494, Oct.
31, 1979; 48 FR 37971, Aug. 22, 1983; 50 FR 19934, May 13, 1985)
38 CFR 21.1042 Ending dates of eligibility.
The ending date of eligibility will be determined as follows:
(a) General. Except as otherwise provided in this section and as
provided by 21.1043 and 21.1044, the Department of Veterans Affairs
will not provide educational assistance to a veteran after the earlier
of the following:
(1) Ten years from his or her last discharge or release from active
duty after January 31, 1955, or
(2) December 31, 1989.
(b) Correction of military records. If the veteran becomes eligible
for educational assistance as the result of a correction of military
records under 10 U.S.C. 1552, or a change, correction or modification of
a discharge or dismissal under 10 U.S.C. 1553, or other corrective
action by competent military authority, the Department of Veterans
Affairs will not provide educational assistance later than 10 years
after the date his or her discharge or dismissal was changed, corrected
or modified (except as provided by 21.1043 or 21.1044), or December
31, 1989, whichever is the earlier.
(c) Initial eligibility -- (1) Discharge or release before June 1,
1966. Where eligibility is based on a discharge or release from active
duty before June 1, 1966, educational assistance will not be afforded
later than May 31, 1976.
(2) Discharge or release before August 31, 1967. Where eligibility
is based on a discharge or release from active duty before August 31,
1967, educational or training assistance based on a course of apprentice
or other on-the-job training, flight training, or farm cooperative
training approved under the provisions of 21.4261, 21.4262, 21.4263 or
21.4264 will not be afforded later than August 30, 1977.
(Authority: 38 U.S.C. 3462)
(d) Eligibility based on completion of an obligated period of active
duty. A veteran's eligibility may be based solely on a completion of an
obligated period of active duty followed by discharge considered to be
unconditional under 3.13(c) of this chapter. When this occurs, the
Department of Veterans Affairs shall not afford the veteran an
educational assistance allowance after October 8, 1987, or 10 years
after the veteran completed the qualifying period of active duty unless
the veteran qualified for a later ending date pursuant to 21.1043. In
no event, however, shall the Department of Veterans Affairs furnish
educational assistance allowance after December 31, 1989.
(Authority: 38 U.S.C. 101, 3462)
(e) Eligibility established after the Department of Veterans Affairs
determines the character of discharge. If a veteran receives an
undesirable discharge, or a bad conduct discharge, but is entitled to
educational assistance allowance because the Department of Veterans
Affairs determines pursuant to 3.12 of this chapter that the discharge
was under conditions other than dishonorable, the last date on which
educational allowance may be afforded shall be determined as follows:
(1) If the veteran's discharge is under other than dishonorable
conditions pursuant to 3.12 of this chapter as that section was written
and interpreted on the date the veteran was discharged, no educational
assistance shall be afforded after the dates set forth in paragraph (a)
or (c) of this section, as appropriate.
(2) If the veteran was discharged prior to October 8, 1977, and his
or her discharge is considered to have been under dishonorable
conditions pursuant to 3.12 of this chapter as that section was written
and interpreted on the date of his or her discharge, but is considered
to have been under other than dishonorable conditions pursuant to 3.12
of this chapter as that section was written and interpreted after
October 7, 1977, educational assistance shall not be afforded after
October 7, 1987, unless the veteran qualifies for a later date pursuant
to 21.1043. In no event, however, shall such a veteran receive
educational assistance allowance after December 31, 1989.
(3) A veteran may have his or her eligibility arise under paragraph
(b) of this section, and then lose eligibility under that paragraph,
because a later review by an appropriate military authority revealed
that the change, correction or modification was not in accordance with
historically consistent, uniform standards and procedures. If such a
veteran having been in receipt of educational assistance, reestablishes
his or her eligibility through the Department of Veterans Affairs's
determination that the veteran's discharge was under conditions other
than dishonorable, no educational assistance shall be afforded later
than:
(i) Ten years from the date of discharge or dismissal if the
veteran's discharge would have been considered to have been under other
than dishonorable conditions pursuant to 3.12 of this chapter as that
section was written and interpreted on the date he or she was discharged
or dismissed.
(ii) Ten years from the first date of training for which the veteran
received educational assistance if the veteran's discharge or dismissal
would have been considered to have been under dishonorable conditions
pursuant to 3.12 of this chapter as that section was written on the
date the veteran was discharged or dismissed, but is considered to have
been under conditions other than dishonorable pursuant to 3.12 of this
chapter as that section was written after October 7, 1977. In no event,
however, shall such a veteran receive educational assistance allowance
after December 31, 1989.
(Authority: 38 U.S.C. 3462, 5303)
(4) If the veteran was discharged before December 31, 1979, and due
to the veteran's commission of homosexual acts while on active duty, his
or her discharge is considered to have been under dishonorable
conditions pursuant to 3.12 of this chapter as that section was written
and interpreted on the date of his or her discharge, but is considered
to have been under other than dishonorable conditions pursuant to 3.12
of this chapter as that section was written and interpreted after
December 30, 1979, educational assistance may be afforded the veteran
through December 31, 1989.
(Authority: 38 U.S.C. 3462, 5303)
(f) Discontinuance. If the veteran is pursuing a course on the date
of expiration of eligibility as determined under this section, the
educational assistance allowance will be discontinued effective the day
preceding the end of the 10-year period, or December 31, 1989, whichever
is the earlier.
(g) Periods excluded. There shall be excluded in computing the
10-year period of eligibility for educational assistance under this
section, any period during which the eligible veteran subsequent to his
or her last discharge or release from active duty was captured and held
as a prisoner of war by a foreign government or power plus any period
immediately following the veteran's release from detention during which
he or she was hospitalized at a military, civilian, or Department of
Veterans Affairs medical facility, provided:
(1) The veteran served on or after February 1, 1955, and
(2) The veteran was eligible for educational assistance under the
provisions of Chapter 34 of Chapter 36 of Title 38 U.S.C.
(Authority: 38 U.S.C. 3462)
(43 FR 35289, Aug. 9, 1978, as amended at 44 FR 62494, Oct. 31, 1979;
45 FR 59312, Sept. 9, 1980; 48 FR 1196, Jan. 11, 1983; 53 FR 19298,
May 27, 1988)
38 CFR 21.1043 Extended period of eligibility.
(a) General. A veteran shall be granted an extension of the
applicable delimiting period, as otherwise determined by 21.1042
provided:
(1) The veteran applies for an extension.
(2) The veteran was prevented from initiating or completing the
chosen program of education within the otherwise applicable delimiting
period because of a physical or mental disability that did not result
from the willful misconduct of the veteran. It must be clearly
established by medical evidence that such a program of education was
medically infeasible. A veteran who is disabled for a period of 30 days
or less will not be considered as having been prevented from initiating
or completing a chosen program, unless the evidence establishes that the
veteran was prevented from enrolling or reenrolling in the chosen
program of education, or was forced to discontinue attendance, because
of the short disability.
(i) For the purposes of the extension of the period of eligibility
described in this section, the Department of Veterans Affairs will not
consider the disabling effects of chronic alcoholism to be the result of
willful misconduct and will consider those disabling effects as physical
or mental disabilities.
(ii) The provisions of paragraph (a)(2)(i) of the section will apply
only when the last date of the time limit for filing a claim for the
extension determined under 21.1032(d) of this part occurs after
November 17, 1988.
(Authority: 38 U.S.C. 3462; Pub. L. 100-689)
(3) The veteran is otherwise eligible for payment of educational
assistance for the training pursuant to Chapter 34, Title 38 U.S.C.
(Authority: 38 U.S.C. 3462)
(b) Disabling effects of chronic alcoholism. (1) The term disabling
effects of chronic alcoholism means alcohol-induced physical or mental
disorders or both, such as habitual intoxication, withdrawal, delirium,
amnesia, dementia, and other like manifestations of chronic alcoholism
which, in the particular case --
(i) Have been medically diagnosed as manifestations of alcohol
dependency or chronic alcohol abuse, and
(ii) Are determined to have prevented commencement or completion of
the affected individual's chosen program of education.
(2) A diagnosis of alcoholism, chronic alcoholism,
alcohol-dependency, chronic alcohol abuse, etc., in and of itself, does
not satisfy the definition of this term.
(3) Injury sustained by a veteran as a proximate and immediate result
of activity undertaken by the veteran while physically or mentally
unqualified to do so due to alcoholic intoxication is not considered a
disabling effect of chronic alcoholism.
(Authority: 38 U.S.C. 105, 3462; Pub. L. 100-689)
(c) Commencing date. The veteran shall elect the commencing date of
an extended period of eligibility. The date chosen:
(1) Must be on or after the original date of expiration of
eligibility as determined by 21.1042, and
(2) Must be after November 17, 1988, if the veteran qualifies for the
extended period of eligibility solely based on the disabling effects of
chronic alcoholism, and
(3) Must be on or before the ninetieth day following the date on
which the veteran's application for an extension was approved by the
Department of Veterans Affairs, if the veteran is training during the
extended period of eligibility in a course not organized on a term,
quarter or semester basis, or
(4) Must be on or before the first ordinary term, quarter or semester
following the ninetieth day after the veteran's application for an
extension was approved by the Department of Veterans Affairs if the
veteran is training during the extended period of eligibility in a
course organized on a term, quarter or semester basis.
(d) Length of extended periods of eligibility. A veteran's extended
period of eligibility shall be for the length of time that the
individual was prevented from initiating or completing his or her chosen
program of education. This shall be determined as follows:
(1) If the veteran is in training in a course organized on a term,
quarter, or semester basis, his or her extended period of eligibility
shall contain the same number of days as the number of days from the
date during the veteran's original delimiting period that his or her
training became medically infeasible to the earliest of the following
dates:
(i) The commencing date of the ordinary term, quarter or semester
following the day the veteran's training became medically feasible,
(ii) The veteran's delimiting date as determined by 21.1042, or
(iii) The date the veteran resumed training.
(2) If the veteran is training in a course not organized on a term,
quarter or semester basis, his or her extended period of eligibility
shall contain the same number of days from the date during the veteran's
original delimiting period that his or her training became medically
infeasible to the earlier of the following dates:
(i) The date the veteran's training became medically feasible or
(ii) The veteran's delimiting date as determined by 21.1042.
(Authority: 38 U.S.C. 3462(a)(1))
(e) Discontinuance. If the veteran is pursuing a course on the date
an extended period of eligibility expires (as determined under this
section), the Department of Veterans Affairs will discontinue the
educational assistance allowance effective the day before the end of the
extended period of eligibility.
(Authority: 38 U.S.C. 3462)
(44 FR 62494, Oct. 31, 1979, as amended at 48 FR 37971, Aug. 22,
1983; 54 FR 31951, Aug. 3, 1989; 55 FR 13531, Apr. 11, 1990)
38 CFR 21.1044 Additional period of eligibility.
A veteran who meets the basic eligibility criteria found in 21.1040
has an additional period of eligibility if he or she also meets the
requirements of this section.
(a) Service requirements -- (1) The veteran must have: (i) Served at
least 1 day on active duty after August 4, 1964 and before May 8, 1975,
and
(ii) Received an unconditional discharge or release under conditions
other than dishonorable from the period of service upon which the
additional eligibility period is based.
(2) In determining whether this requirement is met, the Department of
Veterans Affairs will use the criteria stated in 21.1040(d).
(b) Entitlement requirement. The veteran must have unused
entitlement to educational assistance allowance.
(c) Time and length of additional eligibility period. (1) If the
ending date of the veteran's period of eligibility or extended period of
eligibility as determined by 21.1042 or 21.1043 is before January 1,
1982, and the veteran is not pursuing an associate degree program which
is predominantly vocational in content, the beginning date of the
additional eligibility period will be --
(i) The first date of attendance or training as certified by the
school or training establishment, or
(ii) January 1, 1982, whichever is later.
(2) If the ending date of the veteran's period of eligibility or
extended period of eligibility as determined by 21.1042 or 21.1043 is
after December 31, 1981, and the veteran is not pursuing an associate
degree program which is predominantly vocational in content, the
beginning date of the additional eligibility period will be --
(i) The first date of attendance or training as certified by the
school or training establishment, or
(ii) The first day following the end of the veteran's period of
eligibility or extended period of eligibility, whichever is later.
(3) If the ending date of the veteran's period of eligibility or
exended period of eligibility as determined by 21.1042 or 21.1043 is
before October 1, 1983, and the veteran is pursuing an associate degree
program which is predominantly vocational in content, the beginning date
of the additional eligibility period will be the later of October 1,
1983 or whichever of the following dates is appropriate.
(i) If the associate degree is not a standard college degree, the
first date of attendance, or
(ii) If the associate degree is a standard college degree, the date
of registration, or date of reporting where the student is required by a
published school standard to report in advance of registration.
(4) If the ending date of the veteran's period of eligibility as
determined by 21.1042 or 21.1043 is after September 30, 1983, and the
veteran is pursuing an associate degree program which is predominantly
vocational in content, the beginning date of the additional eligibility
period will be the later of the first day following the end of the
veteran's period of eligibility or extended period of eligibility or
whichever of the following is appropriate.
(i) If the associate degree is not a standard college degree, the
first date of attendance, or
(ii) If the associate degree is a standard college degree, the date
of registration, or date of reporting where the student is required by a
published school standard to report in advance of registration.
(5) The ending date of an additional eligibility period is --
(i) The last day of attendance or training as certified by the school
or training establishment, or
(ii) December 31, 1984, whichever is earlier.
(d) Permissible programs, (1) During the period of eligibility the
veteran may only pursue:
(i) A program of apprenticeship or other on-job training;
(ii) A course pursued in residence leading to a vocational objective;
(iii) A correspondence course leading to a vocational objective;
(iv) A correspondence-residence course leading to a vocational
objective;
(v) A program of secondary education; or
(vi) A program leading to an associate degree, provided that --
(A) The program is predominantly vocational in content, and
(B) Funds have been appropriated and remain available for the purpose
of pursuing an associate degree during an additional period of
eligibility, and
(C) The veteran will pursue the program after September 30, 1983.
(2) During this period of additional eligibility the veteran may not
pursue:
(i) A flight training course;
(ii) A course leading to a bachelor's or higher degree;
(iii) A program of secondary education if he or she already has a
secondary school diploma or an equivalency certificate; or
(iv) A program leading to an associate degree if --
(A) The associate degree program is not predominantly vocational in
content, or
(B) Funds have not been appropriated for pursuit of an associate
degree program during an additional period of eligibility, or
(C) The funds appropriated for pursuit of an associate degree during
an additional period of eligibility have been exhausted; or
(v) Before October 1, 1983, any training leading to an associate
degree.
(3) If the veteran pursues a program of secondary education, his or
her monthly educational assistance allowance must be based upon the
tuition and fees charged to the veteran for the course as provided in 38
U.S.C. 3491(b)(2).
(4) The Department of Veterans Affairs considers that a program
leading to an associate degree is predominantly vocational in content
when more than one-half the unit subjects required for the associate
degree program are vocational in nature.
(Authority: Sec. 18, Pub. L. 98-77, 97 Stat. 443)
(e) Need requirements -- vocational or occupational objective. After
September 30, 1983, and before January 1, 1985, the Department of
Veterans Affairs will consider a program leading to an associate degree
which is predominantly vocational in content to have a vocational
objective as well as an educational objective.
(Authority: Sec. 18, Pub. L. 98-77; 97 Stat. 443)
(1) The Department of Veterans Affairs may disallow a claim for an
additional eligibility period to permit the veteran to pursue an
approved vocational objective or a program of apprenticeship or other
on-job training only if:
(i) The veteran does not meet the requirements of either 21.1040 or
the requirements of paragraph (a) or (b) of this section, or
(ii) The veteran's course or program does not meet the requirements
of paragraph (d) of this section, or
(iii) The Department of Veterans Affairs determines, based upon an
examination of the veteran's employment and training history, that the
veteran is not in need of the program or course in order to obtain a
reasonably stable employment situation consistent with the veteran's
abilities and aptitudes.
(2) The Department of Veterans Affairs will determine that a veteran
does not need his or her selected program or course only if all of the
following criteria are met.
(i) At least one of the jobs the veteran held during the 6-month
period before the day he or she filed an application required more than
2 years of specific vocational preparation or training.
(ii) An examination of the veteran's employment history during the
6-month period preceding the day he or she filed an application
demonstrates that the veteran's employment situation is stable. The
Department of Veterans Affairs will not consider that the employment
situation is stable if the veteran was unemployed during the entire
6-month period. In examining the veteran's employment history, the
Department of Veterans Affairs's consideration will include, but is not
limited to:
(A) The type of work in which the veteran has been employed;
(B) The length and frequency of any periods of unemployment or
part-time employment; and
(C) The prospects the veteran has of obtaining full-time employment
in the field in which he or she has an educational background or job
training or both.
(iii) The Department of Veterans Affairs finds that the veteran's
employment during the 6-month period is consistent with his or her
aptitudes and abilities.
(f) Requirements -- secondary school diploma. The veteran may pursue
a program of secondary education during the additional eligibility
period provided he or she does not have a secondary school diploma or an
equivalency certificate.
(g) Limitations. If a veteran becomes disabled during the additional
eligibility period, he or she may not qualify under 21.1043 for an
extension of the additional eligibility period past December 31, 1984.
(Authority: 38 U.S.C. 3462(a))
(48 FR 1196, Jan. 11, 1983; 48 FR 2768, Jan. 21, 1983; 49 FR 8438,
Mar. 7, 1984; 49 FR 29059, July 18, 1984)
38 CFR 21.1045 Entitlement charges.
VA will make charges against entitlement only when required by this
section. Charges for institutional training will be based upon the
principle that a veteran or eligible person who trains full time for 1
day should be charged 1 day of entitlement. The provisions of this
section apply to veterans training under chapter 34 of title 38 U.S.C.,
as well as to veterans for that portion of a program under chapter 31 of
title 38 U.S.C., during which the veteran receives payment at the
chapter 34 rate pursuant to a valid election under 21.264 of this part
to receive educational assistance allowance equivalent to that paid to
veterans training under chapter 34.
(Authority: 38 U.S.C. 3491)
(a) Courses resulting in no entitlement charge. The Department of
Veterans Affairs will make no charge against the entitlement of:
(1) An eligible serviceperson who is pursuing a course leading to a
secondary school diploma or an equivalency certificate as described in
21.4235;
(2) A veteran who --
(i) On October 1, 1980 was pursuing a course leading to a secondary
school diploma or an equivalency certificate as described in 21.4235;
and
(ii) Has remained continuously enrolled since October 1, 1980, in a
course leading to a secondary school diploma or an equivalency
certificate.
(3) A veteran who --
(i) Is pursuing a course leading to a secondary school diploma or an
equivalency certificate as described in 21.4235; and
(ii) Received educational assistance allowance based upon the tuition
and fees charged for the course; or
(4) A veteran, not on active duty, who is pursuing refresher,
remedial or deficiency courses.
(Authority: 38 U.S.C. 3491)
(b) Course for which entitlement will be charged. The Department of
Veterans Affairs will make a charge against the period of entitlement
of:
(1) A veteran or serviceperson for a program consisting of flight
training under Chapter 34;
(2) A veteran who is pursuing a program of apprenticeship or other
on-job training under chapter 34;
(3) A veteran or serviceperson under chapter 34 who is pursuing a
correspondence course; or
(4) A veteran, not on active duty, who --
(i) Is pursuing a course leading to a secondary school diploma or an
equivalency certificate as described in 21.4235 of this part;
(ii) Elects to receive educational assistance allowance at the rate
described in 21.4136(a), and
(iii) Either was not pursuing a course leading to a secondary school
diploma or equivalency certificate on October 1, 1980, or has not
remained continuously enrolled in such a course since October 1, 1980;
or
(5) A serviceperson under chapter 34 who is pursuing a refresher,
remedial or deficiency course; or
(6) A veteran or serviceperson under chapter 34 for the pursuit of
any course not described in paragraph (a) of this section.
(Authority: 38 U.S.C. 3461, 3491)
(c) Determining entitlement charge. The provisions of this paragraph
do not apply to those courses listed in paragraph (a) of this section or
to flight training, apprenticeship or other on-job training,
correspondence courses, or to courses offered through independent study.
(1) For all other courses, after making any adjustments required by
paragraph (c)(3) of this section, VA will make a charge against
entitlement.
(2) The Department of Veterans Affairs will compute elapsed time from
the commencing date of enrollment to date of discontinuance. If the
veteran or eligible person changes his or her training time after the
commencing date of enrollment, the Department of Veterans Affairs will:
(i) Divide the enrollment period into separate periods of time during
which the veteran's or eligible person's training time remains constant;
and
(ii) Compute the elapsed time separately for each time period.
(Authority: 38 U.S.C. 3461)
(3) A veteran may concurrently enroll in a refresher, remedial or
deficiency course or courses for which paragraph (a)(4) of this section
requires no charge against entitlement and in a course or courses for
which paragraph (b) of this section requires a charge against
entitlement. When this occurs, VA will charge entitlement for the
concurrent enrollment based only on pursuit of the course or courses
described in paragraph (b) of this section, measured in accordance with
21.4270 through 21.4275, as appropriate.
(Authority: 38 U.S.C. 3461)
(d) Entitlement charge -- independent study. The Department of
Veterans Affairs will make charges against the entitlement of a veteran
or eligible person in the manner described in paragraph (c) of this
section, if he or she is pursuing a program of education solely by
independent study. However, the computation will always be made as
though the veteran's or eligible person's training were one-quarter
time.
(Authority: 38 U.S.C. 3482(e))
(e) Entitlement charge -- flight training. The charge against
entitlement for pursuit of a program consisting of flight training shall
be 1 month for each:
(1) $302 which is paid to the veteran as an educational assistance
allowance after September 30, 1980 and before January 1, 1981 for flight
training, and
(2) $317 which is paid to the veteran as an educational assistance
allowance after December 31, 1980 for flight training.
(Authority: 38 U.S.C. 1677(b) (Repealed, Pub. L. 97-35, section
2003(b)))
(f) Entitlement charge -- apprenticeship or other on-job training.
The charge against entitlement for pursuit of apprenticeship or other
on-the-job training program shall be 1 month for each month educational
assistance allowance is paid to the veteran or eligible person for the
program. If there are deductions from the veteran's or eligible
person's educational assistance allowance due to his or her excessive
absences, the Department of Veterans Affairs will combine the portions
of a month for which deductions were made. The Department of Veterans
Affairs will make no charge against the entitlement for the period of
combined deductions.
(Authority: 38 U.S.C. 3687)
(g) Entitlement charge -- correspondence course. (1) For contracts
entered into before January 1, 1973, the charge against entitlement for
pursuit of a course exclusively by correspondence will be 1 month for
each $175 paid as educational assistance allowance;
(2) For contracts entered into after December 31, 1972, the charge
against entitlement for pursuit of a course exclusively by
correspondence will be 1 month for each:
(i) $220 paid after December 31, 1972, and before September 1, 1974,
to a veteran as an educational assistance allowance.
(ii) $260 paid after August 31, 1974, and before January 1, 1975,
(iii) $270 paid after December 31, 1974, and before October 1, 1976,
(iv) $292 paid after September 30, 1976, and before October 1, 1977,
(v) $311 paid after September 30, 1977, and before October 1, 1980,
(vi) $327 paid after September 30, 1980, and before January 1, 1981,
(vii) $342 paid after December 31, 1980, and before October 1, 1984,
and
(viii) $376 paid after September 30, 1984.
(Authority: 38 U.S.C. 3686(a))
(h) Overpayment cases. VA will make a charge against entitlement for
an overpayment only if the overpayment is discharged in bankruptcy, is
waived, and is not recovered, or is compromised.
(Authority: 38 U.S.C. 3461)
(1) If the overpayment is discharged in bankruptcy or is waived and
is not recovered, the charge against entitlement will be at the
appropriate rate for the elapsed period covered by the overpayment
(exclusive of interest, admininstrative costs of collection, court costs
and marshal fees).
(2) If the overpayment is compromised and the compromise offer is
less than the amount of interest, administrative costs of collection,
court costs and marshal fees, the charge against entitlement will be at
the appropriate rate for the elapsed period covered by the overpayment
(exclusive of interest, administrative costs of collection, court costs
and marshal fees).
(3) If the overpayment is compromised and the compromise offer is
equal to or greater than the amount of interest, administrative costs of
collection, court costs and marshal fees, the charge against entitlement
will be determined by:
(i) Subtracting from the sum paid in the compromise offer the amount
attributable to interest, admininstrative costs of collection, court
costs and marshal fees,
(ii) Subtracting the remaining amount of the overpayment balance
determined in paragraph (h)(3)(i) of this section from the amount of the
original overpayment (exclusive of interest, admininstrative costs of
collection, court costs and marshal fees),
(iii) Dividing the result obtained in paragraph (h)(3)(ii) of this
section by the amount of the original debt (exclusive of interest,
administrative costs of collection, court costs and marshal fees), and
(iv) Multiplying the percentage obtained in paragraph (h)(3)(iii) of
this section by the amount of the entitlement otherwise chargeable for
the period of the original overpayment.
(Authority: 38 U.S.C. 3471)
(i) Interruption to conserve entitlement. A veteran may not
interrupt a certified period of enrollment for the purpose of conserving
entitlement. An educational institution may not certify a period of
enrollment for a fractional part of the normal term, quarter or
semester, if the veteran is enrolled for the term, quarter or semester.
The Department of Veterans Affairs will make a charge against
entitlement for the entire period of certified enrollment, if the
veteran is otherwise eligible for benefits, except when benefits are
interrupted under any of the following conditions:
(1) Enrollment is actually terminated;
(2) The veteran cancels his or her enrollment, and does not negotiate
an educational benefits check for any part of the certified period of
enrollment;
(3) The veteran interrupts his or her enrollment at the end of any
term, quarter, or semester within the certified period of enrollment,
and does not negotiate a check for educational benefits for the
succeeding term, quarter, or semester;
(4) The veteran requests interruption or cancellation for any break
when a school was closed during a certified period of enrollment, and
the Department of Veterans Affairs continued payments under an
established policy based upon an Executive order of the President or an
emergency situation. Whether the veteran negotiated a check for
educational benefits for the certified period is immaterial.
(Authority: 38 U.S.C. 3461)
(j) (Reserved)
(k) Education loan after otherwise applicable delimiting date --
chapter 34. VA will make a charge against the entitlement of a veteran
who receives an education loan pursuant to 21.4501(c) at the rate of 1
day for each day of entitlement that would have been used had the
veteran been in receipt of educational assistance allowance for the
period for which the loan was granted.
(Authority: 38 U.S.C. 3462; Pub. L. 95-202, Pub. L. 100-689)
(48 FR 37971, Aug. 22, 1983, as amended at 49 FR 8920, Mar. 9, 1984;
50 FR 19934, May 13, 1985; 51 FR 9953, Mar. 24, 1986; 53 FR 5770, Feb.
26, 1988; 55 FR 28024, July 9, 1990)
38 CFR 21.1045 Subpart C -- Survivors' and Dependents' Educational
Assistance Under 38 U.S.C. Chapter 35
Authority: 38 U.S.C. 3500-3566.
38 CFR 21.1045 General
38 CFR 21.3020 Educational assistance.
The program of educational assistance under 38 U.S.C. Chapter 35
captioned Survivors' and Dependents' Educational Assistance, may be
referred to as Dependents' Educational Assistance.
(Authority: Sec. 309, 90 Stat. 2383)
(a) General. A program of education or special restorative training
may be authorized for an eligible person who meets the definition
contained in 21.3021.
(b) 45 months limitation. Educational assistance may not exceed a
period of 45 months, or the equivalent in part-time training, unless it
is determined that a longer period is required for special restorative
training under the circumstances outlined in 21.3300(c) or except as
specified in 21.3044(c).
(Authority: 38 U.S.C. 3511(a), 3533, 3541(b))
(c) Courses in foreign countries. A course to be pursued at a school
not located in a State or in the Philippines may not be approved except
under the circumstances outlined in 21.4260.
(30 FR 15631, Dec. 18, 1965, as amended at 31 FR 6773, May 6, 1966;
34 FR 841, Jan. 18, 1969; 38 FR 14931, June 7, 1973; 43 FR 35289, Aug.
9, 1978)
38 CFR 21.3021 Definitions.
(a) Eligible person means:
(1) A child of a:
(i) Veteran who died of a service-connected disability.
(ii) Veteran who died while having a disability evaluated as total
and permanent in nature resulting from a service-connected disability.
(iii) Veteran, serviceman or servicewoman who has a total disability
permanent in nature resulting from a service-connected disability.
(iv) Person who is on active duty as a member of the Armed Forces and
who now is, and, for a period of more than 90 days, has been, listed by
the Secretary concerned as missing in action, captured in line of duty
by a hostile force, or forcibly detained or interned in line of duty by
a foreign government or power.
(2) The surviving spouse of a:
(i) Veteran who died of a service-connected disability.
(ii) Veteran who died while having a disability evaluated as total
and permanent in nature resulting from a service-connected disability,
arising out of active military, naval or air service after the beginning
of the Spanish-American War. (See 3.6(a) and 3.807 of this chapter.)
(3) The spouse of a:
(i) Veteran, serviceman or servicewoman who has a total disability
permanent in nature resulting from a service-connected disability.
(ii) Person who is on active duty as a member of the Armed Forces and
who now is, and, for a period of more than 90 days, has been, listed by
the Secretary concerned as missing in action, captured in line of duty
by a hostile force, or forcibly detained or interned in line of duty by
a foreign government or power.
(b) Child means a son or daughter of a veteran as defined in
3.807(d) of this chapter. The term includes a child of a Philippine
Commonwealth Army veteran and a Philippine Scout (designated as a New
Philippine Scout under 38 U.S.C. 3566(b)), as defined in 3.8(b), (c),
or (d) of this chapter, but educational assistance allowance may not be
authorized based on such service for any period before September 30,
1966.
(c) Wife and widow, spouse and surviving spouse. The terms wife and
widow mean an individual as defined in 3.807(d) of this chapter and the
terms spouse and surviving spouse shall have the same respective meaning
when used in the regulations in part 21, Title 38, Code of Federal
Regulations. Educational assistance allowance may not be authorized for
any such individuals for any period before December 1, 1968.
(Authority: 38 U.S.C. 3500, 3501, and 3511)
(d) Parent or guardian means a natural or adoptive parent, a
fiduciary legally appointed by a court of competent jurisdiction or any
person who is determined to be otherwise legally vested with the care of
the eligible person (38 U.S.C. 3501(a)(4)) or it may be the eligible
person if he or she has attained majority under laws applicable in his
or her State of residence as shown on the application and is under no
known legal disability. (38 U.S.C. 3501(b)) The eligible person may be
designated as the person by whom required actions may be taken even
though he or she has not attained majority, or having attained majority,
is under a legal disability, when it is determined that to do otherwise
would not be in his or her best interest, would result in undue delay or
would not be administratively feasible. Where necessary to protect his
or her interest and there is reason why the eligible person should not
act for himself or herself, some other individual may be designated as
the person by whom required actions should be taken.
(Authority: 38 U.S.C. 3501(c))
(e) Armed Forces, as to service by the eligible person, means the
U.S. Army, Navy, Marine Corps, Air Force, and Coast Guard, including the
Reserve components of each, the National Guard of the United States and
the Air National Guard of the United States. (38 U.S.C. 3501 (a)(3)
and (d) and 3512(a)) Effective December 31, 1970, the term includes the
National Oceanic and Atmospheric Administration, the Environmental
Science Services Administration and the Coast and Geodetic Survey, as to
full-time duty of officers commissioned therein.
(Authority: 38 U.S.C. 101(21)(C))
(f) Duty with the Armed Forces, as to service by the eligible person,
means active duty, active duty for training for a period of 6 or more
consecutive months, or an initial period of active duty for training of
not less than 3 months or more than 6 months in the Ready Reserve. (38
U.S.C. 3501(a)(3) and (d), 3512(a)) See 21.3041 and 21.3042.
(g) State means each of the several States, territories, and
possessions of the United States, the District of Columbia, and the
Commonwealth of Puerto Rico, and the Canal Zone. (38 U.S.C. 101(20))
(Although the Republic of the Philippines is not included in the
definition of a State, eligible persons may pursue courses of training
in that country.)
Cross References: Duty periods. See 3.6 of this chapter.
Persons included. See 3.7 of this chapter.
Philippine and insular forces. See 3.8 of this chapter.
(36 FR 2508, Feb. 5, 1971, as amended at 38 FR 12110, May 9, 1973;
43 FR 35290, Aug. 9, 1978)
38 CFR 21.3022 Nonduplication -- programs administered by VA.
A person who is eligible for educational assistance under 38 U.S.C.
chapter 35 and is also eligible for assistance under any of the
provisions of law listed in this paragraph cannot receive such
assistance concurrently. The eligible person must elect which benefit
he or she will receive for the particular period or periods during which
education or training is to be pursued. The election is subject to the
conditions specified in 21.4022 of this part. The provisions of law
are:
(a) 38 U.S.C. chapter 30,
(b) 38 U.S.C. chapter 31,
(c) 38 U.S.C. chapter 32,
(d) 38 U.S.C. chapter 34,
(e) 10 U.S.C. chapter 106,
(f) 10 U.S.C. chapter 107,
(g) Section 903 of the Department of Defense Authorization Act, 1981,
(h) The Hostage Relief Act of 1980, and
(i) The Omnibus Diplomatic Security and Antiterrorism Act of 1986.
(Authority: 38 U.S.C. 3681)
(54 FR 33886, Aug. 17, 1989, as amended at 57 FR 29798, July 7, 1992)
38 CFR 21.3023 Nonduplication; pension, compensation and dependency
and indemnity compensation.
(a) Child; age 18. A child who is eligible for educational
assistance and who is also eligible for pension, compensation or
dependency and indemnity compensation based on school attendance must
elect whether he or she will receive educational assistance or pension,
compensation or dependency and indemnity compensation.
(1) An election of educational assistance either before or after the
age of 18 years is a bar to subsequent payment or increased rates or
additional amounts of pension, compensation or dependency and indemnity
compensation on account of the child based on school attendance on or
after the age of 18 years. The bar is equally applicable where the
child has eligibility from more than one parent.
(2) Payment of pension, compensation or dependency and indemnity
compensation to or on account of a child after his or her 18th birthday
does not bar subsequent payments of educational assistance.
(3) An election of educational assistance will not preclude the
allowance of pension, compensation, or dependency and indemnity
compensation based on school attendance for periods, including vacation
periods, prior to the commencement of educational assistance.
(b) Child; under 18 or helpless. Educational assistance allowance
or special restorative training allowance may generally be paid
concurrently with pension, compensation or dependency and indemnity
compensation for a child under the age of 18 years or for a helpless
child based on the service of one or more parents. Where, however,
entitlement is based on the death of more than one parent in the same
parental line, concurrent payments in two or more cases may not be
authorized if the death of one such parent occurred on or after June 9,
1960. In the latter cases, an election of educational assistance and
pension, compensation or dependency and indemnity compensation in one
case does not preclude a reelection of benefits before attaining age 18
or while helpless based on the service of another parent in the same
parental line.
(c) Child; election. The commencement of a program of education
constitutes an election.
(1) Except as provided in paragraph (c)(2) of this section, an
election is final when the payee has negotiated one check for this
benefit.
(2) An election based on erroneous information furnished by an
authorized representative of the Department of Veterans Affairs is not
considered final.
(3) A child other than a helpless child, whose eligibility was based
on a finding that the veteran had a permanent total service-connected
disability and who commenced a program of educational assistance may not
thereafter qualify as a dependent for disability compensation purposes
if the veteran is later found to be less than permanently and totally
disabled, or for pension, compensation or dependency and indemnity
compensation after the veteran's death.
(d) Spouse or surviving spouse. Educational assistance allowance may
be paid for an eligible spouse or surviving spouse concurrently with
pension, compensation or dependency and indemnity compensation.
Cross References: Discontinuance. See 3.503(h) of this chapter.
Concurrent payments. See 3.707 of this chapter.
Certification. See 3.807 of this chapter.
(30 FR 15631, Dec. 18, 1965, as amended at 31 FR 6773, May 6, 1966;
34 FR 842, Jan. 18, 1969; 40 FR 42879, Sept. 17, 1975; 50 FR 27826,
July 8, 1985)
38 CFR 21.3024 Nonduplication; Federal Employees' Compensation Act.
(a) Civilian employment. The provisions of this paragraph are
applicable to cases where there is eligibility for benefits from the
Office of Workers' Compensation Programs, under the Federal Employees'
Compensation Act (FECA) based on the disability or death as a result of
civilian employment of the veteran from whom eligibility for educational
assistance is derived.
(1) Child, spouse or surviving spouse. A person who is eligible for
educational assistance and is also eligible for Office of Workers'
Compensation Programs benefits, under the Federal Employees'
Compensation Act (FECA) must elect which benefit he or she will receive.
(2) Veteran, spouse and child -- surviving spouse and child. An
eligible person may receive educational assistance notwithstanding that
the Office of Workers' Compensation Programs benefits under the Federal
Employees' Compensation Act (FECA) are being paid to a veteran, or
surviving spouse.
(3) Election. An election of Office of Workers' Compensation
Programs benefits, under the Federal employees' Compensation Act (FECA),
by or for a child filed on or after July 4, 1966, is a bar to subsequent
payments of Department of Veterans Affairs benefits during the period of
concurrent eligibility. An election of Office of Workers' Compensation
Programs benefits under the Federal Employees' Compensation Act (FECA)
by a surviving spouse filed on or after December 1, 1968, is a bar to
subsequent payments of Department of Veterans Affairs benefits during
the period of concurrent eligibility.
(b) Military service. The provisions of this paragraph are
applicable to cases where there is eligibility for benefits from Office
of Workers' Compensation Program, under the Federal Employee's
Compensation Act (FECA) based on the disability or death as a result of
military service by the veteran from whom eligibility for educational
assistance is derived.
(1) Child, spouse or surviving spouse. A person who is eligible for
educational assistance and is also eligible for Office of Workers'
Compensation Programs benefits, under the Federal Employees'
Compensation Act (FECA) must elect which benefit he or she will receive.
The election may be made at any time.
(2) Veteran, spouse and child -- surviving spouse and child. An
eligible person may receive educational assistance notwithstanding that
the Office of Workers' Compensation Programs benefits, under the Federal
Employees' Compensation Act (FECA) are being paid to a veteran, or
surviving spouse.
Cross Reference: Federal Employees' Compensation. See 3.708 of
this chapter.
(40 FR 42879, Sept. 17, 1975, as amended at 50 FR 27826, July 8,
1985)
38 CFR 21.3025 Nonduplication; Federal programs.
Educational assistance is subject to the restrictions contained in
21.4025 with respect to an eligible person who is pursuing a course of
education or training under a Federal program.
(Authority: 38 U.S.C. 3681)
(31 FR 6773, May 6, 1966)
38 CFR 21.3025 Claims
38 CFR 21.3030 Claims.
A specific claim in the form prescribed by the Secretary must be
filed by the spouse, surviving spouse, parent of a child or the child
having attained legal majority, or the guardian of an eligible person in
order for educational assistance allowance or special restorative
training allowance to be paid.
(Authority: 38 U.S.C. 3513)
(43 FR 35290, Aug. 9, 1978)
38 CFR 21.3031 Informal claims.
(a) Any communication from a spouse, surviving spouse, parent of a
child or the child having attained legal majority, or the guardian of an
eligible person, an authorized representative or a Member of Congress
indicating an intent to apply for educational assistance for an eligible
person may be considered an informal claim. Upon receipt of an informal
claim, if a formal claim has not been filed, an application form will be
forwarded to the spouse, surviving spouse, parent of a child or the
child having attained legal majority, or the guardian of an eligible
person for execution. If received within 1 year after the date it was
sent to the spouse, surviving spouse, parent of a child or the child
having attained legal majority, or the guardian of an eligible person,
it will be considered filed as of the date of receipt of the informal
claim.
(Authority: 38 U.S.C. 3513)
(b) The act of enrolling in an approved school does not in itself
constitute an informal application.
(31 FR 6771, May 6, 1966, as amended at 43 FR 35290, Aug. 9, 1978)
38 CFR 21.3032 Time limits.
(a) Completion of claim -- (1) Failure to furnish requested
information. The Department of Veterans Affairs will consider a claim
to be abandoned when the Department of Veterans Affairs requests
evidence in connection with a claim, and the parent, guardian or
eligible person does not furnish the evidence within 1 year of the
request. After the expiration of 1 year, the Department of Veterans
Affairs will not take further action unless a new claim is received.
(2) Failure to complete required counseling. When an eligible person
delays counseling required by 21.4105 for 12 or more months, for other
than a reason beyond his or her control, the Department of Veterans
Affairs will consider the claim to be abandoned.
(3) Reopening a claim. Where an application has been considered
abandoned under paragraph (a)(1) or (2) of this section, the Department
of Veterans Affairs will consider any subsequent communication from the
parent, guardian or eligible person requesting a program of education to
be a new application. The date of application in these cases is the
date of receipt of the subsequent communication.
(Authority: 38 U.S.C. 5103(a))
(b) Failure to furnish claim or notice of time limit. (1) VA's
failure to furnish any form or information concerning the right to file
a claim or to furnish notice of the time limit for the filing of a claim
will not extend the periods allowed for these actions.
(2) VA's failure to furnish an eligible person notice of the time
limit within which evidence must be submitted to perfect a claim, or
notice of the time limit within which to challenge an adverse VA
decision, shall extend the time limit for such action in accordance with
the provisions of 3.110 of this chapter.
(Authority: 38 U.S.C. 5101, 5113)
(c) Time limit for filing a claim for an extended period of
eligibility. A claim for an extended period of eligibility provided by
21.3046(d) must be received by the Department of Veterans Affairs by the
latest of the following dates:
(1) One year from the date on which the spouse's or surviving
spouse's original period of eligibility ended.
(2) One year from the date on which the spouse's or surviving
spouse's physical or mental disability no longer prevented him or her
from beginning or resuming a chosen program of education.
(3) October 17, 1981.
(Authority: 38 U.S.C. 3512)
Cross References: Due process; procedural and appellate rights with
regard to disability and death benefits and related relief. See 3.103.
Computation of time limit. See 3.110.
(30 FR 15632, Dec. 18, 1965, as amended at 39 FR 43220, Dec. 11,
1974; 48 FR 37973, Aug. 22, 1983; 50 FR 16702, Apr. 29, 1985; 54 FR
28677, July 7, 1989)
38 CFR 21.3032 Eligibility and Entitlement
38 CFR 21.3040 Eligibility; child.
(a) Commencement. A program of education or special restorative
training may not be afforded prior to the eligible person's 18th
birthday or the completion of secondary schooling, whichever is earlier,
unless it is determined through counseling that the best interests of
the eligible person will be served by entering training at an earlier
date and the eligible person has passed:
(1) Compulsory school attendance age under State law; or
(2) His or her 14th birthday and due to physical or mental handicap
may benefit by special restorative or specialized vocational training.
(b) Secondary schooling. Completion of secondary schooling means
completion of a curriculum offered by a public or private school which
satisfies the requirements for a high school diploma or its equivalent
-- usually completion of the 12th grade in the public school system.
(c) Age limitation for commencement. No person is eligible for
educational assistance who reached his or her 26th birthday on or before
the effective date of a finding of permanent total service-connected
disability, or on or before the date the veteran's death occurred, or on
or before the 91st day of listing by the Secretary concerned of the
member of the Armed Forces on whose service eligibility is claimed as
being in one of the missing status categories of 21.3021 (a)(1)(iv) and
(3)(ii).
(d) Termination of eligibility. No person is eligible for
educational assistance beyond his or her 31st birthday, except as
provided under 21.3041(e)(2). In no event may educational assistance be
provided after the period of entitlement has been exhausted. In an
exceptional case special restorative training may be provided in excess
of 45 months. See 21.3300.
(30 FR 15632, Dec. 18, 1965, as amended at 34 FR 842, Jan. 18, 1969;
39 FR 38227, Oct. 30, 1974; 40 FR 42879, Sept. 17, 1975; 41 FR 47929,
Nov. 1, 1976; 43 FR 35290, Aug. 9, 1978)
38 CFR 21.3041 Periods of eligibility; child.
(a) Basic beginning date. The basic beginning date of an eligible
child's period of eligibility is his or her 18th birthday or successful
completion of secondary schooling, whichever occurs first. See
paragraph (b) of this section and 21.3040 (a) and (b).
(Authority: 38 U.S.C. 3512(a))
(b) Exceptions to basic beginning date. (1) An eligible child may
have a beginning date earlier than the basic beginning date when he or
she has:
(i) Completed compulsory school attendance under applicable State
law, or
(ii) Passed his or her 14th birthday and has a physical or mental
handicap. See 21.3040(a).
(2) The eligible child may have a beginning date later than the basic
beginning date when any of the following circumstances exist.
(i) If the effective date of the permanent and total disability
rating is before the child has reached 18 but the date of notification
to the veteran from whom the child derives eligibility occurs after the
child has reached 18, the beginning date of eligibility shall be the
basic beginning date as determined in paragraph (a) of this section, or
the date of notification to the veteran, whichever is more advantageous
to the eligible child.
(ii) If the effective date of the permanent and total disability
rating occurs after the child has reached 18 but before he or she has
reached 26, the beginning date of eligibility will be the effective date
of the rating or the date of notification to the veteran from whom the
child derives eligibility, whichever is more advantageous to the
eligible child.
(Authority: 38 U.S.C. 3512(a)(3), 3512(d))
(iii) If the child becomes eligible through the death of a veteran,
the date of death will be the beginning date of eligibility if it occurs
after the child's 18th birthday and before his or her 26th birthday.
(iv) The child may become eligible through qualifying as the
veteran's adopted child (see 3.57(c)) or by becoming a stepchild of the
veteran and a member of the veteran's household. If either of these
events occurs after the child's 18th birthday and before his or her 26th
birthday, the effective date of eligibility will be whichever of the
following is appropriate:
(A) The date the child qualifies as an adopted child under 3.57(c),
or
(B) The date the child becomes the veteran's stepchild and a member
of his or her household.
(Authority: 38 U.S.C. 3501)
(c) Basic ending date. The eligible person's 26th birthday.
(d) Modified ending date. When one of the following occurs between
ages 18 and 26, the ending date will be the eligible person's 26th
birthday or 8 years from the date of happening specified in paragraphs
(d) (1) to (7) of this section and 10 years in paragraph (d)(8);
whichever is later. When paragraph (d)(9) is applicable, the ending
date will be as stated in paragraph (d)(9). Where the ending date is
subject to modification under more than one of paragraph (d) (3), (4),
(5), (6) or (7) of this section, the more favorable date will apply. In
no case will the modified ending date extend beyond the eligible
person's 31st birthday.
(Authority: 38 U.S.C. 3512).
(1) Effective date of permanent total rating of veteran-parent or the
date of notification to him or her of such rating, whichever is the more
advantageous to the eligible person.
(Authority: 38 U.S.C. 3512)
(2) Death of veteran-parent.
(3) Date of first unconditional discharge or release from ''duty with
the Armed Forces'' served as an eligible person if he or she served
after age 18 and before age 26. See 21.3042.
(4) Enactment of Pub. L. 88-361 on July 7, 1964, providing
eligibility based on permanent total disability; that is, July 6, 1969.
(5) Enactment of Pub. L. 89-349 on November 8, 1965, providing
eligibility based on peacetime service after the Spanish-American War
and prior to September 16, 1940; or during World War I or World War II
solely by reason of the provisions of 38 U.S.C. 1101; that is, November
7, 1970.
(6) Enactment of Pub. L. 89-613 on September 30, 1966, providing
eligibility based on service with the Philippine Commonwealth Army or as
a Philippine Scout as defined in 3.8 (b), (c), or (d) of this chapter;
that is, September 29, 1971. See 3.807 of this chapter.
(7) Effective date of Pub. L. 90-77, section 307, October 1, 1967,
providing eligibility for persons solely by virtue of that section who
were over age 23 and below age 26 on that date; that is September 30,
1972.
(8) Enactment of Pub. L. 92-540 (86 Stat. 1074) on October 24, 1972,
providing for a course of apprentice or other on-the-job training
approved under the provisions of 21.4261 or 21.4262; that is, October
24, 1982 or until age 31, whichever is earlier.
(9) The child may lose eligibility through ceasing to be the
veteran's stepchild either because the veteran and the child's natural
or adoptive parent divorce or because the veteran and the child's
natural or adoptive parent separate and the child is no longer a member
of the veteran's household. If this occurs, the ending date of the
child's period of eligibility will be determined as follows:
(i) If the child ceases to be the veteran's stepchild while the child
is not in training, the ending date of the child's eligibility shall be
the date on which the child ceases to be the veteran's stepchild.
(ii) If the child ceases to be the veteran's stepchild while the
child is in training in a school organized on a term, semester or
quarter basis, the ending date of the child's eligibility will be the
last date of the term, semester or quarter during which the child ceases
to be the veteran's stepchild.
(iii) If the child ceases to be the veteran's stepchild while the
child is in training in a school not organized on a term, semester or
quarter basis, the ending date of the child's period of eligilibity will
be the end of the course or 12 weeks from the date on which the child
ceases to be the veteran's stepchild, whichever is earlier. See
21.4135(z).
(Authority: 38 U.S.C. 101(4)(a), 3501).
(e) Extensions to ending dates. (1) Suspension of program due to
conditions determined by the Department of Veterans Affairs to have been
beyond the person's control (see 21.3043): extended for length of
period of suspension, but not beyond age 31. See 21.3040(d).
(2) Period of eligibility as specified in paragraph (c) or (d) of
this section ends while enrolled in an educational institution regularly
operated on the quarter or semester system and such period ends during a
quarter or semester, such period shall be extended to the end of the
quarter or semester, or for courses at educational institutions operated
on other than a quarter or semester system, if the period ends after a
major portion of the course is completed, such period shall be extended
to the end of the course, or until 12 weeks have expired, whichever
first occurs. Extension may be authorized beyond age 31, but may not
exceed maximum entitlement. See 21.3044(a). No extension of the period
of eligibility will be made where training is pursued in a training
establishment as defined in 21.4200(c).
(Authority: 38 U.S.C. 3512(a)(5))
(3) Child is enrolled and eligibility ceases because veteran is no
longer rated permanently and totally disabled: extended to date
specified in paragraph (e)(2) of this section without regard to whether
the midpoint of the quarter, semester or term has been reached. See
21.4135(o).
(4) Child is enrolled and eligibility ceases because the member of
the Armed Forces upon whose service eligibility is based is no longer
listed by the Secretary concerned in any of the categories specified in
21.3021(a)(1)(iv): extended to date specified in paragraph (e)(2) of
this section without regard to whether the midpoint of the quarter,
semester or term has been reached. See 21.4135(o).
(30 FR 15632, Dec. 18, 1965, as amended at 31 FR 6773, May 6, 1966;
31 FR 13993, Nov. 2, 1966; 32 FR 13402, Sept. 23, 1967; 34 FR 842,
Jan. 18, 1969; 39 FR 38228, Oct. 30, 1974; 40 FR 42879, Sept. 17,
1975; 41 FR 47929, Nov. 1, 1976; 43 FR 35290, Aug. 9, 1978; 48 FR
57275, Dec. 29, 1983; 54 FR 31952, Aug. 3, 1989; 54 FR 42501, Oct. 17,
1989)
38 CFR 21.3042 Service with Armed Forces.
(a) No educational assistance under Chapter 35 may be provided an
otherwise eligible person during any period he or she is on duty with
the Armed Forces. See 21.3021 (e) and (f). This does not apply to
brief periods of active duty for training. See 21.4135(n). For Chapter
34 benefits see 21.4235.
(b) If the eligible person served with the Armed Forces, his or her
discharge or release from each period of service must have been under
conditions other than dishonorable.
(Authority: 38 U.S.C. 3501(d))
(c) The term unconditional discharge, as used in 21.3041 means
unconditional discharge or release from duty with the Armed Forces. See
3.13 of this chapter.
(d) For the eligible child called to active duty after July 30, 1961,
and before August 1, 1962, by (1) an order issued to him or her as a
Reserve or (2) an extension of an enlistment, appointment or period of
duty pursuant to section 2 of Pub. L. 87-117, 75 Stat. 242 (Berlin
Crisis), the extended period under 21.3041 will be further extended by
the number of months and days served during such period.
(30 FR 15633, Dec. 18, 1965, as amended at 34 FR 842, Jan. 18, 1969;
36 FR 2508, Feb. 5, 1971; 41 FR 42929, Nov. 1, 1976)
38 CFR 21.3043 Suspension of program; child.
For an eligible person who suspends his program due to conditions
determined by the Department of Veterans Affairs to have been beyond his
or her control the period of eligibility may, upon his request, be
extended by the number of months and days intervening the date the
suspension began and the date the reason for suspension ceased to exist.
The burden of proof is on the eligible person to establish that
suspension of a program was due to conditions beyond his or her control.
The period of suspension shall be considered to have ended as of the
date of the person's first available opportunity to resume training
after the condition which caused it ceased to exist. The following
circumstances may be considered as beyond the eligible person's control:
(a) While in active pursuit of a program of education he or she is
appointed by the responsible governing body of an established church,
officially charged with the selection and designation of missionary
representatives, in keeping with its traditional practice, to serve the
church in an official missionary capacity and is thereby prevented from
pursuit of his or her program of studies.
(b) Immediate family or financial obligations beyond his or her
control require the eligible person to take employment, or otherwise
preclude pursuit of his or her program.
(c) Unavoidable conditions arising in connection with the eligible
person's employment which preclude pursuit of his or her program.
(d) Pursuit of his or her program is precluded because of the
eligible person's own illness or illness or death in his or her
immediate family.
(e) Active duty, including active duty for training in the Armed
Forces.
(41 FR 47929, Nov. 1, 1976)
38 CFR 21.3044 Entitlement.
(a) Limitations on entitlement. Each eligible person in entitled to
educational assistance not in excess of 45 months, or the equivalent
thereof in part-time training. The Department of Veterans Affairs will
not authorize an extension of entitlement except as provided in
paragraph (c) of this section. The period of entitlement when added to
education or training received under any or all of the laws cited in
21.4020 will not exceed 48 months of full-time educational assistance.
The period of entitlement will not be reduced by any period during which
employment adjustment allowance was paid after the eligible person
completes a period of rehabilitation and reaches a point of
employability.
(b) Continuous pursuit is not required. The 45-month period of
entitlement is any 45 months within the period of eligibility. The
eligible person is not required to pursue his or her program for 45
consecutive months.
(Authority: 38 U.S.C. 3511(a))
(c) Exceeding the 45 months limitation. The 45 months limitation may
be exceeded only in the following cases:
(1) Where no charge against the entitlement is made based on a course
or courses pursued by a spouse or surviving spouse under the special
assistance for the educationally disadvantaged program (See 21.4237(d);
or
(2) Where special restorative training authorized under 21.3300
exceeds 45 months.
(Authority: 38 U.S.C. 3541(b), 3533(b))
(49 FR 48692, Dec. 14, 1984)
38 CFR 21.3045 Entitlement charges.
VA will make charges against an eligible person's entitlement only
when required by this section. Charges for institutional training will
be based upon the principle that an eligible person who trains full time
for 1 day should be charged 1 day of entitlement.
(a) No entitlement charge for eligible persons receiving tutorial
assistance. VA will make no charge against the entitlement of an
eligible person for tutorial assistance received in accordance with
21.4236.
(Authority: 38 U.S.C. 3492, 3533(b))
(b) Entitlement charges for elementary and secondary education.
(1) When an eligible spouse or surviving spouse is pursuing a course
leading to a secondary school diploma or an equivalency certificate as
described in 21.4235 of this part, there are two sets of circumstances
which will always result in VA's making no charge against his or her
entitlement. These are as follows:
(i) Either the eligible spouse or surviving spouse completed training
during the period beginning on October 1, 1980, and ending on August 14,
1989, and remained continuously enrolled from October 1, 1980, through
the time the spouse or surviving spouse either completed training or
August 14, 1989, whichever is earlier; or
(ii) The eligible spouse or surviving spouse completed training
before August 15, 1989, and received educational assistance based upon
the tuition and fees charged for the course.
(2) When an eligible spouse or surviving spouse is pursuing a course
leading to a secondary school diploma or an equivalency certificate as
described in 21.4235 of this part, the following circumstances will
always result in VA's making a charge against his or her entitlement
unless the provisions of paragraph (d) of this section would exempt the
spouse or surviving spouse from receiving an entitlement charge.
(i) The spouse or surviving spouse elects to receive dependents'
educational assistance at the rate described in 21.4137(a), and
(ii) Either was not pursuing a course leading to a secondary school
diploma or equivalency certificate on October 1, 1980, or has not
remained continuously enrolled in such a course since October 1, 1980.
(3) When an eligible person pursues refresher, remedial or deficiency
training before August 15, 1989, the following provisions govern the
charge against the entitlement.
(i) VA will not make a charge against the entitlement of an eligible
spouse or surviving spouse.
(ii) VA will make a charge against the entitlement of an eligible
child.
(4) The following provisions apply to an eligible person for training
received after August 14, 1989. When he or she is pursuing a course
leading to a secondary school diploma or equivalency certificate or
refresher, remedial or deficiency training.
(i) VA will make no charge against the entitlement of an eligible
person for the first five months of full time pursuit (or its equivalent
in part-time pursuit).
(ii) VA will make a charge against the entitlement of an eligible
person for pursuit in excess of the pursuit described in paragraph
(b)(4)(i) unless the provisions of paragraph (d) of this section would
exempt the eligible person from receiving an entitlement charge.
(Authority: 38 U.S.C. 3511(a), 3533(a); Pub. L. 100-689, Pub. L.
102-127
(c) Other courses for which entitlement will be charged. Except when
the requirements of paragraph (d) of this section are met, VA will make
a charge against the period of entitlement --
(1) An eligible person for pursuit of a program of apprenticeship or
other on-job training;
(2) A spouse or surviving spouse for pursuit of a correspondence
course; or
(3) An eligible person for the pursuit of any course not described in
paragraph (a) or (b) of this section.
(Authority: 38 U.S.C. 3534)
(d) Exemption from entitlement charge. (1) VA will not make a charge
against the entitlement of an eligible person for the pursuit of any
course or courses when VA finds that the eligible person --
(i) Had to discontinue pursuit of the course or courses as the result
of being ordered, in connection with the Persian Gulf War, to serve on
active duty under section 672 (a), (d), or (g), 673, 673b, or 688 of
title 10, U.S. Code; and
(ii) Failed to receive credit or training time toward completion of
the eligible person's approved educational, professional or vocational
objective as a result of having to discontinue, as described in
paragraph (d)(1)(i) of this section, his or her course pursuit.
(2) The period for which VA will not make a charge against
entitlement shall not exceed the portion of the period of enrollment in
the course or courses for which the eligible person failed to receive
credit or with respect to which the eligible person lost training time.
(Authority: 38 U.S.C. 3511(a); Pub. L. 102-127
(e) Determining entitlement charge. The provisions of this paragraph
apply to all courses except those courses for which VA is not making a
charge against the eligible person's entitlement, apprenticeship or
other on-job training, correspondence courses, and courses offered
solely through independent study.
(1) After making any adjustments required by paragraph (e)(3) of this
section, VA will make a charge against entitlement --
(i) On the basis of total elapsed time (one day for each day of
pursuit) if the eligible person is pursuing the program of education on
a full-time basis,
(ii) On the basis of a proportionate rate of elapsed time, if the
eligible person is pursuing a program of education on a three-quarter,
one-half or less than one-half time basis. For the purpose of this
computation, training time which is less that one-half, but more than
one-quarter time, will be treated as though it were one-quarter time
training.
(2) VA will compute elapsed time from the commencing date of
enrollment to date of discontinuance. If the eligible person changes
his or her training time after the commencing date of enrollment, VA
will --
(i) Divide the enrollment period into separate periods of time during
which the eligible person's training time remains constant; and
(ii) Compute the elapsed time separately for each time period.
(3) An eligible person may concurrently enroll in refresher, remedial
or deficiency training for which paragraph (b)(3) or (b)(4)(i) of this
section requires no charge against entitlement and in a course or
courses for which paragraph (b)(2) or (b)(4)(ii) or (c) of this section
requires a charge against entitlement. When this occurs, VA will charge
entitlement for the concurrent enrollment based only on pursuit of the
courses described in paragraph (b)(2) or (b)(4)(ii) or (c) of this
section, measured in accordance with 21.4270 through 21.4275 of this
part, as appropriate.
(Authority: 38 U.S.C. 3533(a); Pub. L. 100-689)
(f) Entitlement charge for pursuit solely by independent study. VA
will make charges against the entitlement of an eligible person in the
manner described in paragraph (d) of this section, if he or she is
pursuing a program of education solely by independent study. However,
the computation will always be made as though the eligible person's
training were one-quarter time.
(Authority: 38 U.S.C. 3482(b), 3532(a))
(g) Entitlement charge for apprenticeship or other on-job training.
The charge against entitlement for pursuit of apprenticeship or other
on-job training program shall be 1 month for each month of training
assistance allowance paid to the eligible person for the program. If
there is a reduction in the eligible person's monthly training
assistance allowance due to his or her failure to complete 120 hours of
training during the month, VA will combine the portions of those months
for which a reduction was made. VA will make no charge against
entitlement for the period of combined reductions.
(Authority: 38 U.S.C. 3534, 3687)
(h) Entitlement charge for correspondence courses. The charge
against entitlement for pursuit of a course exclusively by
correspondence will be 1 month for each --
(1) $220 paid after December 31, 1972, and before September 1, 1974,
to a spouse or surviving spouse as an educational assistance allowance,
(2) $260 paid after August 31, 1974, and before January 1, 1975,
(3) $270 paid after December 31, 1974, and before October 1, 1976,
(4) $292 paid after September 30, 1976, and before October 1, 1977,
(5) $311 paid after September 30, 1977, and before October 1, 1980,
(6) $327 paid after September 30, 1980, and before January 1, 1981,
(7) $342 paid after December 31, 1980, and before October 1, 1984,
(8) $376 paid after September 30, 1984 and before January 1, 1990,
and
(9) $404 paid after December 31, 1989.
(Authority: 38 U.S.C. 3686(a))
(i) Overpayment cases. VA will make a charge against entitlement for
an overpayment only if the overpayment is discharged in bankruptcy, is
waived and is not recovered, or is compromised.
(1) If the overpayment is discharged in bankruptcy or is waived and
is not recovered, the charge against entitlement will be at the
appropriate rate for the elapsed period covered by the overpayment
(exclusive of interest, administrative costs of collection, court costs
and marshal fees).
(2) If the overpayment is compromised and the compromise offer is
less than the amount of interest, administrative costs of collection,
court costs and marshal fees, the charge against entitlement will be at
the appropriate rate for the elapsed period covered by the overpayment
(exclusive of interest, administrative costs of collection, court costs
and marshal fees).
(3) If the overpayment is compromised and the compromise offer is
equal to or greater than the amount of interest, administrative costs of
collection, court costs and marshal fees, the charge against entitlement
will be determined by --
(i) Subtracting from the sum paid in the compromise offer the amount
attributable to interest, administrative costs of collection, court
costs and marshal fees,
(ii) Subtracting the remaining amount of the overpayment balance
determined in paragraph (h)(3)(i) of this section from the amount of the
original overpayment (exclusive of interest, administrative costs of
collection, court costs and marshal fees),
(iii) Dividing the result obtained in paragraph (h)(3)(ii) of this
section by the amount of the original debt (exclusive of interest,
administrative costs of collection, court costs and marshal fees), and
(iv) Multiplying the percentage obtained in paragraph (h)(3)(iii) of
this section by the amount of the entitlement otherwise chargeable for
the period of the original overpayment.
(Authority: 38 U.S.C. 3471, 3532)
(j) Interruption to conserve entitlement. An eligible person may not
interrupt a certified period of enrollment for the purpose of conserving
entitlement. An educational institution may not certify a period of
enrollment for a fractional part of the normal term, quarter or
semester, if the eligible person is enrolled for the term, quarter or
semester. VA will make a charge against entitlement for the entire
period of certified enrollment, if the eligible person is otherwise
eligible for benefits, except when benefits are interrupted under any of
the following conditions:
(1) Enrollment is actually terminated;
(2) The eligible person cancels his or her enrollment, and does not
negotiate an educational benefits check for any part of the certified
period of enrollment;
(3) The eligible person interrupts his or her enrollment at the end
of any term, quarter, or semester within the certified period of
enrollment, and does not negotiate a check for educational benefits for
the succeeding term, quarter, or semester;
(4) The eligible person requests interruption or cancellation for any
break when a school was closed during a certified period of enrollment,
and VA continued payments under an established policy based upon an
Executive Order of the President or an emergency situation. Whether the
eligible person negotiated a check for educational benefits for the
certified period is immaterial.
(Authority: 38 U.S.C. 3511)
(k) Education loan after otherwise applicable delimiting date --
spouse or surviving spouse. VA will make a charge against the
entitlement of a spouse or surviving spouse who receives an education
loan pursuant to 21.4501(c) at the rate of 1 day for each day of
entitlement that would have been used had the spouse or surviving spouse
been in receipt of educational assistance allowance for the period for
which the loan was granted.
(Authority: 38 U.S.C. 3512)
(55 FR 28024, July 9, 1990, as amended at 57 FR 29799, July 7, 1992;
58 FR 26240, May 3, 1993)
38 CFR 21.3046 Periods of eligibility; spouses and surviving spouses.
This section states how VA will compute the beginning date, the
ending date and the length of a spouse's or surviving spouse's period of
eligibility. The period of eligibility of a spouse computed under the
provisions of paragraph (a) of this section will be recomputed under the
provisions of paragraph (b) of this section if her or his status changes
to that of surviving spouse.
(Authority: 38 U.S.C. 3512(b))
(a) Beginning date of eligibility period-spouses. (1) If the
permanent total rating is effective before December 1, 1968, the
beginning date of the 10-year period of eligibility is December 1, 1968.
(2) The beginning date of eligibility --
(i) Shall be determined as provided in paragraph (a)(2) of this
section when --
(A) The permanent total rating is effective after November 30, 1968,
or the notification to the veteran of the rating was after that date,
and
(B) Eligibility does not arise under 21.3021(a)(3)(ii) of this part.
(ii) For spouses for whom VA made a final determination of
eligibility before October 28, 1986, shall be --
(A) The effective date of the rating, or
(B) The date of notification, whichever is more advantageous to the
spouse.
(iii) For spouses for whom VA made a final determination of
eligibility after October 27, 1986, shall be --
(A) The effective date of the rating, or
(B) The date of notification, or
(C) Any date between the dates specified in paragraphs (a)(2)(iii)
(A) and (B) of this section as chosen by the eligible spouse.
(iv) May not be changed once a spouse has chosen it as provided in
paragraph (a)(2)(iii) of this section.
(3) If eligibility arises under 21.3021(a)(3)(ii) of this part, the
beginning date of the 10-year eligibility period is --
(i) December 24, 1970, or
(ii) The date the member of the Armed Forces on whose service
eligibility is based was so listed by the Secretary concerned, whichever
last occurs.
(Authority: 38 U.S.C. 3501(a); Pub. L. 99-576)
(b) Beginning date of eligibility period-surviving spouses. (1) If
VA determines before December 1, 1968, that the veteran died of a
service-connected disability, the beginning date of the 10-year period
is December 1, 1968.
(Authority: 38 U.S.C. 3512)
(2) If the veteran's death occurred before December 1, 1968, but VA
does not determine that the veteran died of a service-connected
disability until after November 30, 1968, the beginning date of the
10-year period is the date on which VA determines that the veteran died
of a service-connected disability.
(3) If the veteran's death occurred before December 1, 1968, while a
total, service-connected disability evaluated as permanent in nature was
in existence, the beginning date of the 10-year period is December 1,
1968.
(4) If the veteran's death occurred after November 30, 1968, and VA
makes a final decision concerning the surviving spouse's eligibility for
dependents' educational assistance before October 28, 1986, the
beginning date of the 10-year period is --
(i) The date of death of the veteran who dies while a total,
service-connected disability evaluated as permanent in nature was in
existence, or
(ii) The date on which VA determines that the veteran died of a
service-connected disability.
(5) If the veteran's death occurred after November 30, 1968, and VA
makes a final decision concerning the surviving spouse's eligibility for
dependents educational assistance after October 27, 1986, VA will
determine the beginning date of the 10-year period as follows.
(i) If the surviving spouse's eligibility is based on the veteran's
death while a total, service-connected disability evaluated as permanent
in nature was in existence, the beginning date of the 10-year period is
the date of death.
(ii) If the surviving spouse's eligibility is based on the veteran's
death from a service-connected disability, the surviving spouse will
choose the beginning date of the 10-year period. That date will be no
earlier than the date of death and no later than the date of the VA
determination that the veteran's death was due to a service-connected
disability.
(Authority: 38 U.S.C. 3512(b); Pub. L. 99-576)
(6) Once a surviving spouse has chosen a beginning date of
eligibility as provided in paragraph (b)(5) of this section, the
surviving spouse may not revoke that choice.
(Authority: 38 U.S.C. 3512(b); Pub. L. 99-576)
(c) Ending date of eligibility period. (1) The period of eligibility
cannot exceed 10 years and can be extended only as provided in
paragraphs (d) and (e) of this section.
(2) If eligibility arises before October 24, 1972, educational
assistance based on a course of apprentice or other on-job training or
correspondence approved under the provisions 21.4256, 21.4261, and
21.4262 of this part will not be afforded later than October 23, 1982,
unless the eligible spouse or surviving spouse qualifies for the
extended period of eligibility provided in paragraph (d) of this
section.
(Authority: 38 U.S.C. 3512)
(d) Extension to ending date. (1) The ending date of a spouse's
period of eligibility may be extended when the spouse is enrolled and
eligibility ceases for one of the following reasons:
(i) The veteran is no longer rated permanently and totally disabled;
(ii) The spouse is divorced from the veteran without fault on the
spouse's part; or
(iii) The spouse no longer is listed in any of the categories of
21.3021(a)(3)(ii) of this part.
(2) If the spouse is enrolled in a school operating on a quarter or
semester system, VA will extend the period of eligibility to the end of
the quarter or semester, regardlesss of whether the spouse has reached
the midpoint of the quarter, semester or term.
(3) If the spouse is enrolled in a school not operating on a quarter
or semester system, VA will extend the period of eligibility to the
earlier of the following:
(i) The end of the course, or
(ii) 12 weeks.
(4) If the spouse is enrolled in a course pursued exclusively by
correspondence, VA will extend the period of eligibility to whichever of
the following will result in the lessser expenditure:
(i) The end of the course, or
(ii) The total additional amount of instruction that $1,131 will
provide.
(Authority: 38 U.S.C. 3511(b))
(5) VA will not extend the period of eligibility when the spouse is
pursuing training in a training establishment as defined in 21.4200(c)
of this part.
(6) An extension may not --
(i) Exceed maximum entitlement, or
(ii) Extend beyond the delimiting date specified in paragraph (a) or
(e) of this section, as appropriate.
(Authority: 38 U.S.C. 3511(b), 3512(b), 3532, 3586)
(e) Extended period of eligibility due to physical or mental
disability. A spouse or surviving spouse shall receive an extended
period of eligibility when he or she applies for it and meets the
criteria of 21.1043(a) of this part. All other provisions of 21.1043
of this part concerning commencing dates and length of extended periods
of eligibility and discontinuance of educational assistance also apply
to spouses and surviving spouses who qualify for extended periods of
eligibility.
(Authority: 38 U.S.C. 3512(b)
(54 FR 33886, Aug. 17, 1989, as amended at 57 FR 29799, July 7, 1992;
57 FR 60735, Dec. 22, 1992)
38 CFR 21.3046 Payments
38 CFR 21.3145 Work-study allowance.
(a) Eligibility. An eligible person is eligible to receive a
work-study allowance when --
(1) The eligible person is pursuing a program of education on at
least a three-quarter-time basis,
(2) The eligible person is pursuing a program of education in a
State, and
(3) The eligible person is not pursuing a program of special
restorative training.
(Authority: 38 U.S.C. 3537)
(b) Selection criteria. When feasible VA will give priority in
selection for this allowance to veterans with service-connected
disabilities rated at 30 percent or more. VA shall consider the
following additional selection criteria:
(1) Need of the eligible person to augment his or her dependents'
educational assistance;
(2) Availability to the eligible person of transportation to the
place where his or her services are to be performed;
(3) Motivation of the eligible person; and
(4) Compatibility of the work assignment to the eligible person's
physical condition.
(Authority: 38 U.S.C. 3485, 3537)
(c) Utilization. Work-study services may be utilized in connection
with --
(1) Outreach services programs as carried out under the supervision
of a VA employee;
(2) Preparation and processing of necessary papers and other
documents at educational institutions or regional offices or facilities
of VA;
(3) Hospital and domiciliary care and medical treatment at VA
facilities; and
(4) Any other appropriate activity of VA.
(Authority: 38 U.S.C. 3485, 3537)
(d) Rate of payment. (1) In return for the eligible person's
agreement to perform services for VA totaling 25 hours times the number
of weeks contained in the eligible person's enrollment period, VA will
pay an allowance in an amount equal to the higher of --
(i) The hourly minimum wage in effect under section 6(a) of the Fair
Labor Standards Act of 1938 times the number of hours the eligible
person has agreed to work, or
(ii) The hourly minimum wage under comparable law of the State in
which the services are to be performed times the number of hours the
eligible person has agreed to work.
(2) VA will pay proportionately less to eligible persons who agree to
perform a lesser number of hours of services.
(Authority: 38 U.S.C. 3485, 3537)
(e) Payment in advance. VA will pay in advance an amount equal to 40
percent of the total amount payable under the contract.
(Authority: 38 U.S.C. 3485, 3537)
(f) Eligible person reduces rate of training. In the event the
eligible person reduces his or her training to less than three-quarter
time before completing an agreement, the eligible person, with the
approval of the Director of the VA field station, or designee, may be
permitted to complete the portions of an agreement in the same or
immediately following term, quarter or semester in which the eligible
person ceases to be a three-quarter-time student.
(Authority: 38 U.S.C. 3485, 3537)
(g) Eligible person terminates training. (1) If the eligible person
terminates all training before completing an agreement, the Director of
the VA field station or designee --
(i) May permit him or her to complete the portion of the agreement
represented by the money VA has advanced the eligible person for which
he or she has performed no service, but
(ii) Will not permit him or her to complete that portion of an
agreement for which no advance has been made.
(2) The eligible person must complete the portion of an agreement in
the same or immediately following term, quarter or semester in which the
eligible person terminates training.
(Authority: 38 U.S.C. 3485, 3537)
(h) Indebtedness for unperformed service. (1) If the eligible person
has received an advance for hours of unperformed service, and VA has
evidence that he or she does not intend to perform that service, the
advance --
(i) Will be a debt due the United States, and
(ii) Will be subject to recovery the same as any other debt due the
United States.
(2) The amount of indebtedness for each hour of unperformed service
shall equal the hourly wage that formed the basis for the contract.
(Authority: 38 U.S.C. 3485, 3537)
(i) Survey. VA will conduct an annual survey of its regional offices
to determine the number of eligible persons whose services can be
utilized effectively.
(Authority: 38 U.S.C. 3485, 3537)
(57 FR 29799, July 7, 1992)
38 CFR 21.3145 Special Restorative Training
38 CFR 21.3300 Special restorative training.
(a) Purpose of special restorative training. The Department of
Veterans Affairs may prescribe special restorative training where needed
to overcome or lessen the effects of a physical or mental disability for
the purpose of enabling an eligible child to pursue a program of
education, special vocational program or other appropriate goal.
Medical care and treatment or psychiatric treatment are not included.
(b) Special restorative training courses. The counseling
psychologist, after consulting with the Vocational Rehabilitation Panel,
may prescribe for special restorative training purposes courses such as
--
(1) Speech and voice correction or retention,
(2) Language retraining,
(3) Speech (lip) reading,
(4) Auditory training,
(5) Braille reading and writing,
(6) Training in ambulation,
(7) One-hand typewriting,
(8) Nondominant handwriting,
(9) Personal, social and work adjustment training,
(10) Remedial reading, and
(11) Courses at special schools for mentally and physically disabled
or
(12) Courses provided at facilities which are adapted or modified to
meet special needs of disabled students.
(Authority: 38 U.S.C. 3540)
(c) Duration of special restorative training. VA may provide special
restorative training in excess of 45 months where an additional period
of time is needed to complete the training. Entitlement, including any
authorized in excess of 45 months, may be expended through an
accelerated program requiring a rate of payment for tuition and fees in
excess of $119 per calendar month. See 21.3303 and 21.3333(b).
(Authority: 38 U.S.C. 3541(b), 3542)
(d) Special restorative training precluded in Department of Veterans
Affairs facilities. Special restorative training will not be provided
in Department of Veterans Affairs facilities.
(Authority: 38 U.S.C. 3543(b))
(48 FR 37973, Aug. 22, 1983, as amended at 49 FR 42725, Oct. 24,
1984; 50 FR 19934, May 13, 1985)
38 CFR 21.3301 Need.
(a) Determination of need. When special restorative training has
been requested or is being considered for a handicapped child, a
counseling psychologist will obtain all information necessary to
determine the need for and feasibility of special restorative training.
After the counseling psychologist completes this task, he or she will
refer the case to the Vocational Rehabilitation Panel. The panel will
consider whether --
(1) There exists a handicap which will interfere with pursuit of a
program of education;
(2) It is in the best interests of an eligible child to begin special
restorative training after his or her 14th birthday;
(3) The period of special restorative training materially will
improve the eligible child's ability to:
(i) Pursue a program of education,
(ii) Pursue a program of specialized vocational training,
(iii) Obtain continuing employment in a sheltered workshop, or
(iv) Adjust in his or her family or community;
(Authority: 38 U.S.C. 3541(a))
(4) The special restorative training may be pursued concurrently with
a program of education; and
(5) Training will affect adversely the child's mental or physical
condition;
(6) The Department of Veterans Affairs:
(i) Has considered assistance available under provisions of
State-Federal programs for education of handicapped children, and
(ii) Has determined that it is in the child's interest to receive
benefits under Chapter 35,
(Authority: 38 U.S.C. 3541(a))
(b) Report. The Vocational Rehabilitation Panel will prepare a
written report of its findings and recommendations as to the need for
assistance and the types of assistance which should be provided. The
report will be sent to the counseling psychologist.
(c) Development and implementation. Following consultation with the
panel or receipt of the panel's report, or both, the counseling
psychologist will determine the need and feasibility of special
restorative training. If an affirmative finding is made, an
individualized, written plan comparable to that developed in cases of
extended evaluation under 38 U.S.C. Chapter 31 will be prepared. The
plan will be developed jointly with the eligible child and parent or
guardian.
(Authority: 38 U.S.C. 3541(a))
(d) Notification of disallowance. When a parent or guardian has
requested special restorative training on behalf of an eligible child,
and the counseling psychologist finds that this training is not needed
or will not materially improve the child's condition, the Department of
Veterans Affairs will inform the parent or guardian in writing of the
finding. The Department of Veterans Affairs will also inform the parent
or guardian of his or her appeal rights.
(e) Reentrance after interruption. The case of an eligible child
shall be referred to the panel for consideration of whether the eligible
child may be permitted reentrance into special restorative training
following interruption. The panel will recommend approval to the
counseling psychologist if there is a reasonable expectation that the
purpose of special restorative training will be accomplished. See
21.3306.
(Authority: 38 U.S.C. 3540)
(48 FR 37973, Aug. 22, 1983, as amended at 49 FR 42725, Oct. 24,
1984)
38 CFR 21.3302 Agreements.
(a) Agreements to provide training. The Department of Veterans
Affairs may make agreements with public or private educational
institutions or others to provide suitable and necessary special
restorative training for an eligible child.
(b) Tuition charge. When a customary tuition charge is not
applicable, the agreement will include the fair and reasonable amounts
which may be charged the parent or guardian for the training provided an
eligible child.
(c) Content of agreement. Each agreement will include the same type
of information required for special restorative training for disabled
veterans under 38 U.S.C. Chapter 31, including the requirement that the
educational institutions, or others with whom arrangements have been
made, report to the Department of Veterans Affairs promptly the eligible
child's enrollment in, interruption or termination of the course of
special restorative training.
(Authority: 38 U.S.C. 3543)
(48 FR 37973, Aug. 22, 1983)
38 CFR 21.3303 Extent of training.
(a) Length of special restorative training. Ordinarily, special
restorative training may not exceed 12 months. When the counseling
psychologist, after consulting with the Vocational Rehabilitation Panel,
determines that more than 12 months of training is necessary, he or she
will refer the program to the Director, Vocational Rehabilitation and
Counseling Service for prior approval. Where the plan for a program of
special restorative training itself (not in combination with the program
of education) will require more than 45 months (or its equivalent in
accelerated payments) the plan will be included in the recommendation to
the Director, Vocational Rehabilitation and Education Service for
approval.
(Authority: 38 U.S.C. 3543(b))
(b) Age limitation. No eligible child may receive special
restorative training after reaching age 31.
(Authority: 38 U.S.C. 3512)
(c) Full-time training. An eligible child will pursue special
restorative training on a full-time basis.
(1) Full-time training requires training for:
(i) That amount of time per week which commonly is required for a
full-time course at the educational institution when, based on medical
findings, the Department of Veterans Affairs determines that the
eligible child's physical or mental condition permits training for that
amount of time, or
(ii) The maximum time per week permitted by the child's disability,
as determined by the Department of Veterans Affairs, based on medical
findings, if the disability precludes the weekly training time stated in
paragraph (c)(1)(i) of this section.
(2) If the hours per week that can reasonably be devoted to
restorative training will not of themselves equal the time required by
paragraph (c)(1) of this section, the course will be supplemented with
subject matter which will contribute toward the objective of the program
of education.
(Authority: 38 U.S.C. 3542(c))
(48 FR 37973, Aug. 22, 1983, as amended at 49 FR 42726, Oct. 24,
1984)
38 CFR 21.3304 Assistance during training.
(a) General. A vocational rehabilitation specialist will provide the
professional and technical assistance needed by the eligible child in
pursuing special restorative training. The assistance will be timely,
sustained and personal.
(b) Adjustments in the training situation. The vocational
rehabilitation specialist must be continually aware of the eligible
child's progress. At frequent intervals he or she will determine
whether the eligible child is progressing satisfactorily. When the
vocational rehabilitation specialist determines that adjustments are
needed in the course or in the training situation, he or she will act
immediately to bring about the adjustments in accordance with the
following:
(1) When the eligible child or his or her instructor indicates
dissatisfaction with elements of the program, the vocational
rehabilitation specialist, through personal discussion with the eligible
child or his or her instructor or both, will, if possible, correct the
difficulty through such means as making minor adjustments in the course
or by persuading the eligible child to give more attention to
performance.
(2) When major difficulties cannot be corrected, the vocational
rehabilitation specialist will prepare a report of pertinent facts and
recommendations for action by the counseling psychologist in
consultation with the Vocational Rehabilitation Panel.
(3) Action will be taken to terminate the eligible child's course at
the proper time so that his or her entitlement may be conserved when the
vocational rehabilitation specialist determines that:
(i) The eligible child is progressing much faster than anticipated,
and
(ii) The eligible child's course may be terminated with satisfactory
results before the time originally planned.
(Authority: 38 U.S.C. 3541)
(48 FR 37973, Aug. 22, 1983, as amended at 49 FR 42726, Oct. 24,
1984)
38 CFR 21.3305 ''Interrupted'' status.
(a) Special restorative training should be uninterrupted. An
eligible child once entered into special restorative training should
pursue his or her course to completion without interruption. Wherever
possible, continuous training shall be provided for each eligible child,
including training during the summer, except where, because of his or
her physical condition or other good reason, it would not be to his or
her best interest to pursue training. As long as the eligible child is
progressing satisfactorily toward overcoming his or her handicap, the
eligible child will be continued in his or her course of training
without accounting for days of nonattendance within the authorized
enrollment.
(Authority: 38 U.S.C. 3541)
(b) Interrupting special restorative training. Special restorative
training will be interrupted as necessary under the following
conditions:
(1) During summer vacations or periods when no instruction is given
before and after summer sessions.
(2) During a prolonged period of illness or medical infeasibility.
(3) When the eligible child voluntarily abandons special restorative
training.
(4) When the eligible child fails to make satisfactory progress in
the special restorative training course.
(5) When the eligible child is no longer acceptable to the
institution because of failure to maintain satisfactory conduct or
progress in accordance with the rules of the institution.
(6) When the eligible child's progress is materially retarded because
of his or her negligence, lack of application or misconduct.
(Authority: 38 U.S.C. 3541, 3543(b))
(48 FR 37973, Aug. 22, 1983)
38 CFR 21.3306 Reentrance after interruption.
When a course of special restorative training has been interrupted
and the eligible child presents himself or herself for reentrance, the
Department of Veterans Affairs will act as follows:
(a) Action by a vocational rehabilitation specialist. A vocational
rehabilitation specialist will approve reentrance when special
restorative training was interrupted:
(1) For a scheduled vacation period, such as a summer break,
(2) For a short period of illness, or
(3) For other reasons which permit reentrance in the same course of
special restorative training without corrective action.
(Authority: 38 U.S.C. 3543(b))
(b) Referral to the counseling psychologist. The vocational
rehabilitation specialist will refer the eligible child's case to the
counseling psychologist when special restorative training was
interrupted --
(i) By reason of failure to maintain satisfactory conduct or
progress, or
(ii) For any other reason, which requires corrective action, such as
changes of place of training, change of course, personal adjustment,
etc.
(2) The counseling psychologist will consult with the Vocational
Rehabilitation Panel. If he or she determines that the conditions which
caused the interruption can be overcome, he or she will approve the
necessary adjustment.
(3) The counseling psychologist will make a finding of infeasibility
if --
(i) All efforts to effect proper adjustment in the case have failed;
and
(ii) There is substantial evidence, resolving any reasonable doubt in
favor of the child (as discussed in 3.102 of this chapter), that
additional efforts will be unsuccessful.
(Authority: 38 U.S.C. 3541, 3543(b))
(48 FR 37973, Aug. 22, 1983, as amended at 49 FR 42726, Oct. 24,
1984)
38 CFR 21.3307 ''Discontinued'' status.
(a) Placement in ''discontinued'' status. If reentrance from
interrupted status into a program of special restorative training is not
approved by a counseling psychologist under the provisions of 21.3306,
the vocational rehabilitation specialist will place the case in
discontinued status.
(b) Notification. In any case of discontinuance the Department of
Veterans Affairs will:
(1) Notify the eligible child's parent or guardian of the action
taken, and
(2) Inform him or her of the eligible child's potential right to a
program of education.
(c) Effect of discontinuance. An eligible child who has been placed
in discontinued status is precluded from any further pursuit of special
restorative training until a Department of Veterans Affairs counseling
psychologist in the Vocational Rehabilitation and Counseling Division
determines that the cause of the discontinuance has been removed.
(Authority: 38 U.S.C. 3543(b))
(48 FR 37973, Aug. 22, 1983, as amended at 49 FR 42726, Oct. 24,
1984)
38 CFR 21.3307 Payments; Special Restorative Training
38 CFR 21.3330 Payments.
(a) Payments will be made to the person designated to receive the
payments under the provisions of 21.4139.
(b) VA will pay special training allowance only for the period of the
eligible child's approved enrollment as certified by the vocational
rehabilitation specialist. In no event, however, will VA pay such
allowance for any period during which:
(1) The eligible child is not pursuing the prescribed course of
special restorative training that has been determined to be full-time
training with respect to his or her capacities.
(2) An educational assistance allowance is paid.
(Authority: 38 U.S.C. 3542)
(c) The following regulations governing the payment of educational
assistance allowance apply to the payment of special restorative
training allowance:
(1) Section 21.4140, Apportionment;
(2) Section 21.4141, Offsets; pension, compensation, and dependency
and indemnity compensation.
(30 FR 15646, Dec. 18, 1965, as amended at 31 FR 6774, May 6, 1966;
50 FR 21606, May 28, 1985)
38 CFR 21.3331 Commencing date.
The commencing date of an authorization of a special training
allowance will be the date of entrance or reentrance into the prescribed
course of special restorative training, or the date the counseling
psychologist approved the course for the eligible child whichever is
later. See also 21.4131.
(Authority: 38 U.S.C. 3542)
(49 FR 42726, Oct. 24, 1984)
38 CFR 21.3332 Discontinuance dates.
VA will discontinue special training allowance as provided in this
section on the earliest date of the following:
(a) The ending date of the course.
(b) The ending date of the period of enrollment as certified by the
vocational rehabilitation specialist.
(c) The ending date of the period of eligibility.
(d) The expiration of the eligible child's entitlement.
(e) Date of interruption of course as determined by the vocational
rehabilitation specialist under 21.3305.
(f) Date of discontinuance under the applicable provisions of
21.4135.
(Authority: 38 U.S.C. 3543(b))
(50 FR 21606, May 28, 1985)
38 CFR 21.3333 Rates.
(a) Rates. Special training allowance is payable at the following
monthly rate effective January 1, 1990 except as provided in paragraph
(c) of this section.
(Authority: 38 U.S.C. 3542)
(b) Accelerated charges. (1) Effective January 1, 1990 VA may pay
the additional monthly rate if the parent or guardian concurs in having
the eligible child's period of entitlement reduced by 1 day for each
$13.46 that the special training allowance exceeds the basic monthly
rate of $404.
(2) VA will:
(i) Charge fractions of more than one-half day as 1 day;
(ii) Disregard fractions of one-half or less; and
(iii) Record charges when the eligible child is entered into
training.
(Authority: 38 U.S.C. 3542)
(c) Payments in Philippine pesos. Special training allowance will be
payable at a rate in Philippine pesos equivalent to $0.50 for each
dollar authorized in those instances in which:
(1) Entitlement is based on the service of a veteran in the
Philippine Commonwealth Army, or as a Philippine Scout as defined in
3.8 (b), (c), or (d) of this chapter; or
(2) The eligible child is pursuing training at an institution located
in the Republic of the Philippines.
(Authority: 38 U.S.C. 3532, 3542, 3565)
(35 FR 9814, June 16, 1970, as amended at 48 FR 37975, Aug. 22, 1983;
50 FR 19934, May 13, 1985; 57 FR 29799, July 7, 1992)
38 CFR 21.3333 Subpart D -- Administration of Educational Benefits; 38
U.S.C. Chapters 34, 35, and 36
Authority: 38 U.S.C. 501(a).
Source: 31 FR 6774, May 6, 1966, unless otherwise noted.
38 CFR 21.3333 Administrative
38 CFR 21.4001 Delegations of authority.
(a) Except as otherwise provided, authority is delegated to the Chief
Benefits Director and to supervisory or adjudicative personnel within
the jurisdiction of the Vocational Rehabilitation and Education Service,
designated by him or her to make findings and decisions under 38 U.S.C.
Chapters 34, 35, and 36 and the applicable regulations, precedents and
instructions, as to programs authorized by these paragraphs.
(b) Authority is delegated to the Chief, Benefits Director and the
Director, Vocational Rehabilitation and Education Service, to enter into
agreements for the reimbursement of State approving agencies under
21.4153.
(Authority: 38 U.S.C. 512(a))
(c) Authority is delegated to the Director, Vocational Rehabilitation
and Education Service, to exercise the functions required of the
Secretary for:
(1) Waiver of penalties for conflicting interests as provided by
21.4005;
(2) Actions otherwise required of State approving agencies under
21.4150(c);
(3) Approval of courses under 21.4250(c)(2).
(Authority: 38 U.S.C. 512(c))
(d) The Chief Benefits Director is delegated responsibility for
obtaining evidence of voluntary compliance for vocational
rehabilitation, education and special restorative training to implement
Title VI, Civil Rights Act of 1964. Authority is delegated to him or
her and designee to take any necessary action as to programs of
vocational rehabilitation, education or special restorative training
under 38 U.S.C. Chapters 31, 34, 35 and 36 for the purpose of securing
evidence of voluntary compliance directly or through the agencies to
whom the Secretary has delegated responsibility for various schools or
training establishments to implement 18.1 through 18.13 of this
chapter.
(e) The Chief Benefits Director is delegated responsibility for
obtaining evidence of voluntary compliance from recognized national
organizations whose representatives are afforded space and office
facilities in facilities under his or her jurisdiction.
(f) The Chief Benefits Director is delegated responsibility to enter
into an agreement with the Federal Trade Commission to utilize, where
appropriate, its services and facilities, consistent with its available
resources, to carry out investigations and make determinations as to
enrollment of an eligible veteran or eligible person in any course
offered by an institution which utilizes advertising, sales, or
enrollment practices of any type which are erroneous, deceptive, or
misleading either by actual statement, omission, or intimation.
(Authority: 38 U.S.C. 3696)
(g) Authority is delegated to the Director, Vocational Rehabilitation
and Education Service to exercise the functions required of the
Secretary for approval of courses under 21.4250(c)(1).
(Authority: 38 U.S.C. 512(a))
(31 FR 6774, May 6, 1966, as amended at 40 FR 31759, July 29, 1975;
48 FR 37975, Aug. 22, 1983; 50 FR 46764, Nov. 13, 1985)
38 CFR 21.4002 Finality of decisions.
(a) The decision of a duly constituted agency of original
jurisdiction on which an action was predicated will be final and binding
upon all field offices of the Department of Veterans Affairs as to
conclusions based on evidence on file at that time and will not be
subject to revision on the same factual basis except by duly constituted
appellate authorities or except as provided in 21.4003. (See 19.192
and 19.183 of this chapter.)
(b) Current determinations of line of duty, character of discharge,
relationship, and other pertinent elements of eligibility for a program
of education or special restorative training, made by either an
adjudicative activity or an insurance activity by application of the
same criteria and based on the same facts are binding one upon the other
in the absence of clear and unmistakable error.
(31 FR 6774, May 6, 1966, as amended at 48 FR 37976, Aug. 22, 1983)
38 CFR 21.4003 Revision of decisions.
The revision of a decision on which an action was predicated will be
subject to the following sections:
(a) Clear and unmistakable error, 3.105(a) of this chapter;
(b) Difference of opinion, 3.105(b) of this chapter;
(c) Character of discharge, 3.105(c) of this chapter;
(d) Severance of service connection, 3.105(d) of this chapter;
(e) Veteran no longer totally and permanently disabled, 21.4135(o).
38 CFR 21.4005 Conflicting interests.
(a) General. (1) An officer or employee of VA will be immediately
dismissed from his or her office or employment, if while such an officer
or employee he or she has owned any interest in, or received any wages,
salary, dividends, profits, gratuities, or services from, any school
operated for profit in which a veteran or eligible person was pursuing a
course of education under 10 U.S.C. chapter 106 or 38 U.S.C. chapters
30, 32, 34, 35 or 36.
(Authority: 10 U.S.C. 2136(b), 38 U.S.C. 3034(a), 3241, 3683(a))
(2) VA will discontinue payments under 21.4153 to a State approving
agency when the Secretary finds that any person who is an officer or
employee of a State approving agency has, while he or she was such an
officer or employee, owned any interest in, or received any wages,
salary, dividends, profits, gratuities, or services from a school
operated for profit in which a veteran or eligible person was pursuing a
course of education or training under 10 U.S.C. chapter 106 or 38 U.S.C.
chapters 30, 32, 34, 35 or 36 unless that agency takes, without delay
such steps as may be necessary to terminate the employment of such a
person. VA will not resume payments while such a person is an officer
or employee of
(i) The State approving agency, or
(ii) State Department of Veterans' Affairs, or
(iii) State Department of Education.
(3) A State approving agency will not approve any course offered by a
school operated for profit and, if any such course has been approved,
will disapprove each such course, if it finds that any officer or
employee of the Department of Veterans Affairs, or the State approving
agency owns an interest in, or receives any wages, salary, dividends,
profits, gratuities, or service from, such school.
(4) The Secretary may, after reasonable notice, and public hearings
if requested, waive in writing the application of this paragraph in the
case of any officer or employee of the Department of Veterans Affairs or
of a State approving agency, if it is found that no detriment will
result to the United States or to veterans or eligible persons by reason
of such interest or connection of such officer or employee.
(Authority: 38 U.S.C. 3683)
(b) Waiver. (1) Where a request is made for waiver of application of
paragraph (a)(1) of this section, it will be considered that no
detriment will result to the United States or to veterans or eligible
persons by reason of such interest or connection of such officer or
employee of the Department of Veterans Affairs, if the officer or
employee:
(i) Acquired his or her interest in the school by operation of law,
or before the statute became applicable to the officer or employee, and
his or her interest has been disposed of and his or her connection
discontinued, or
(ii) Meets all of the following conditions:
(a) His or her position involves no policy determinations, at any
administrative level, having to do with matters pertaining to payment of
educational assistance allowance, or special training allowance.
(b) His or her position has no relationship with the processing of
any veteran's or eligible person's application for education or
training.
(c) His or her position precludes him or her from taking any
adjudicative action on individual applications for education or
training.
(d) His or her position does not require him or her to perform duties
involved in the investigation of irregular actions on the part of
schools or veterans or eligible persons in connection with 10 U.S.C.
chapter 106 or 38 U.S.C. chapters 30, 32, 34, 35 or 36.
(e) His or her position is not connected with the processing of
claims by, or payments to, schools, or their students enrolled under the
provisions of 10 U.S.C. chapter 106 or 38 U.S.C. chapters 30, 32, 34, 35
or 36.
(f) His or her work is not connected in any way with the inspection,
approval, or supervision of schools desiring to train veterans or
eligible persons.
(2) Where a request is made for waiver of application of paragraph
(a) (2) of this section, it will be considered that no detriment will
result to the United States or to veterans or eligible persons by reason
of such interest or connection of such officer or employee of a State
approving agency, if the officer or employee:
(i) Acquired his or her interest in the school by operation of law,
or before the statute became applicable to the officer or employee, and
his or her interest has been disposed of and his or her connection
discontinued, or
(ii) Meets all of the following conditions:
(a) His or her position does not require him or her to perform duties
involved in the investigation of irregular actions on the part of
schools or veterans or eligible persons in connection with 10 U.S.C.
chapter 106 or 38 U.S.C. chapters 30, 32, 34, 35 or 36.
(Authority: 10 U.S.C. 2136(b), 38 U.S.C. 3034(a), 3241, 3683(b))
(b) His or her work is not connected in any way with the inspection,
approval, or supervision of schools desiring to train veterans or
eligible persons.
(c) Authority. (1) Authority is delegated to the Director,
Vocational Rehabilitation and Education Service, and to the facility
head in the cases of VA employees under his or her jurisdiction, to
waive the application of paragraph (a)(1) of this section in the case of
any VA employee who meets the criteria of paragraph (b)(1) of this
section, and to deny request for a waiver which do not meet those
criteria. If the circumstances warrant, a waiver request may be
submitted to the Secretary for a decision.
(2) Authority is delegated to the Director, Vocational Rehabilitation
and Education Service, in cases of State approving agency employees to
waive the application of paragraph (a)(2) of this section in the case of
anyone who meets the criteria of paragraph (b)(2) of this section, and
to deny requests for a waiver which do not meet those criteria. If the
circumstances warrant, a waiver request may be submitted to the
Secretary for a decision.
(Authority: 38 U.S.C. 512(a))
(3) Authority is reserved to the Secretary to waive the requirement
of paragraphs (a) (1) and (2) of this section in the case of an officer
of the Department of Veterans Affairs or a State approving agency and in
the case of any employee of either who does not meet the criteria of
paragraph (b) of this section.
(d) Disapproval of courses. Where it is found that an officer or
employee of the Department of Veterans Affairs has any interest in, or
receives any wages, salary, dividends, profits, gratuities, or services
from any such school, and waiver has not been granted, the State
approving agency and the school will be notified immediately that the
courses offered by the school shall be disapproved, the reason for
disapproval, and the conditions under which the disapproval may be
lifted.
(e) Notice to veterans and eligible persons. The veteran or eligible
person will be notified in writing sent to his or her latest address of
record when:
(1) The course or courses are disapproved by the State approving
agency, or
(2) The State approving agency fails to disapprove the course or
courses within 15 days after the date of written notice to the agency,
and no waiver has been requested, or
(3) Waiver has been denied.
The veteran or eligible person will be informed that he or she may
apply for enrollment in an approved course in another school, but that
in the absence of such transfer, educational assistance allowance
payments will be discontinued effective the date of discontinuance of
the course, or the 30th day following the date of such letter, whichever
is earlier.
(f) Definition of ''officer.'' For the purposes of this section a
person will be considered to be an officer of the State approving agency
or the Department of Veterans Affairs, when he or she has authority to
exercise supervisory authority.
(31 FR 6774, May 6, 1966, as amended at 43 FR 3707, Jan. 27, 1978;
51 FR 16315, May 2, 1986)
38 CFR 21.4006 False or misleading statements.
(a) Payments may not be based on false statements. Except as
provided in this section payments may not be authorized based on a claim
where it is found that the school or any person has willfully submitted
a false or misleading claim, or that the veteran or eligible person with
the complicity of the school or other person has submitted such a claim.
A complete report of the facts will be made to the State approving
agency, and if in order to the Attorney General of the United States.
(Authority: 38 U.S.C. 3690)
(1) Where it is determined prior to payment that a certification or
claim is false or misleading, payment will be authorized for only that
portion of the claim to which entitlement is established on the basis of
other evidence of record.
(2) When the Department of Veterans Affairs discovers that a
certification or claim is false after it has released payment, the
Department of Veterans Affairs will establish an overpayment for only
that portion of the claim to which the claimant was not entitled.
(Authority: 38 U.S.C. 3680)
(b) Effect of false statements on subsequent payments. A claimant's
false or misleading statements are not a bar to payments based on
further training.
(Authority: 38 U.S.C. 3680)
(c) Forfeiture. The provisions of this section do not apply when
forfeiture of all rights has been or may be declared under the
provisions of 21.4007.
(Authority: 38 U.S.C. 6103)
(31 FR 6774, May 6, 1966, as amended at 38 FR 14932, June 7, 1973;
48 FR 37976, Aug. 22, 1983)
38 CFR 21.4007 Forfeiture.
The rights of a veteran or eligible person to receive educational
assistance allowance or special training allowance are subject to
forfeiture under the provisions of 3.900, 3.901 (except paragraph
(c)), 3.902 (except paragraph (c)), 3.903, 3.904, 3.905 and 19.2 of this
chapter.
(Authority: 38 U.S.C. 6103, 6104 and 6105)
(54 FR 4286, Jan. 30, 1989)
38 CFR 21.4008 Prevention of overpayments.
When approval of a course may be withdrawn, and overpayments may
exist or be created, the Department of Veterans Affairs may suspend
further payments to veterans or eligible persons enrolled in the school
until the question of withdrawing approval is resolved. See 21.4134.
(Authority: 38 U.S.C. 3690(b))
(48 FR 37976, Aug. 22, 1983)
38 CFR 21.4009 Overpayments -- waiver or recovery.
(a) General. (1) The amount of the overpayment of educational
assistance allowance or special training allowance paid to a veteran or
eligible person constitutes a liability of that veteran or eligible
person.
(2) The amount of the overpayment of educational assistance allowance
or special training allowance paid to a veteran or eligible person
constitutes a liability of the education institution if the Department
of Veterans Affairs determines that the overpayment was made as the
result of willful or negligent:
(i) Failure of the educational institution to report, as required by
21.4203 and 21.4204, excessive absences from a course or discontinuance
or interruption of a course by a veteran or eligible person, or
(ii) False certification by the educational institution.
(3) If it appears that the falsity or misrepresentation was
deliberate, the Department of Veterans Affairs may not pursue
administrative collection pending a determination whether the matter
should be referred to the Department of Justice for possible civil or
criminal action. However, the Department of Veterans Affairs may
recover the amount of the overpayment from the educational institution
by administrative collection procedure when the Department of Veterans
Affairs determines the false certification or misrepresentation resulted
from an administrative error or a misstatement of fact and that no
criminal or civil action is warranted.
(4) If the Department of Veterans Affairs recovers any part of the
overpayment from the educational institution, it may reimburse the
educational institution, if the Department of Veterans Affairs
subsequently collects the overpayment from a veteran or eligible person.
The reimbursement --
(i) Will be made when the total amount collected from the educational
institution and from the veterans and eligible persons (less any amount
applied toward marshal fees, court costs, administrative cost of
collection and interest) exceeds the total amount for which the
educational institution is liable, and
(ii) Will be equal to the excess.
(5) This paragraph does not preclude the imposition of any civil or
criminal liability under this or any other law.
(b) Reporting. (1) If a school is required to make periodic or other
certifications, the Department of Veterans Affairs may consider the
following in determining whether a school in potentially liable for an
overpayment:
(i) The school's failure to report, or to report timely facts which
resulted in an overpayment, or
(ii) The school's submission of an incorrect certification as to
fact.
(2) In either instance the Department of Veterans Affairs will
consider other pertinent factors such as:
(i) Allowing for occasional clerical error or occasional
administrative error:
(ii) The school's past reliability in reporting;
(iii) The adequacy of the school's reporting system; and
(iv) The extent of noncompliance with reporting requirements.
(Authority: 38 U.S.C. 3685)
(c) Committee on school liability. Each field station having
jurisdiction over schools with courses approved for training under
Chapter 106, Title 10 U.S.C., Chapters 30, 32, 34, 35 and/or 36, Title
38 U.S.C. shall establish a Committee on School Liability. The
committee or a panel designated by the committee chairperson and drawn
from the committee, is authorized to find whether a school is liable for
an overpayment.
(Authority: 10 U.S.C. 2136(b), 38 U.S.C. 3034(a), 3241, 3685)
(d) Initial determination. The Adjudication Officer of the
Department of Veterans Affairs facility of jurisdiction will determine
whether there is evidence that would warrant a finding that the school
is potentially liable for an overpayment. When the decision is in the
affirmative, the Finance Officer of the Department of Veterans Affairs
facility of jurisdiction will notify the school in writing of the
Department of Veterans Affairs's intent to apply the liability
provisions of paragraph (a) of this section. The notice will identify
the students overpaid and will set out in each student's case the
actions or omissions by the school which resulted in the finding that
the school was potentially liable for the overpayment. The notice will
also state that a determination of liability will be made on the basis
of the evidence of record, unless additional evidence or a request for a
hearing is received within 30 days of the date of receipt of such notice
by the school.
(e) Hearings. A school is entitled to a hearing before a panel drawn
from the Committee on School Liability before a decision is made as to
whether it is liable for an overpayment. Every hearing will be preceded
by a prehearing conference unless the conference is waived by the
school. The Committee on School Liability will consider all evidence
and testimony presented at the hearing.
(f) Extent of liability. Waiver of collection of an overpayment as
to a veteran or eligible person will not relieve the school of liability
for the overpayment. Recovery in whole or in part from the veteran or
eligible person will limit such liability accordingly. If an
overpayment has been recovered from the school and the veteran or
eligible person subsequently repays the amount in whole or in part, the
amount repaid will be reimbursed to the school.
(g) Notice to school. The school shall be notified in writing of the
decision of the Committee on School Liability. If the school is found
liable for an overpayment, the school also will be notified of the right
to appeal the decision to the Central Office School Liability Appeals
Board within 60 days from the date of the letter to the school
containing notice of the decision. The 60-day time limit may be
extended to 90 days at the discretion of the chairperson of the
Committee on School Liability. The appeal must be in writing setting
forth fully the alleged errors of fact and law. If an appeal is not
received within the 60-day time limit, the Committee decision is final.
(h) Appeals. An appeal will be forwarded to Central Office where it
will be considered by the School Liability Appeals Board. The Board's
decision will serve as authority for instituting collection proceedings,
if appropriate, or for discontinuing collection proceedings instituted
on the basis of the original decision of the Committee on School
Liability in any case where the Board reverses a decision made by the
Committee that the school is liable.
(i) Review. Review by the School Liability Appeals Board is limited
to the issues raised by the school and shall be on the record and not de
novo in character. The Board may affirm, modify or reverse a decision
of the Committee on School Liability or may remand an appeal for further
consideration by the appropriate Committee on School Liability. If new
and material evidence is discovered while the School Liability Appeals
Board is considering a case, the Board may remand the case to the
appropriate Committee on School Liability.
(j) Finality of decisions. The School Liability Appeals Board has
authority to act for the Secretary in deciding appeals concerning a
school's liability for an overpayment. There is no right of additional
administrative appeal of a decision of the School Liability Appeals
Board.
(32 FR 4533, Mar. 25, 1967, as amended at 44 FR 15492, Mar. 14, 1979;
48 FR 37976, Aug. 22, 1983; 49 FR 35630, Sept. 11, 1984; 51 FR 16316,
May 2, 1986)
38 CFR 21.4009 General
38 CFR 21.4020 Two or more programs.
(a) Limit on training under two or more programs. The aggregate
period for which any person may receive assistance under two or more of
the following laws may not exceed 48 months (or the part-time
equivalent):
(1) Part VII or VIII, Veterans Regulations numbered 1(a), as amended:
(2) Title II of the Veterans' Readjustment Assistance Act of 1952;
(3) The War Orphans' Educational Assistance Act of 1956;
(4) 38 U.S.C. Chapters 30, 32, 34, 35 and 36 and the former Chapter
33;
(5) 10 U.S.C. Chapters 106 and 107;
(6) Section 903 of the Department of Defense Authorization Act, 1981,
(7) The Hostage Relief Act of 1980, and
(8) The Omnibus Diplomatic Security and Antiterrorism Act of 1986.
(Authority: 38 U.S.C. 3695(a))
(b) Limit on combining assistance received under Chapter 31 with
assistance under another program. No person may receive assistance
under Chapter 31, Title 38 U.S.C. in combination with any provisions of
law listed in paragraph (a) of this section in excess of 48 months (or
the part-time equivalent) unless the Department of Veterans Affairs
determines that additional months of benefits under Chapter 31 are
necessary to accomplish the purpose of the veteran's rehabilitation
program.
(Authority: 38 U.S.C. 3695(b))
(48 FR 37976, Aug. 22, 1983, as amended at 51 FR 16316, May 2, 1986;
57 FR 29800, July 7, 1992)
38 CFR 21.4022 Nonduplication-programs administered by VA.
(a) Election. A veteran or eligible person who is eligible for
education or training benefits under more than one of the provisions of
law listed in this paragraph based on his or her own service or based on
the service of another person cannot receive such benefits concurrently.
The individual must elect which benefit he or she will receive for the
particular period or periods during which education or training is to be
pursued. Except for an election between 38 U.S.C. chapters 32 and 34
which is irrevocable once a check has been negotiated, the person may
reelect at any time.
(1) 38 U.S.C. chapter 30,
(2) 38 U.S.C. chapter 31,
(3) 38 U.S.C. chapter 32,
(4) 38 U.S.C. chapter 34,
(5) 38 U.S.C. chapter 35,
(6) 10 U.S.C. chapter 106,
(7) Section 903 of the Department of Defense Authorization Act, 1981
(8) The Hostage Relief Act of 1980, or
(9) The Omnibus Diplomatic Security and Antiterrorism Act of 1986.
(Authority: 38 U.S.C. 3681)
(b) Prior training. If a veteran, who is also an eligible person,
has received educational assistance under Chapter 34 or 35, the program
previously pursued will be utilized to the fullest extent practicable in
determining the character and duration for which enrollment may be
approved under the other chapter.
(Authority: 38 U.S.C. 3471, 3521)
(34 FR 843, Jan. 18, 1969, as amended at 48 FR 37976, Aug. 22, 1983;
50 FR 27826, July 8, 1985; 51 FR 16316, May 2, 1986; 54 FR 33887, Aug.
17, 1989; 57 FR 29800, July 7, 1992)
38 CFR 21.4025 Nonduplication; Federal programs.
(a) Chapter 35. Payment of educational assistance allowance and
special training allowance are prohibited to an otherwise eligible
person:
(1) For a program of education pursued while on active duty; or
(2) For a unit course or courses which are paid for entirely or
partly by the United States under the Government Employees' Training Act
during any period that full salary is being paid him or her as an
employee of the United States; or
(3) During any period when the Department of Veterans Affairs is
making payments under 21.4632 on the eligible person's behalf to the
eligible person's employer.
(Authority: Sec. 13, Pub. L. 98-77, 97 Stat. 443)
(b) Chapter 34. Payment of educational assistance allowance is
prohibited to an otherwise eligible veteran:
(1) For a unit course or courses which are being paid for in whole or
in part by the Armed Forces during any period he or she is on active
duty; or
(2) For a unit course or courses which are being paid for in whole or
in part by the Department of Health and Human Services during any period
that he or she is on active duty with the Public Health Service; or
(Authority: 38 U.S.C. 3681)
(3) For a unit course or courses which are being paid for entirely or
partly by the United States under the Government Employees' Training Act
during any period that full salary is being paid him or her as an
employee of the United States; or
(4) During any period when the Department of Veterans Affairs is
making payments under 21.4632 on the veteran's behalf to the veteran's
employer.
(Authority: Sec. 13, Pub. L. 98-77, 97 Stat. 443)
Cross References: See 21.1025, 21.3024, 21.3025 and 21.4632.
(36 FR 9021, May 18, 1971, as amended at 48 FR 37976, Aug. 22, 1983;
49 FR 29060, July 18, 1984)
38 CFR 21.4025 Counseling
38 CFR 21.4100 Counseling.
(a) Purpose of counseling. The purpose of counseling is to assist:
(1) In selecting an educational or training objective,
(2) In developing a suitable program of education or training,
(3) In selecting an educational institution or training establishment
appropriate for the attainment of the educational or training objective,
(4) In resolving any personal problems which are likely to interfere
with successful pursuit of a program,
(5) In selecting an employment objective for the veteran that would
be likely to provide the veteran with satisfactory employment
opportunities in light of his or her personal circumstances.
(b) Availability of counseling. Counseling assistance is available
for --
(1) Identifying and removing reasons for academic difficulties which
may result in interruption or discontinuance of training, or
(2) In considering changes in career plans, and making sound
decisions about the changes.
(Authority: 38 U.S.C. 3520)
(c) Provision of counseling. VA shall provide counseling as needed
for the purposes identified in paragraphs (a) and (b) of this section
upon the request of the veteran or eligible person. VA shall provide
counseling as needed for the purposes identified in 21.4101 of this
part following either the veteran's initial application for benefits or
any communication from the veteran or guardian indicating that the
veteran wishes to change his or her program. VA shall take appropriate
steps (including notification where feasible) to acquaint all eligible
veterans with the availability and advantages of counseling services.
(Authority: 38 U.S.C. 1663 (Repealed; Pub. L. 102-16); Pub. L.
99-576)
(44 FR 62496, Oct. 31, 1979, as amended at 45 FR 67092, Oct. 9, 1980;
54 FR 33887, Aug. 17, 1989)
38 CFR 21.4101 Counseling-38 U.S.C. Chapter 34.
(a) Required counseling. (1) In any case in which VA has rated the
veteran as being incompetent, the veteran must be counseled before
selecting a program of education or training. The requirement that
counseling be provided is met when --
(i) The veteran has had one or more personal interviews with the
counselor;
(ii) The counselor has jointly developed with the veteran
recommendations for selecting a program;
(iii) These recommendations have been reviewed with the veteran.
(2) The veteran may follow the recommendations developed in the
course of counseling, but is not required to do so.
(b) Other counseling. Counseling is not required for veterans and
servicepersons receiving benefits under 38 U.S.C. chapter 34 for any
purpose other than that described in paragraph (a) of this section.
(Authority: 38 U.S.C. 1663 (Repealed; Pub. L. 102-16); Pub. L.
99-576)
(54 FR 33887, Aug. 17, 1989)
38 CFR 21.4102 Requirement -- 38 U.S.C. Chapter 35.
(a) Child. (1) Counseling is required for an eligible child if:
(i) The eligible child may require specialized vocational or special
restorative training, or
(ii) The eligible child has reached the compulsory school attendance
age under State law, but has neither reached his or her 18th birthday
nor completed secondary schooling (See 21.3040(a)).
(2) In all other cases the counseling psychologist will assist in
preparing an educational plan only of the eligible child, or his or her
parent or guardian requests assistance.
(Authority: 38 U.S.C. 3520, 3536, 3541, 3561)
(b) Spouse or surviving spouse. Counseling is required for a spouse
or surviving spouse only if he or she desires special training.
(Authority: 38 U.S.C. 3533)
(45 FR 67092, Oct. 9, 1980, as amended at 48 FR 37977, Aug. 22, 1983)
38 CFR 21.4103 Failure to cooperate.
VA will take no further action on the application of a veteran or
eligible person for assistance under 38 U.S.C. chapter 34 or chapter 35
when he or she --
(a) Fails to report;
(b) Fails to cooperate in the counseling process; or
(c) Does not complete counseling to the extent required under
21.4101(a) of this part.
(Authority: 38 U.S.C. 1663 (Repealed; Pub. L. 102-16); Pub. L.
99-576)
(54 FR 33887, Aug. 17, 1989)
38 CFR 21.4104 Travel expenses.
(a) General. VA shall determine and pay the necessary expense of
travel to and from the place of counseling for a veteran or eligible
person who is required to receive counseling if --
(1) VA determines that the veteran or eligible person is unable to
defray the cost based upon his or her annual declaration and
certification; or
(2) The individual has a service-connected disability.
(Authority: 38 U.S.C. 111)
(b) Restriction. The Department of Veterans Affairs will not pay the
necessary cost of travel to and from the place of counseling when
counseling is not required but is provided as a result of a voluntary
request by the veteran or eligible person.
(c) Travel for attendants. When an eligible person because of a
severe disability requires the services of an attendant while traveling,
payment of travel expenses will be on the same basis as for the eligible
person.
(Authority: 38 U.S.C. 111)
(45 FR 67093, Oct. 9, 1980, as amended at 54 FR 33887, Aug. 17, 1989)
38 CFR 21.4105 Special training -- 38 U.S.C. Chapter 35.
(a) Initial counseling. A counseling psychologist in the Vocational
Rehabilitation and Counseling Division will counsel a handicapped person
before referring the case to the Vocational Rehabilitation Panel
(established under 21.60) for consideration as to the person's need for
a course of specialized vocational training or special restorative
training. After counsulting with the panel, and considering the panel's
report, the counseling psychologist will determine if the handicapped
person needs a course of specialized vocational training or special
restorative training.
(Authority: 38 U.S.C. 3536, 3540-3543)
(b) Counseling after special restorative training. When an eligible
child completes or discontinues a course of special restorative training
without having selected an objective and a program of education, a
counseling psychologist in the Vocational Rehabilitation and Counseling
Division will provide additional counseling to assist the child in
selecting a program of education.
(Authority: 38 U.S.C. 3561)
(48 FR 37977, Aug. 22, 1983, as amended at 49 FR 42726, Oct. 24,
1984)
38 CFR 21.4105 Payments; Educational Assistance Allowance
38 CFR 21.4130 Educational assistance allowance.
(a) Payments of educational assistance allowance. The Department of
Veterans Affairs will pay educational assistance allowance at the rate
specified in 21.4136 or 21.4137 while the veteran or eligible person
is pursuing a program of education or training.
(Authority: 38 U.S.C. 3482, 3491, 3532, 3680(a))
(b) Excessive absences cause reduced payments. Except for
apprenticeship and other on-the-job training programs, the Department of
Veterans Affairs will make no payment for excessive absences (as
determined under 21.4205(b) from a course not leading to a standard
college degree. (See 21.4136(i) and 21.4137(f) for proportionate
reduction where less than 120 hours are completed during a month in
apprenticeship and other on-job training programs.)
(Authority: 38 U.S.C. 3680(a))
(c) No payment for excessive training. (1) The Department of
Veterans Affairs will make no payment for:
(i) Training in an apprenticeship or other on-job training program in
excess of the number of hours approved by the State approving agency or
Department of Veterans Affairs; or
(ii) Lessons completed in a correspondence course in excess of the
number approved by the State approving agency.
(2) A school's standards of progress may permit a student to repeat a
course or portion of a course in which he or she has done poorly. The
Department of Veterans Affairs considers the repeated courses to be part
of the program of education. The Department of Veterans Affairs will
make no payment for:
(i) Flight training beyond the approved length of the course or
beyond repeated portions of the approved course permitted by the flight
school's approved standards of progress; or
(ii) Training in any course if the training is not part of the
veteran's or eligible person's program of education.
(Authority: 38 U.S.C. 3452)
(d) Commencing date. The commencing date will be the date of
entrance or reentrance into a course as determined under 21.4131.
(Authority: 38 U.S.C. 3481(a), 3680(a))
(e) Ending date. The ending date will be the earliest of the
following dates:
(1) The ending date of the course or period of enrollment as
certified by the school.
(2) The ending date of:
(i) The veteran's eligibility as determined by 21.1041, 21.1042,
and 21.1043, or
(ii) The ending date of the eligible person's eligibility as
determined under 21.3041, 21.3042, and 21.3046.
(3) The ending date specified in 21.4135.
(Authority: 38 U.S.C. 3462(a), 3481(a), 3680(a))
(f) Final payment. The Department of Veterans Affairs may withhold
final payment until the Department of Veterans Affairs receives proof of
continued enrollment and adjusts the veteran's or eligible person's
account.
(Authority: 38 U.S.C. 3680)
(48 FR 37977, Aug. 22, 1983)
38 CFR 21.4131 Commencing dates.
The commencing date of an award or increased award of educational
assistance allowance will be determined under this section.
(a) Entrance or reentrance including change of program or school (
21.4234). Latest of following dates:
(1) Date certified by school or establishment under paragraph (b) or
(c) of this section.
(2) Date 1 year prior to date of receipt of the application or
enrollment certification, whichever is later. (See 21.1032 and
21.3032.)
(3) The later of the following:
(i) The effective date of the approval of the course, or
(ii) One year before the date VA receives the approval notice.
(Authority: 38 U.S.C. 3672(a))
(4) Date of reopened application under paragraph (d) of this section.
(b) Certification by school -- the course or subject leads to a
standard college degree. (1) When the student enrolls in a course
offered by independent study, the commencing date of the award or
increased award of educational assistance will be the date the student
began pursuit of the course according to the regularly established
practices of the educational institution.
(2) Except as provided in paragraphs (b)(3), (b)(4) and (b)(5) of
this section when a student enrolls in a resident course or subject, the
commencing date of the award or increased award of educational
assistance will be the first scheduled date of classes for the term,
quarter or semester in which the student is enrolled.
(3) When the student enrolls in a resident course or subject whose
first scheduled class begins after the calendar week when, according to
the school's academic calendar, classes are scheduled to commence for
the term, quarter, or semester, the commencing date of the award or
increased award of educational assistance allowance will be the actual
date of the first class scheduled for that particular course or subject.
(4) When a student enrolls in a resident course or subject, the
commencing date of the award will be the date the student reports to the
school provided that --
(i) The published standards of the school require the student to
register before reporting, and
(ii) The published standards of the school require the student to
report no more than 14 days before the first scheduled date of classes
for the term, quarter or semester for which the student has registered,
and no later than the first scheduled date of classes for the term,
quarter or semester for which the student has registered.
(5) When the student enrolls in a resident course or subject and the
first day of classes is more than 14 days after the date of
registration, the commencing date of the award or the increased award of
educational assistance will be the first day of classes.
(Authority: 38 U.S.C. 3481(a), 3680(a); Pub. L. 98-525)
(c) Certification by school or establishment -- course does not lead
to a standard college degree. (1) Residence school: See paragraph (b)
of this section.
(2) Correspondence school: Date first lesson sent or date of
affirmance whichever is later.
(3) Job training: First date of employment in training position.
(Authority: 38 U.S.C. 3481, 3687)
(d) Reopened application after abandonment ( 21.1032 and 21.3032).
The date of receipt of application or enrollment certification,
whichever is later, if pursuing an approved course.
(e) Increase for dependent; Chapter 34. (1) The veteran may acquire
one or more dependents before he or she enters or reenters a program of
education. When this occurs, the following rules apply:
(i) The effective date of the increase will be the date of entrance
or reentrance if:
(A) The Department of Veterans Affairs receives the claim for the
increase within 1 year of the date of entrance or reentrance, and
(B) VA receives any necessary evidence within 1 year of the date VA
requested the evidence and informed the veteran of the time limit for
submitting it.
(ii) The effective date of the increase will be the date the
Department of Veterans Affairs receives notice of the dependent's
existence if:
(A) The Department of Veterans Affairs receives the claim for the
increase more than 1 year after the date of entrance or reentrance, and
(B) VA receives any necessary evidence within 1 year of the date VA
requested the evidence and informed the veteran of the time limit for
submitting it.
(iii) The effective date will be the date the VA receives all
necessary evidence, if that evidence is received more than 1 year from
the date VA requested it, and informed the veteran of the time limit for
submitting it.
(2) If the veteran acquires a dependent after he or she enters or
reenters a program of education, the increase will be effective on the
latest of the following dates:
(i) Date of claim. This term means the following listed in order of
their applicability:
(A) Date of the veteran's marriage, or birth of his or her child, or
his or her adoption of a child, if the evidence of the event is received
within 1 year of the event.
(B) Date notice is received of the dependent's existence if evidence
is received within 1 year of the date VA requested the evidence and
informed the veteran of the time limit for submitting the evidence.
(C) Date VA receives evidence if this date is more than 1 year after
the date VA requested the evidence and informed the veteran of the time
limit for submitting it.
(Authority: 38 U.S.C. 5110(n))
(ii) Date dependency arises.
(iii) Date the law permits benefits for dependents generally.
(Authority: 38 U.S.C. 5110(f)(n))
Cross Reference: See 3.667 of this chapter as to effective dates
with regard to children 18 years of age and older who are attending
school.
(f) Liberalizing laws and Department of Veterans Affairs issues. In
accordance with facts found, but not earlier than the effective date of
the act or administrative issue.
(g) Correction of military records ( 21.1042(b), 21.3042(b)).
Eligibility of a veteran may arise as the result of correction or
modification of military records under 10 U.S.C. 1552, or a change,
correction or modification of a discharge or dismissal under 10 U.S.C.
1553, or other competent military authority. In these cases the
commencing date of educational assistance allowance will be in
accordance with the facts found, but not earlier than the date the
change, correction or modification was made by the service department.
(Authority: 38 U.S.C. 3462(b))
(h) Individuals in a penal institution. If a veteran or eligible
person is paid a reduced rate of educational assistance or no
educational assistance under 21.4136 (n), (o), (p), or (r) 21.4137 (j)
or (l), the rate will be increased or benefits will commence effective
the earlier of the following dates:
(1) The date the tuition and fees are no longer being paid under
another Federal program, or a State or local program, or
(2) The date of the release from the prison or jail.
(Authority: 38 U.S.C. 3482(g), 3532(e))
(i) (Reserved)
(j) Veterans' Job Training Act ( 21.4630). The day following the last
day for which the veteran's employer received payments on the veteran's
behalf under the Veteran's Job Training Act.
(Authority: Pub. L. 98-77, sec. 13; Pub. L. 99-238, sec. 201(a))
(31 FR 6774, May 6, 1966, as amended at 39 FR 43220, Dec. 11, 1974;
41 FR 47929, Nov. 1, 1976; 46 FR 62060, Dec. 22, 1981; 48 FR 37977 and
37978, Aug. 22, 1983; 49 FR 5113, Feb. 10, 1984; 50 FR 48581, Nov. 26,
1985; 51 FR 16318, May 2, 1986; 54 FR 28677, July 7, 1989; 57 FR
40614, Sept. 4, 1992)
38 CFR 21.4132 Procedural protections: reduction following loss of a
dependent.
(a) Notice of reduction required when a veteran loses a dependent.
(1) Except as provided in paragraph (a)(2) of this section, the
Department of Veterans Affairs will not reduce an award of educational
assistance allowance following the veteran's loss of a dependent unless:
(i) The Department of Veterans Affairs has notified the veteran of
the adverse action, and
(ii) The Department of Veterans Affairs has provided the veteran with
a period of 60 days in which to submit evidence for the purpose of
showing that the educational assistance allowance should not be reduced.
(2) When the reduction is based solely on written, factual,
unambiguous information as to dependency or marital status provided by
the veteran or his or her fiduciary with knowledge or notice that the
information would be used to determine the monthly rate of educational
assistance allowance:
(i) The Department of Veterans Affairs is not required to send a
prereduction notice as stated in paragraph (a)(1) of this section, but
(ii) The Department of Veterans Affairs will send notice
contemporaneous with the reduction in educational assistance allowance.
(Authority: 38 U.S.C. 5112, 5113)
(b) Prereduction notice. Where a reduction in educational assistance
allowance is warranted by reason of information concerning dependency
received from a source other than the veteran, the Department of
Veterans Affairs will:
(1) Prepare a proposal for the reduction of educational assistance
allowance, setting forth material facts and reasons;
(2) Notify the veteran of his or her latest address of record of the
contemplated action;
(3) Furnish detailed reasons for the proposed reduction;
(4) Inform the veteran that he or she has an opportunity for a
predetermination hearing, provided that the Department of Veterans
Affairs receives a request for such a hearing within 30 days from the
date of the notice; and
(5) Give the veteran 60 days for the presentation of additional
evidence to show that the educational assistance allowance should be
continued at its present level.
(Authority: 38 U.S.C. 5112, 5113)
(c) Predetermination hearing. (1) If the Department of Veterans
Affairs receives a timely request for a predetermination hearing:
(i) The Department of Veterans Affairs will notify the veteran in
writing of the date, time and place for the hearing; and
(ii) Payments of educational assistance allowance will continue at
the previously established level pending a final determination
concerning the proposed reduction.
(2) The hearing will be conducted by a Department of Veterans Affairs
employee:
(i) Who did not participate in the preparation of the proposal to
reduce the veteran's educational assistance allowance, and
(ii) Who will bear the decision-making responsibility.
(Authority: 38 U.S.C. 5112, 5113)
(d) Final action. The Department of Veterans Affairs will take final
action following the predetermination procedures specified in paragraph
(c) of this section.
(1) If a predetermination hearing was not requested or if the veteran
failed to report for a scheduled predetermination hearing, the final
action will be based solely upon the evidence of record.
(2) If a predetermination hearing was conducted, the Department of
Veterans Affairs will base final action upon:
(i) Evidence adduced at the hearing,
(ii) Evidence contained in the claims file at the time of the
hearing, and
(iii) Any additional evidence obtained following the hearing pursuant
to necessary development.
(3) Whether or not a predetermination hearing was conducted, a
written notice of the final action shall be issued to the veteran
setting forth the reasons for the decision, and the evidence upon which
it is based.
(4) When a reduction of educational assistance allowance is found to
be warranted following consideration of any additional evidence
submitted, the effective date of the reduction or discontinuance shall
be as specified under the provisions of 21.4135 of this part. (For
information concerning the conduct of the hearing see 3.103 (c) and (d)
of this chapter.)
(Authority: 38 U.S.C. 5112, 5113)
(54 FR 31830, Aug. 2, 1989
38 CFR 21.4133 Notification of suspension or discontinuance.
(a) Presuspension notice. Not less than 30 days before the Director
of a Department of Veterans Affairs facility acts to make a mass
suspension of payments of educational assistance allowance under
21.4134(c) he or she shall send written notice to each affected veteran
or eligible person. The notice:
(1) Shall state the Director's intent to suspend payments unless the
educational institution takes corrective action;
(2) Shall give the Director's reasons for suspending payments; and
(3) Shall state the date on which the Director intends to suspend
payments.
(b) Notice of suspension and discontinuance. When the Department of
Veterans Affairs suspends or discontinues payment to any veteran or
person under 21.4134(b) or 21.4135, the Department of Veterans Affairs
shall send written notice of the suspension or discontinuance to the
veteran or eligible person. The notice:
(1) Shall state the reasons for the suspension or discontinuance of
payments, and
(2) Shall notify the veteran or eligible person that he or she has a
right:
(i) To a hearing, and
(ii) To present evidence why payments should not be discontinued or
suspended.
(Authority: 38 U.S.C. 3690(b))
(49 FR 5113, Feb. 10, 1984)
38 CFR 21.4134 Suspension and discontinuance.
(a) Suspension and discontinuance despite course approval. Even
though a State approving agency has approved a course offered by a
school, the Director of the Department of Veterans Affairs facility of
jurisdiction:
(1) May suspend payment of educational assistance allowance to any or
all veterans and eligible persons enrolled in the course, and
(2) After following the procedures in 21.4207 may discontinue
payment of educational assistance to any or all veterans and eligible
persons enrolled in the course.
(Authority: 38 U.S.C. 3690)
(b) Evidence requirements for individual suspensions. The Director
of the Department of Veterans Affairs facility of jurisdiction may
suspend or discontinue payments of educational assistance allowance to a
veteran or eligible person, even if the Director continues payment to
other veterans or eligible persons enrolled in the course. Before the
Director can do this, he or she must have evidence showing either that:
(1) The program of education or any course in which the veteran or
eligible person is enrolled fails to meet any of the requirements of
chapter 106 of title 10 U.S.C. or chapter 30, 32, 34, 35 or 36 of title
38 U.S.C., or
(2) The educational institution offering the veteran's or eligible
person's course has violated or failed to meet any of the requirements
of chapter 106 of title 10 U.S.C. or chapter 30, 32, 34, 35 or 36 of
title 38 U.S.C., and
(3) The violation or failure results in erroneous payment of
educational assistance to the veteran or eligible person.
(Authority: 38 U.S.C. 3690(b))
(c) Evidence requirements for mass suspension of payments. Before
suspending payments to all veterans and eligible persons enrolled in a
course the Director must have evidence to support the suspension. The
evidence must show that a substantial pattern of veterans and eligible
persons enrolled in the course are not entitled to the educational
assistance they are receiving because:
(1) One or more of the course approval requirements of chapter 36,
title 38 U.S.C. are not met, or
(2) The educational institution offering the course has violated one
or more of the recordkeeping or reporting requirements of Chapter 106 of
Title 10 U.S.C. or Chapter 30, 32, 34, 35 or 36 of Title 38 U.S.C.
(Authority: 10 U.S.C. 2136, 38 U.S.C. 3034, 3690(b))
(d) Notification. (1) The Director may suspend educational
assistance allowance as provided in this section only after:
(i) He or she notifies the State approving agency concerned and the
educational institution in writing of any failure to meet the approval
requirements and any violation of recordkeeping or reporting
requirements.
(ii) The educational institution:
(A) Refuses to take corrective action, or
(B) Does not take corrective action within 60 days (or 90 days if
permitted by the Director); and
(iii) The Director notifies each veteran and eligible person as
provided in 21.4133.
(2) If an educational institution believes it cannot complete
corrective action within 60 days, it may ask the Director for additional
time (not to exceed 30 days) to take corrective action.
(e) Action following suspension. If following a suspension of
payments the Director is convinced that the educational institution will
not take corrective action and that the State approving agency will not
disapprove the course, he or she will refer the facts to the facility
Committee on Educational Allowances. See 21.4207 and 21.4208.
(Authority: 38 U.S.C. 3690(b))
Cross Reference: Overcharges -- restrictions on enrollments. See
21.4202.
(49 FR 5113, Feb. 10, 1984, as amended at 51 FR 16316, May 2, 1986)
38 CFR 21.4135 Discontinuance dates.
The effective date of reduction or discontinuance of educational
assistance allowance will be as specified in this section. If more than
one type of reduction or discontinuance is involved, the earliest date
will control.
(a) Death of veteran or eligible person. Last date of attendance.
(b) Death of dependent. (1) Before October 1, 1982: last day of the
year in which death occurs unless discontinuance is required at an
earlier date under other provisions.
(2) After September 30, 1982: last day of the month in which death
occurs unless discontinuance is required at an earlier date under other
provisions.
(c) Divorce. (1) Veteran, Chapter 34:
(i) Before October 1, 1982: last day of the year in which divorce
occurs unless discontinuance is required at an earlier date under other
provisions.
(ii) After September 30, 1982: last day of the month in which
divorce occurs unless discontinuance is required at an earlier date
under other provisions.
(2) Spouse, Chapter 35: Date the decree became final, subject to
extension under paragraph (o) if divorce was without fault on part of
the spouse.
(d) Dependent child, Chapter 34 -- (1) Marriage (i) Before October 1,
1982: last day of the year in which marriage occurred unless
discontinuance is required at an earlier date under other provisions.
(ii) After September 30, 1982: last day of the month in which
marriage occurred unless discontinuance is required at an earlier date
under other provisions.
(Authority: 38 U.S.C. 5112(b), 5113)
(2) Age 18. Day preceding 18th birthday.
(3) School attendance. Last day of month in which school attendance
ceased or day preceding 23d birthday, whichever is earlier.
(4) Helplessness ceased. Last day of month following 60 days after
notice to the payee that helplessness has ceased.
(e) Course discontinued; course interrupted; course terminated;
course not satisfactorily completed or withdrawn from 21.4136(k) and
21.4137. (1) If the individual withdraws from all courses; receives all
nonpunitive grades; there are no mitigating circumstances as provided
in 21.4136(k) or 21.4137(h); and the withdrawal did not occur because
the individual was ordered to active duty, VA will terminate the
individual's educational assistance allowance effective the later of the
following:
(i) The first date of the term in which the withdrawal occurs, or
(ii) December 1, 1976.
(2) If the individual withdraws from all other courses other than
courses in paragraph (e)(3) of this section and with mitigating
circumstances, as provided in 21.4136(k) or 21.4137(h), or withdraws
from all courses such that a punitive grade is or will be assigned for
those courses:
(i) Residence training: Last date of attendance.
(ii) Independent study: Official date of change in status under the
practices of the institution.
(3) If the individual withdraws from correspondence, flight, farm
cooperative, cooperative or job training, benefits will be terminated
effective:
(i) Correspondence training: Date last lesson is serviced.
(ii) Flight training: Date of last instruction.
(iii) Job training: Date of last training.
(iv) Farm cooperative training: Date of last class attendance.
(v) Cooperative training: Date of last training.
(Authority: 38 U.S.C. 3680(a))
(f) Discontinued by Department of Veterans Affairs ( 21.4134 and
21.4207). (1) Date on which payments first were suspended by the
Director of a Department of Veterans Affairs facility as provided in
21.4134, if discontinuance was preceded by such a suspension.
(2) End of the month in which the decision to discontinue, made by
the Department of Veterans Affairs pursuant to 21.4134 or 21.4207, is
effective, if the Director of a Department of Veterans Affairs facility
did not suspend payments prior to the discontinuance.
(Authority: 38 U.S.C. 3690)
(g) Unsatisfactory progress, conduct or attendance 21.4277. The date
the veteran's or eligible person's enrollment is discontinued by the
school or the date determined under 21.4277, whichever is earlier.
(Authority: 38 U.S.C. 3474, 3524)
(h) Required certifications not received after certification of
enrollment ( 21.4203 and 21.4204). (1) If required certification of
attendance of a veteran or eligible person enrolled in a course not
leading to a standard college degree is not timely received, payments
will be terminated date of last certification. If certification is
later received, adjustment will be made based on facts found.
(2) If verification of enrollment and certificate of delivery of the
check is not received within 60 days, in the case of an advance payment,
the actual facts will be determined and adjustment made, if required, on
the basis of facts found. If student failed to enroll, termination will
be effective the beginning date of the enrollment period.
(i) False or misleading statements. See 21.4006.
(j) Disapproval by State approving agency ( 21.4259(a)). (1) Date on
which payments first were suspended by the Director of a Department of
Veterans Affairs facility as provided in 21.4134, if disapproval was
preceded by such a suspension.
(2) End of the month in which disapproval is effective or notice of
disapproval is received in the Department of Veterans Affairs, whichever
is later, provided that the Director of a Department of Veterans Affairs
facility did not suspend payments prior to the disapproval.
(Authority: 38 U.S.C. 3672(a), 3690)
(k) Disapproval by Department of Veterans Affairs ( 21.4134,
21.4207, 21.4259(c)). (1) Date on which payments first were suspended by
the Director of a Department of Veterans Affairs facility as provided in
21.4134 if disapproval was preceded by such a suspension.
(2) End of the month in which disapproval occurred, provided that the
Director of a Department of Veterans Affairs facility did not suspend
payments prior to the disapproval.
(Authority: 38 U.S.C. 3671(b), 3672(a), 3690)
(l) Conflicting interests (not waived) ( 21.4005). Thirty days after
date of letter notifying veteran or eligible person, unless terminated
earlier for other reason.
(m) Incarceration in prison or penal institution for conviction of a
felony. (1) The provisions of this paragraph apply to a veteran or
eligible person whose educational assistance must be discontinued or who
becomes restricted to payment of educational assistance allowance at a
reduced rate under 21.4136 (n), (o), (p) or (r) or 21.4137(j) or (1).
(2) The reduced rate or discontinuance will be effective the latest
of the following dates.
(i) The first day on which all or part of the veteran's or eligible
person's tuition and fees were paid by a Federal, State or local
program,
(ii) The date the veteran or eligible person is incarcerated in
prison or penal institution, or
(iii) The commencing date of the award as determined by 21.4131.
(Authority: 38 U.S.C. 3482(g), 3532(e))
(n) Active duty ( 21.4136(c) and 21.3042). Day before entrance on
active duty. (Does not apply to brief periods of active duty for
training if school permits such absence without interruption of
training; however, where course does not lead to standard college
degree, the absence must be reported as required by 21.4205.)
(o) Veteran no longer rated permanent total disabled; or spouse
(trainee) divorced from veteran without fault on his or her part; or
serviceman or servicewoman removed from ''missing status'' listing --
Chapter 35 ( 21.3041 and 21.3046). (1) End of quarter or semester if
school is operated on quarter or semester system.
(2) End of the course or a 12-week period, whichever is earlier, if
the school does not operate on a quarter or semester system.
(Authority: 38 U.S.C. 3511(b))
(p) Error; payee's or administrative. (1) Effective date of award
or day preceding act, whichever is later, but not prior to the date
entitlement ceased, on an erroneous award based on an act of commission
or omission by a payee or with his or her knowledge.
(2) Date of last payment on an erroneous award based solely on
administrative error by VA or error in judgment by VA.
(Authority: 38 U.S.C. 5112(b)(10) and 5113)
(q) Fraud; forfeiture resulting ( 21.4007). Beginning date of award
or day preceding date of fraudulent act whichever is later.
(r) Treasonable acts or subversive activities; forfeiture (
21.4007). Beginning date of award or date preceding date of commission
of treasonable act or subversive activities for which convicted,
whichever is later.
(s) Reduction in rate of pursuit of course ( 21.4270).
(1) VA will reduce an individual's educational assistance allowance
effective the first date of the term in which the individual reduces
training by withdrawing from part of a course, if the reduction occurs
at the beginning of the term.
(2) VA will reduce an individual's educational assistance allowance
effective the earlier of the end of the month or end of the term in
which an individual reduces training by withdrawing from part of a
course when:
(i) The reduction does not occur at the beginning of the term; and
(ii) There are mitigating circumstances, or the individual receives a
punitive grade for the portion of the course from which he or she
withdrew, or the withdrawal occurred because the individual was ordered
to active duty.
(3) If the individual reduces training by withdrawing from a part of
a course and the withdrawal does not occur because the individual was
ordered to active duty; there are not mitigating circumstances; and
the individual receives a nonpunitive grade for that portion of the
course from which he or she withdrew, VA will reduce the individual's
educational assistance allowance effective the later of the following:
(i) The first date of enrollment of the term in which the reduction
occurs; or
(ii) December 1, 1976. See paragraphs (e) and (w) of this section
also.
(4) An individual, who enrolls in several subjects and reduces his or
her rate of pursuit by completing one or more of them while continuing
training in others, may receive an interval payment based on the
subjects completed, if the requirements of 21.4138(f) are met. If
those requirements are not met, VA will reduce the individual's
educational assistance allowance effective the date the subject or
subjects were completed.
(Authority: 38 U.S.C. 3680; Pub. L. 96-466)
(t) Change in law or Department of Veterans Affairs issue, or
interpretation. See 3.114(b) of this chapter.
(u) Except as otherwise provided. On basis of facts found.
(v) Remarriage of spouse or surviving spouse. (1) Remarriage: Last
date of attendance before remarriage.
(2) Conduct of spouse or surviving spouse: Last day of month before
inception of relationship.
(w) Nonpunitive grade assigned without a withdrawal from courses.
(1) If an individual receives a nonpunitive grade for a particular
course for any reason other than a withdrawal from it, VA will reduce
the individual's educational assistance allowance effective the last
date of attendance when mitigating circumstances are found.
(2) If an individual receives a nonpunitive grade in a particular
course for any reason other than a withdrawal from it, and there are no
mitigating circumstances, VA will reduce his or her educational
assistance effective the later of the following:
(i) The first date of enrollment for the term in which the grade
applies, or
(ii) December 1, 1976. See paragraphs (e) and (s) of this section.
(Authority: 38 U.S.C. 3680(a)(4))
(x) (Reserved)
(y) Veterans' Job Training Act ( 21.4632). The first day for which
the veteran's employer received payments on the veteran's behalf under
the Veterans' Job Training Act.
(Authority: Pub. L. 98-77, sec. 13)
(z) Eligible child ceases to be a stepchild. When an eligible child
loses eligibility because he or she ceases to be the stepchild of the
veteran, VA will discontinue the dependent's educational assistance
allowance on the last day of the child's eligibiltiy as determiend by
21.3041(d)(9).
(Authority: 38 U.S.C. 3501).
Cross Reference: Special restorative training. See 21.3332.
(31 FR 6774, May 6, 1966)
Editorial Note: For Federal Register citations affecting 21.4135,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
Effective Date Note: At 57 FR 24367, June 9, 1992, 21.4135,
paragraph (s) and its authority citation were revised, effective August
1, 1993. At 58 FR 26239, May 3, 1993, 21.4135 was further amended by
delaying the effective date to August 1, 1999. For the convenience of
the user, the revised text appears as follows:
21.4135 Discontinuance dates.
(s) Reduction in rate of pursuit of course ( 21.4270). (1) VA will
reduce an individual's educational assistance allowance effective the
first date of the term in which the individual reduces training by
withdrawing from part of a course, if the reduction occurs at the
beginning of the term.
(2) VA will reduce an individual's educational assistance allowance
effective the earlier of the end of the month or end of the term in
which an individual reduces training by withdrawing from part of a
course when:
(i) The reduction does not occur at the beginning of the term;
(ii) The individual received a lump-sum payment for the quarter,
semester, term or other enrollment period during which he or she reduced
training; and
(iii) There are mitigating circumstances, or the individual receives
a punitive grade for the portion of the course from which he or she
withdrew.
(3) VA will reduce an individual's educational assistance allowance
effective the date on which an individual reduces training when:
(i) The reduction does not occur at the beginning of the term;
(ii) The individual did not receive a lump-sum payment for the
quarter, semester, term or other enrollment period during which he or
she reduced training; and
(iii) There are mitigating circumstances, or the individual receives
a punitive grade for the portion of the course from which he or she
withdrew.
(4) If the individual reduces training by withdrawing from a part of
a course and the withdrawal does not occur because the individual was
ordered to active duty; there are no mitigating circumstances; and the
individual receives a nonpunitive grade from that portion of the course
from which he or she withdrew; VA will reduce the individual's
educational assistance effective the later of the following:
(i) The first date of enrollment of the term in which the reduction
occurs; or
(ii) December 1, 1976. See paragraphs (e) and (w) of this section
also.
(5) An individual who enrolls in several subjects and reduces his or
her rate of pursuit by completing one or more of them while continuing
training in others, may receive an interval payment based on the
subjects completed, if the requirements of 21.4138(f) of this part are
met. If those requirements are not met, VA will reduce the individual's
educational assistance allowance effective the date the subject or
subjects were completed.
(Authority: 38 U.S.C. 5113, 3680)
38 CFR 21.4136 Rates; educational assistance allowance; 38 U.S.C.
Chapter 34.
(a) Rates. Educational assistance allowance is payable at the
following monthly rates effective October 1, 1984:
(Authority: 38 U.S.C. 3482, 3686, 3687)
(b) Less than half-time. The monthly rate for an individual who is
pursuing an institutional course on less than one-half time basis may
not exceed the monthly rate of the cost of the course, computed on the
total cost for tuition and fees which the school requires similarly
circumstanced nonveterans enrolled in the same course to pay. ''Cost of
the course'' does not include the cost of supplies which the student is
required to purchase at his or her own expense.
(c) Active duty. The monthly rate for an individual who is pursuing
a program of education while on active duty may not exceed the lesser of
the following rates:
(1) The monthly rate of the cost of the course as specified in
paragraph (b) of this section, or
(2) The appropriate rate from this table:
(Authority: 38 U.S.C. 3482)
(d) June 1966. A veteran who commenced a course prior to June 1,
1966, will not be paid for any part of the month of June 1966, unless
his or her course continues through June 30, 1966.
(Authority: Sec. 12(a), Pub. L. 89-358, 80 Stat. 28)
(e) Excessive absences. Other than for apprenticeships and on-job
training, when enrollment is in a course which does not lead to a
standard college degree, absences which occur before December 18, 1989,
and which exceed the maximum number allowable will cause a reduction in
the education assistance allowance payable for the month in which such
absences occurred. The rate of reduction will be determined by the
following table:
(Authority: 38 U.S.C. 3680(a))
(f) Dependents. The term dependent means a spouse, child or
dependent parent who meets the definitions of relationship specified in
3.50, 3.51, 3.57 and 3.59 of this chapter. A child adopted outside the
veteran's family is included only if the veteran is contributing to the
child's support.
(g) Allowance for dependents -- (1) Concurrent benefits. Additional
educational assistance allowance may be paid to a veteran concurrently
with additional disability pension or compensation for the same
dependent.
(2) Two-veteran cases. The payment of additional educational
assistance allowance to a veteran for a spouse who is also a veteran and
for a child will not bar the payment of additional educational
assistance allowance or additional subsistence allowance under 21.260
to the spouse for his or her spouse and the same child. The term child
includes a veteran who meets the requirements of 3.57 of this chapter,
even though the child is receiving subsistence allowance or educational
assistance allowance under 38 U.S.C. Chapter 31, 34 or 36 based on his
or her own service.
(Authority: 38 U.S.C. 3482, 3687)
(h) (Reserved)
(i) Proportionate reduction in monthly training assistance allowance
less than 120 hours -- (1) Reduced training allowance. For any month in
which an eligible veteran pursuing an apprenticeship or on-job training
program fails to complete 120 hours of training the Department of
Veterans Affairs shall reduce the rate specified in paragraph (a) of
this section proportionally. In this computation the Department of
Veterans Affairs shall round the number of hours worked to the nearest
multiple of eight.
(2) Definition of ''hours worked.'' For the purpose of this paragraph
hours worked include only:
(i) The training hours the veteran worked, and
(ii) All hours of the veteran's related training which occurred
during the standard workweek and for which the veteran received wages.
(See footnote 5 to 21.4270(b) as to the requirements for full-time
training.)
(Authority: 38 U.S.C. 3687(b)(3))
(j) Advance payment. (1) Eligibility. The Department of Veterans
Affairs shall pay educational assistance allowance at the rates
specified in paragraph (a) of this section to an eligible veteran, or
serviceperson on active duty enrolled in an approved educational
institution on a half-time or more basis.
(Authority: 38 U.S.C. 3680)
(2) Payment. Upon receipt of an application and if there is no
evidence in the veteran's, serviceman's, or servicewoman's file showing
that he or she is not eligible for such an advance the check for the
allowance, made payable to the veteran, serviceman or servicewoman shall
be mailed to the institution for delivery to the veteran, serviceman or
servicewoman upon registration. No delivery by the institution shall be
made more than 30 days in advance of commencement of his or her program.
If delivery is not made within 30 days after commencement of the
program, the institution shall return the check to the Department of
Veterans Affairs. The Director of the regional office or Department of
Veterans Affairs center of jurisdiction may direct that advance payments
shall not be made to veterans and other eligible persons if the
institution demonstrates an inability to comply with these requirements,
if the institution fails to adequately provide for the safekeeping of
the checks prior to delivery to the student or return to the Department
of Veterans Affairs, or if he or she determines, based upon compelling
evidence, that the institution demonstrates its inability to discharge
its responsibilities under the advanced payment program.
(i) Veterans. The amount of the payment is not to exceed the
allowance for the month or fraction thereof in which the course will
commence plus the allowance for the following month. Subsequent
payments shall be made each month in accordance with provisions set out
in 21.4138, 21.4203, 21.4204, and 21.4205. Final payment may be
withheld until certification is received that the veteran pursued his or
her course and any necessary adjustments made.
(ii) Servicemen and servicewomen on active duty. The payment will be
in a lump sum based upon the amount payable for the entire quarter,
semester, or term, as applicable. The application must be endorsed by
the school to verify information needed to determine the lump-sum
payment.
(iii) Exception. Notwithstanding any provision of this section or
any other section of Title 38, Code of Federal Regulations, on and after
June 1, 1977, no advance payment of benefits shall be made, unless the
individual shall first specifically request such a payment and the
educational institution at which the veteran or eligible person is
accepted or enrolled has agreed to, and can satisfactorily, carry out
the provisions of 38 U.S.C. 3680(d)(4)(B) and (C) and (5) pertaining to
receipt, delivery or return of advance checks and certifications of
delivery and enrollment. Furthermore, all other payments made on or
after that date shall be made only at the end of the month in which the
training for which payment is made shall have occurred.
(iv) Time of payment. The Department of Veterans Affairs will
authorize advance payment only at the beginning:
(A) Of an ordinary school year, or
(B) Of any other enrollment period which begins after a break of 30
days or more, provided the veteran is not eligible for payment for the
break. See 21.4138(d) for payments made after advance payments.
(Authority: 38 U.S.C. 3680(d))
(3) Application. Payment will be authorized upon receipt of an
application which in the case of an eligible serviceman or servicewoman
has been endorsed by the educational institution. The application will
contain a certification showing the following information:
(i) The veteran, serviceman or servicewoman is eligible for
educational benefits;
(ii) He or she has been accepted by the institution or is eligible to
continue his or her training there;
(iii) He or she has notified the institution of his or her intention
to attend that institution or to reenroll in it;
(iv) The number of semester, clock or Carnegie hours to be pursued by
the veteran, serviceman or servicewoman and the cost of the course for
the serviceman or servicewoman; and
(v) The beginning and ending dates of the enrollment period.
(k) Mitigating circumstances. (1) VA will not pay benefits to a
veteran for a course from which the veteran withdraws or receives a
nonpunitive grade which is not used in computing requirements for
graduation unless the provisions of this paragraph (k)(1) are met.
(i) The veteran withdraws because he or she is ordered to active
duty; or
(ii) All of the following criteria are met:
(A) There are mitigating circumstances;
(B) The veteran submits a description of the circumstances in writing
to VA either within one year from the date VA notifies the veteran that
he or she must submit the mitigating circumstances or at a later date if
the veteran is able to show good cause why the one-year time limit
should be extended to the date on which he or she submitted the
description of the mitigating circumstances; and
(C) The veteran submits evidence supporting the existence of
mitigating circumstances within one year of the date that evidence is
requested by VA.
(Authority: 38 U.S.C. 3680(a); Pub. L. 102-127)
(2) The following circumstances are representative of those which the
Department of Veterans Affairs considers to be mitigating provided they
prevent the veteran or eligible person from pursuing the program of
education continuously. This list is not all-inclusive.
(i) An illness of the veteran or other eligible person,
(ii) An illness or death in the veteran's or eligible person's
family,
(iii) An unavoidable geographical transfer resulting from the
veteran's or eligible person's employment,
(iv) An unavoidable change in the veteran's or eligible person's
conditions of employment,
(v) Immediate family or financial obligations beyond the control of
the veteran or eligible person which require him or her to suspend
pursuit of the program of education to obtain employment,
(vi) Discontinuance of a course by the school,
(vii) Unanticipated active duty for training,
(viii) Unanticipated difficulties in caring for the veteran's or
eligible person's child or children.
(Authority: 38 U.S.C. 3680(a); Pub. L. 100-689)
(3) If the student fails to complete satisfactorily a course under
Subchapter V, Chapter 34, Title 38 U.S.C., without fault, the Department
of Veterans Affairs will consider the circumstances which caused the
failure to be mitigating. This will be the case even if the
circumstances were not so severe as to preclude continuous pursuit of a
program of education.
(4) In the first instance of a withdrawal after May 31, 1989, from a
course or courses for which the veteran received educational assistance
under either title 38 U.S.C. or chapter 106, title 10 U.S.C., VA will
consider that mitigating circumstances exist with respect to courses
totaling not more than six semester hours or the equivalent. Veterans
to whom this subparagraph applies are not subject to the reporting
requirement found in paragraph (k)(l)(ii) of this section.
(Authority: 38 U.S.C. 3680(a)(4); Pub. L. 100-689)
(5) If the student withdraws from a course during a drop-add period,
VA will consider the circumstances which caused the withdrawal to be
mitigating. Veterans who withdraw from a course during a drop-add
period are not subject to the reporting requirement found in paragraph
(k)(1)(ii) of this section.
(Authority: 38 U.S.C. 3680(a))
(l) Courses leading to a secondary school diploma or equivalency
certificate. (1) The monthly rate of educational assistance allowance
payable to a serviceperson enrolled in a course leading to a secondary
school diploma or an equivalency certificate shall be the rate specified
in paragraph (c) of this section.
(2) The monthly rate of educational assistance allowance payable to a
veteran, not on active duty, who is enrolled in a course leading to a
secondary school diploma or equivalency certificate shall be determined
as follows:
(i) The monthly rate shall be the rate for institutional training
stated in paragraph (a) of this section if:
(A) The veteran was enrolled in the course on October 1, 1980, and
(B) The veteran has remained continuously enrolled after October 1,
1980 in courses leading to a secondary school diploma or an equivalency
certificate.
(ii) If the veteran's enrollment does not meet the requirements of
paragraph (1)(2)(i) of this section, the veteran may elect to receive
either of the following sets of monthly rates:
(A) The first set is either the monthly rate of established charges
for tuition and fees required of similarly circumstanced nonveterans
enrolled in the same program, or the monthly rate for institutional
training found in paragraph (a) of this section, whichever is less.
(B) The second set of monthly rates is the monthly rate for
institutional training found in paragraph (a) of this section. See
21.1045 for the way in which this election will affect the charge
against the veteran's entitlement.
(Authority: 38 U.S.C. 3491)
(m) Incarcerated veterans -- general. Notwithstanding the provisions
of paragraphs (a) and (c) of this section, some incarcerated veterans
and servicepersons may have their educational assistance allowance
terminated or reduced.
(Authority: 38 U.S.C. 3482(g))
(n) No educational assistance allowance for some incarcerated
servicepersons. As with servicepersons who are not incarcerated, the
Department of Veterans Affairs will not pay educational assistance
allowance to an incarcerated serviceperson enrolled in a course for
which there are no tuition and fees. Furthermore, the Department of
Veterans Affairs will not pay educational assistance allowance to a
serviceperson who:
(1) Is enrolled in a course where his or her tuition and fees are
being paid for by a Federal program (other than one administered by the
Department of Veterans Affairs) or by a State or local program, and
(2) Is incarcerated in a Federal, State or local prison or jail for
conviction of a felony, and has incurred no expenses for supplies, books
or equipment.
(o) No educational assistance allowance for some incarcerated
veterans. The Department of Veterans Affairs will pay no educational
assistance allowance to a veteran who:
(1) Is incarcerated in a Federal, State or local penal institution
for conviction of a felony, and
(2) Is enrolled in a course:
(i) For which there are no tuition and fees, or
(ii) For which tuition and fees are being paid by a Federal program
(other than one administered by the Department of Veterans Affairs) or
by a State or local program, and
(3) Is incurring no charge for the books, supplies and equipment
necessary for the course.
(p) Reduced educational assistance allowance for some incarcerated
servicepersons. (1) The Department of Veterans Affairs will pay a
reduced educational assistance allowance to a serviceperson who:
(i) Is incarcerated in a Federal, State or local penal institution
for conviction of a felony, and
(ii) Is enrolled in a course where his or her tuition and fees are
being paid for entirely or partly by a Federal program (other than one
administered by the Department of Veterans Affairs) or by a State or
local program, and
(iii) If all the tuition and fees are paid for by such a program,
must buy books, supplies or equipment for the course.
(2) The monthly rate of educational assistance allowance payable to a
serviceperson described in paragraph (p)(1) of this section shall equal
the lowest of the following:
(i) The monthly rate of the portion of the tuition and fees paid by
the serviceperson plus the monthly rate of the cost of books, supplies
and equipment paid by the serviceperson;
(ii) The monthly rate of the portion of the tuition and fees paid by
the serviceperson plus the monthly rate of the portion of tuition and
fees paid by the Federal, State or local program; or
(iii) The monthly rate found in paragraph (c)(2) of this section.
(q) (Reserved)
(r) Reduced educational assistance allowance for some incarcerated
veterans -- felony conviction. (1) The Department of Veterans Affairs
will pay a reduced educational assistance allowance to a veteran who:
(i) Is incarcerated in a Federal, State or local penal institution
for conviction of a felony, and
(ii) Is enrolled in a course:
(A) For which the veteran pays some (but not all) of the charges for
tuition and fees, or
(B) For which a Federal program (other then one administered by the
Department of Veterans Affairs) or a State or local program pays all the
charges for tuition and fees, but which requires the veterans to pay for
books, supplies and equipment.
(2) The monthly rate of educational assistance allowance payable to
such a veteran who is pursuing the course on a half-time or greater
basis shall be the lesser or the following:
(i) The monthly rate of the portion of the tuition and fees that the
veteran must pay plus the monthly rate of the charge to the veteran for
the cost of necessary supplies, books and equipment, or
(ii) The monthly rate stated in paragraph (a) of this section for a
veteran with no dependents.
(3) The monthly rate of educational assistance allowance payable to
such a veteran who is pursuing the course on a less than half-time basis
or on a one quarter-time basis shall be the lowest of the following:
(i) The monthly rate of the tuition and fees charged for the course,
(ii) The monthly rate of tuition and fees which the veteran must pay
plus the monthly rate of the charge to the veteran for the cost of
necessary supplies, books and equipment, or
(iii) The monthly rate stated in paragraph (a) of this section.
(Authority: 38 U.S.C. 3482(g))
(s) Payment for independent study. The Department of Veterans
Affairs shall pay to a veteran who is pursuing only independent study
under Chapter 34, Title 38 U.S.C., an educational assistance allowance
based on the training time determined in 21.4272(h) at the rate
prescribed in paragraphs (a) and (b) of this section.
(t) Payment for independent study-resident training. A veteran who
is pursuing independent study-resident training under Chapter 34, Title
38 U.S.C., shall be paid an educational assistance allowance based on
the training time determined in 21.4272(i) at the institutional rate
prescribed in paragraph (a) of this section.
(Authority: 38 U.S.C. 3482)
Cross Reference: Fractions of 1 cent. See 3.112 of this chapter.
(31 FR 8292, June 14, 1966)
Editorial Note: For Federal Register citations affecting 21.4136,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.