Proposed Rule2022-26672
Allowances for Caskets and Urns for Unclaimed Remains of Veterans
Primary source
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Published
December 8, 2022
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) proposes to revise its regulation that governs the program that furnishes caskets and urns for the burial of remains of veterans with no known next-of-kin (NOK) where sufficient resources are not available for this purpose. First, VA proposes to implement the Charles Duncan Buried with Honor Act of 2016 that expanded the casket and urn authority to apply to eligible veteran burials in State and Tribal cemeteries that received a VA cemetery grant. Further, VA proposes to issue flat-rate allowances for caskets and urns rather than calculate the average cost for those items on an annual basis. Using flat-rate allowances would promote consistency and efficiency in the administration of this program. Additionally, we propose an update to the casket specifications based on feedback from funeral directors and other funeral industry professionals. Finally, VA proposes to amend the regulation by eliminating the retroactive reimbursement provisions. This change would reflect the fact that these provisions are no longer needed because the relevant applicability period has passed.
Full Text
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<title>Federal Register, Volume 87 Issue 235 (Thursday, December 8, 2022)</title>
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[Federal Register Volume 87, Number 235 (Thursday, December 8, 2022)]
[Proposed Rules]
[Pages 75196-75199]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-26672]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 38
RIN 2900-AR36
Allowances for Caskets and Urns for Unclaimed Remains of Veterans
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to revise its
regulation that governs the program that furnishes caskets and urns for
the burial of remains of veterans with no known next-of-kin (NOK) where
sufficient resources are not available for this purpose. First, VA
proposes to implement the Charles Duncan Buried with Honor Act of 2016
that expanded the casket and urn authority to apply to eligible veteran
burials in State and Tribal cemeteries that received a VA cemetery
grant. Further, VA proposes to issue flat-rate allowances for caskets
and urns rather than calculate the average cost for those items on an
annual basis. Using flat-rate allowances would promote consistency and
efficiency in the administration of this program. Additionally, we
propose an update to the casket specifications based on feedback from
funeral directors and other funeral industry professionals. Finally, VA
proposes to amend the regulation by eliminating the retroactive
reimbursement provisions. This change would reflect the fact that these
provisions are no longer needed because the relevant applicability
period has passed.
DATES: Comments must be received by VA on or before February 6, 2023.
ADDRESSES: Comments must be submitted through <a href="http://www.regulations.gov">www.regulations.gov</a>.
Except as provided below, comments received before the close of the
comment period will be available at <a href="http://www.regulations.gov">www.regulations.gov</a> for public
viewing, inspection, or copying, including any personally identifiable
or confidential business information that is included in a comment. We
post the comments received before the close of the comment period on
the following website as soon as possible after they have been
received: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. VA will not post on
<a href="http://Regulations.gov">Regulations.gov</a> public comments that make threats to individuals or
institutions or suggest that the commenter will take actions to harm an
individual. VA encourages individuals not to submit duplicative
comments. We will post acceptable comments from multiple unique
commenters even if the content is identical or nearly identical to
other comments. Any public comment received after the comment period's
closing date is considered late and will not be considered in the final
rulemaking.
FOR FURTHER INFORMATION CONTACT: Daniel Catron, Supervisory Program
Analyst, National Cemetery Administration, Department of Veterans
Affairs, 810 Vermont Avenue NW, Washington, DC 20420;
<a href="/cdn-cgi/l/email-protection#90d4f1fef9f5fcbed3f1e4e2fffed0e6f1bef7ffe6"><span class="__cf_email__" data-cfemail="8ecaefe0e7ebe2a0cdeffafce1e0cef8efa0e9e1f8">[email protected]</span></a>, telephone: (314) 416-6324 (this is not a toll-
free number).
SUPPLEMENTARY INFORMATION:
Implementing Regulations for Statutory Program Expansion
Section 2306(f) of title 38, United States Code (U.S.C.),
authorizes VA to furnish a casket or urn for burial of the unclaimed
remains of veterans for whom VA cannot identify the NOK and determines
that sufficient resources for the furnishing of a casket or urn for
burial are not available. In 2016, Congress authorized an expansion of
the casket and urn program to include VA grant-funded State and Tribal
veterans' cemeteries. Therefore, burial of an eligible veteran must
take place in a VA national cemetery or a veterans' cemetery of a State
or Tribal Organization for which VA has provided a grant under 38
U.S.C. 2408. VA proposes to amend its regulations in 38 CFR 38.628 to
reflect the expanded scope of the program. To implement this change, we
propose to revise the introductory text of paragraph (a) and the text
of paragraph (c)(1) of Sec. 38.628.
[[Page 75197]]
Flat-Rate Allowances
Consistent with other VA burial-related benefits, VA proposes to
pay flat-rate allowances to individuals or entities that purchase
caskets and urns for burial of unclaimed remains of veterans who die
without NOK and sufficient resources for burial. Under current Sec.
38.628(a), VA will reimburse any individual or entity for the actual
cost of a casket or urn purchased for an eligible veteran, and under
Sec. 38.628(d), reimbursements will be capped by the average market
cost for a 20-gauge metal casket or a durable urn during the fiscal
year preceding the calendar year of the claim. In this proposed rule,
VA would replace reimbursements based on actual costs capped by annual
average market prices with flat-rate allowances that are based on
historical payment averages.
Since the inception of the casket and urn reimbursement program
eight years ago, VA has received feedback from funeral homes expressing
dissatisfaction with VA's annual calculations of the average market
costs, which many have stated do not reflect what they normally charge
private individuals and entities, because the calculations do not
include commercial mark-ups for caskets or urns. VA appreciates this
input. We note that the purpose of the casket and urn program is to
offset costs for individuals and entities that bring eligible veterans
to VA national and grant-funded cemeteries, and not to purchase caskets
or urns from funeral homes at the same rates funeral homes would charge
in connection with commercial funerals or to reimburse the full cost of
caskets and urns that may far exceed the regulatory standards. In order
to avoid confusion regarding the ``actual cost'' standard, VA clarified
the regulation by requiring that actual costs be shown by invoices
reflecting the purchase price of the casket or urn purchased by the
individual or entity requesting reimbursement.
Funeral homes have also expressed a lack of confidence in VA's
annual average market cost calculations, given the wide variance in the
maximum reimbursement rates from year to year. VA acknowledges the
variations in the calculated maximum rates do not reflect actual
variations in market costs over the same period, which have remained
relatively static. Since the program began, the maximum reimbursement
rate based on average market cost for a casket has fluctuated 96.8
percent, with a high of $2,681 and a low of $1,362. The maximum
reimbursement rate based on average market cost for an urn has been as
high as $244 and as low as $120, producing a 103.3-percent variance.
VA is also concerned that reimbursement at the purchase price as
shown by an invoice has encouraged certain individuals and entities to
attempt to inflate reimbursements. VA has frequently received invoices
showing purchase prices equal to the year's maximum reimbursement rate.
Because those rates were based on cost averages of market prices from
the previous fiscal year, VA questioned the validity of those invoices.
Actual fraud in these cases, however, is difficult to prove and costly
for the government to prosecute.
After VA clarified the regulatory standard requiring an invoice
showing purchase prices and began challenging questionable invoices,
however, program utilization decreased.
In response to these issues, VA proposes to cease the annual
calculation and payment of reimbursement rates that vary from year to
year, which have created confusion and caused lack of confidence among
those who participate in the program. VA believes those issues would be
eliminated by the proposed payment of flat-rate allowances for eligible
claims. This would be a more consistent and predictable method of
offsetting the costs of caskets and urns purchased for the dignified
interment of unclaimed veterans' remains.
To effectuate the flat-rate allowances, VA proposes to amend Sec.
38.628 to remove all references to ``reimburse'' and ``reimbursement''
and replace them with ``allowance''. These references would appear in
the section heading of the regulation, the introductory text of
paragraph (a), the introductory text of paragraph (c), and paragraph
(d). We also propose to remove the text referring to actual cost in
paragraph (a), and we propose to clarify in paragraph (a) that the
amount of the allowances would be established in paragraph (d). As
shown in proposed paragraph (e), VA would, on an annual basis, make
cost-of-living adjustments for the flat-rate allowances using the
Consumer Price Index, a methodology used in similar VA monetary
allowances. Consistent with the Veterans Benefits Administration (VBA)
cost increases for monetary allowances under 38 U.S.C. 2303, from June
to June each year, the National Cemetery Administration (NCA) would
apply the percentage increase (rounded to the nearest dollar) for
caskets and urns. Use of VBA's cost-of-living increase analysis would
promote consistency across VA benefit programs and ensure the casket
and urn allowances meet current costs, to the extent practicable.
For urns, VA proposes to use historical average payments made by
VA, which were based on invoices showing the purchase prices of urns
meeting the regulatory specifications. VA reviewed maximum
reimbursement rates for urns applicable for calendar years 2015 ($172),
2016 ($244), 2017 ($163), 2018 ($169), 2019 ($162), 2020 ($149), and
2021 ($145), which equates to an average annual reimbursement cap of
$172 during that period. VA also found that the average actual
reimbursement rate during that period was $138, which was the same as
the average actual cost, shown by invoices, for a total of 77 urn
claims. This payment average based on invoice price is lower than the
$172 average of annual reimbursement caps calculated from 2015 to 2021.
We note that during that time frame, based on VA historical payment
data, invoice prices for urns that met Sec. 38.628(c)(5)(ii)
specifications did not have any significant increases or decreases. A
flat rate allowance based on historical invoice payment data, which
remained relatively static when compared to previously calculated
maximum reimbursement rates based on market price cost averages that
changed more significantly from year to year, is a more logical means
of administering this benefit. Additionally, we believe this standard
would encourage potential claimants to choose urns that meet the
regulatory standards priced within the predictable and consistent flat-
rate reimbursement amount. Based on this information, we propose the
flat-rate allowance in paragraph (d) for urns to be $138, which is
reflective of the average VA reimbursement based on actual cost from
2015 to 2021 for urns meeting regulatory specifications. And, as noted
previously, VA would annually assess the allowance for cost-of-living
increases.
For caskets, VA proposes to revise the definition of a ``casket''
for allowance purposes in Sec. 38.628(c)(5)(i) by removing the
requirement for a gasketed seal. Based on input from funeral homes and
other funeral industry professionals, the gasketed seal is not
necessary, except when remains are transported by air in pressurized
settings. Most claimants present casketed remains for interment that
are locally transported by land from funeral homes, rendering the
gasketed seal unnecessary. Also, gasketed caskets are more costly than
non-gasketed caskets that still serve the purpose of safely containing
human remains.
Similar to VA's analysis supporting the proposed flat-rate urn
allowance, VA considered historical payment data for caskets that met
regulatory
[[Page 75198]]
specifications for calendar years 2015 through 2021. The maximum
reimbursement rates for gasketed caskets payable for claims from 2015
to 2021 were as follows: $1,967, $2,421, $2,069, $2,131, $2,681,
$1,903, and $1,984, which equate to an average annual reimbursement cap
of $2,165 during that period. However, the average actual reimbursement
rate was $1,426, which was the same as the average actual cost, shown
by invoice, for a total of 1,912 casket claims. VA conducted market
research for the proposed 20-gauge, metal, non-gasketed casket with
external rails or swing arms costs for 2021, which showed an average
market cost of $801, which was $227 less than the average market cost
of $1,028 for comparable gasketed-seal caskets in 2021. VA would deduct
the $227 average cost of a gasket from the $1,426 historical payment
average for gasketed-seal caskets to calculate the proposed flat-rate
allowance of $1,199. Elimination of the unnecessary expense of a
gasketed casket for funeral homes and other purchasers of caskets for
veteran burials would be a more cost-effective means of providing
dignified burials of eligible unclaimed veterans' remains to be safely
handled by cemetery employees. Additionally, use of the flat-rate
allowance for caskets that are based on historical payment costs would
be reflective of the average actual costs paid by claimants that bring
unclaimed veterans to VA national and grant-funded cemeteries for
burial. Although the historical payment data includes caskets allegedly
priced at the maximum reimbursement rate, we do not believe that
undermines our rationale for using this standard for calculating the
casket flat-rate allowance because the casketprices at the maximum
reimbursement rate were outliers and of questionable accuracy. We
believe the revised flat-rate casket allowance would address expressed
claimant concerns and impose practical internal controls for VA. For
these reasons, VA proposes to adopt a flat-rate allowance for non-
gasketed caskets, which we would continue to require to be of metal
construction and at least 20-gauge thickness, designed for containing
human remains, and include external fixed rails or swing arm handles.
The flat-rate casket allowance would also be assessed annually for
cost-of-living increases.
Eliminate Retroactive Reimbursement Provision
Finally, VA proposes to amend the regulation by eliminating the
retroactive reimbursement provisions by removing paragraph (e) from
Sec. 38.628. Current paragraph (e) allows for retroactive
reimbursement for caskets or urns purchased before July 2, 2014, for
burial of the remains of a veteran who died on or after January 10,
2014, to be paid at the calendar year 2015 rates. This provision was
included because the casket and urn authority took effect on January
10, 2014, before the regulations were finalized on April 13, 2015.
However, the paragraph is no longer necessary because the relevant time
periods have passed. VA would pay the allowances that apply based on
the date of claim for reimbursement.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
The Office of Information and Regulatory Affairs has determined that
this rule is not a significant regulatory action under Executive Order
12866. The Regulatory Impact Analysis associated with this rulemaking
can be found as a supporting document at <a href="http://www.regulations.gov">www.regulations.gov</a>.
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule would not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612, because the number of claims and the amounts involved
are expected to be small. We estimate the average cost of a burial
receptacle that meets regulatory specifications under this rule would
be $1,199 for caskets and $138 for urns in 2023. We also estimate that
the total number of allowances for 2023 would be 259 for caskets and 18
for urns. Because the proposed rulemaking would provide for issuance of
an allowance, the individual or entity purchasing the burial receptacle
would only be entitled to recoup the allowance rate, regardless of the
actual purchase price. The purpose of the casket and urn reimbursement
is to help offset a claimant's cost for bringing unclaimed veterans'
remains to burial in a VA national or grant-funded cemetery. Generally,
because the allowance is calculated based on historical average
payments from qualifying purchase prices, this would result in the
individual or entity avoiding a significant financial loss or gain for
having made the purchase.
Therefore, pursuant to 5 U.S.C. 605(b), the initial and final
regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do
not apply.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in an expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This proposed rule would have no such
effect on State, local, and tribal governments, or on the private
sector.
Paperwork Reduction Act
Although this action contains provisions constituting collections
of information at 38 CFR 38.628, under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or revised
collections of information are associated with this proposed rule. The
information collection for 38 CFR 38.628 is currently approved by the
Office of Management and Budget (OMB) and has been assigned OMB control
number 2900-0799.
List of Subjects 38 CFR Part 38
Administrative practice and procedure, Cemeteries, Claims,
Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on November 30, 2022, and authorized the undersigned to sign
and submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs proposes to amend 38 CFR part 38 as set forth below:
[[Page 75199]]
PART 38--NATIONAL CEMETERIES OF THE DEPARTMENT OF VETERANS AFFAIRS
0
1. The authority citation for part 38 continues to read as follows:
Authority: 38 U.S.C. 107, 501, 512, 2306, 2400, 2402, 2403,
2404, 2407, 2408, 2411, 7105.
0
2. Amend Sec. 38.628 by revising the section heading, the introductory
text of paragraphs (a) and (c), and paragraphs (c)(1), (c)(5)(i), (d),
and (e) to read as follows:
Sec. 38.628 Allowance for caskets and urns for unclaimed remains of
veterans.
(a) VA will issue a flat-rate allowance, as established in
paragraph (d) of this section, to any individual or entity for a casket
or urn, purchased by the individual or entity for the burial in a
national cemetery or in a veterans' cemetery of a State or Tribal
Organization that has received a grant under 38 U.S.C. 2408, of an
eligible deceased veteran for whom VA:
* * * * *
(c) An individual or entity may request an allowance from VA under
paragraph (a) of this section by completing and submitting VA Form 40-
10088 and supporting documentation, in accordance with the instructions
on the form. Prior to approving issuance of an allowance, VA must find
all of the following:
(1) The veteran is eligible for burial in a VA national cemetery or
in a veterans' cemetery of a State or Tribal Organization that has
received a grant under 38 U.S.C. 2408;
* * * * *
(5) * * *
(i) Caskets must be of metal construction of at least 20-gauge
thickness, designed for containing human remains, sufficient to contain
the remains of the deceased veteran, and include external fixed rails
or swing arm handles.
* * * * *
(d) The allowance for a claim received in any calendar year under
paragraph (a) of this section is $1,199.00 for a metal casket and
$138.00 for an urn of durable material.
(e) VA will make cost-of-living adjustments for the flat-rate
casket and urn allowances using the Consumer Price Index (CPI). Each
fiscal year, VA will provide a percentage increase (rounded to the
nearest dollar) in the casket and urn flat-rate allowances equal to the
percentage by which the CPI (all items, United States city average) for
the 12-month period (June to June) preceding the beginning of the
fiscal year for which the percentage increase is made exceeds the CPI
for the 12-month period preceding the 12-month period described in this
paragraph (e). VA will only make cost-of-living increases to the flat
rate allowances when the CPI has increased.
* * * * *
(Authority: 38 U.S.C. 2306, 2402, 2411)
[FR Doc. 2022-26672 Filed 12-7-22; 8:45 am]
BILLING CODE 8320-01-P
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