Proposed Rule2023-03964
Bar to Approval
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 27, 2023
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) is proposing to amend its regulations that govern VA's administration of educational assistance programs to implement a provision of the Veterans Benefits and Transition Act of 2018, which requires a State Approving Agency (SAA), or the Secretary of VA (when acting as the SAA), to disapprove programs of education provided by educational institutions that do not permit individuals using benefits under certain VA educational assistance programs to attend or participate in courses while awaiting payment from VA and that impose a penalty on an individual for failure to meet financial obligations due to a delayed VA payment. We would also implement a provision that would allow educational institutions to require a claimant using education benefits to submit certain documents. In addition, we would make clear that an educational institution may require a claimant to pay certain fees or charges if VA delays payment and ultimately pays less than what an educational institution anticipated receiving.
Full Text
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<title>Federal Register, Volume 88 Issue 38 (Monday, February 27, 2023)</title>
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[Federal Register Volume 88, Number 38 (Monday, February 27, 2023)]
[Proposed Rules]
[Pages 12293-12296]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03964]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 21
RIN 2900-AQ99
Bar to Approval
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend
its regulations that govern VA's administration of educational
assistance programs to implement a provision of the Veterans Benefits
and Transition Act of 2018, which requires a State Approving Agency
(SAA), or the Secretary of VA (when acting as the SAA), to disapprove
programs of education provided by educational institutions that do not
permit individuals using benefits under certain VA educational
assistance programs to attend or participate in courses while awaiting
payment from VA and that impose a penalty on an individual for failure
to meet financial obligations due to a delayed VA payment. We would
also implement a provision that would allow educational institutions to
require a claimant using education benefits to submit certain
documents. In addition, we would make clear that an educational
institution may require a claimant to pay certain fees or charges if VA
delays payment and ultimately pays less than what an educational
institution anticipated receiving.
DATES: Comments must be received on or before April 28, 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
the 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: Cheryl A. Amitay, Chief, Policy and
Regulation Development Staff (225C), Education Service, Department of
Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202)
461-9800 (This is not a toll-free telephone number).
SUPPLEMENTARY INFORMATION: Prior to August 1, 2019, an educational
institution could prohibit an individual utilizing educational
assistance under chapter 31 or chapter 33 of title 38, U.S.C., from
attending classes if either part or all the claimant's tuition and fees
had not been paid, even if the delinquent tuition and fee payment was
due to a delay in VA paying the school. On December 31, 2018, sec. 103
of the Veterans Benefits and Transition Act of 2018, Public Law 115-
407, added subsection (e) to 38 U.S.C. 3697. Section 3679(e) requires a
State Approving Agency (SAA), or the Secretary of the Department of
Veterans Affairs (VA) when acting as a SAA, to disapprove, programs of
education that do not permit individuals using benefits under either
chapter 31 or chapter 33 to attend or participate in courses while
awaiting payment from VA. Specifically, beginning on August 1, 2019, an
educational institution is prohibited from employing a policy which
prevents an individual from attending classes or participating in a
program of education while awaiting payment from VA if the individual
provides the school with a ``certificate of eligibility.'' In addition,
an educational institution must not impose any penalty on an individual
for failure to meet financial obligations due
[[Page 12294]]
to a delayed VA payment under chapter 31 or chapter 33. However, the
law authorizes VA to waive any of these requirements as considered
appropriate.
VA proposes to add 38 CFR 21.4259A to implement these statutory
provisions. We would make clear in Sec. 21.4259A(a)(1) that an
educational institution will face disapproval if it does not permit a
claimant using benefits under chapter 31 or chapter 33 to attend
courses within their program of education beginning on the date the
claimant provides the necessary eligibility documentation until the
earlier of the date VA provides payment to the educational institution
or 90 days after the date the educational institution certifies its
tuition and fees charges to VA following receipt of the claimant's
eligibility documentation.
Section 103 does not explicitly define ``certificate of
eligibility'' and does not otherwise refer to any one VA document or
form that provides eligibility documentation. We interpret the term
``certificate of eligibility'' as used in sec. 103 as referring to any
verifiable and authoritative document describing a claimant's
entitlement to education benefits, to include the amount or percentage
of benefits and the last date to use the benefits awarded, such as a
decision or notice of a decision on a claimant's application for
educational assistance, a letter from VA, an updated award letter from
VA, a print-out of eligibility (statement of benefits) from e-Benefits,
or a Statement of Benefits from the Post-9/11 GI Bill Benefits tool.
In addition, Sec. 21.4259A(a)(2) would make clear that an
educational institution must ensure that it does not impose any
penalty, including the assessment of late fees, denial of access to
classes, libraries, or other institutional facilities, or require a
claimant using benefits under chapter 31 or chapter 33 to borrow
additional funds due to the inability to meet his or her financial
obligations to the institution, as a result of delayed payments of
educational assistance from VA.
In Sec. 21.4259A(b), we would define a covered individual for
purposes of this section as any individual who is entitled to
educational assistance under 38 U.S.C. chapter 31 or chapter 33.
Section 21.4259A(c) would contain the authorized provision allowing VA
to waive any of the requirements regarding the educational
institutions' responsibilities in Sec. 21.4259A.
Under new sec. 3679(e)(4), educational institutions would
nonetheless be permitted to require a claimant using benefits under
chapter 31 or chapter 33 to take the following actions:
<bullet> Submit verifiable and authoritative proof of eligibility
for entitlement to educational assistance not later than the first day
of a course of education for which the claimant has indicated he or she
wishes to use entitlement to educational assistance.
<bullet> Submit a written request to use such entitlement.
<bullet> Provide additional information necessary to the proper
certification of enrollment by the educational institution.
We would include these submissions that an educational institution
may require in Sec. 21.4259A(d)(1). In addition, in Sec.
21.4259A(d)(1)(iii), to give notice to students attending an
educational institution and to facilitate VA's oversight of educational
institutions' compliance with the law, we would require an educational
institution to clearly state any requirements for the submission of
additional information for certifying enrollment in their published
catalog and would also require approval by the SAA of any requirements
to submit additional information.
Section 103(c) further provides that an educational institution may
collect additional payments or fees from a claimant in an amount that
is the difference between the amount owed and the amount VA paid if the
claimant is unable to meet his or her financial obligations to the
institution because of delayed payments of educational assistance from
VA under chapter 31 or chapter 33 and the amount that VA eventually
pays is less than what the educational institution anticipated
receiving. Thus, when a claimant is not entitled to payment of the full
amount of tuition, but the educational institution anticipated
receiving full tuition, the educational institution may collect the
difference between the amount VA has paid to the educational
institution on the claimant's behalf and the total amount owed by the
claimant to the educational institution. We would implement this
requirement in Sec. 21.4259A(d)(2).
We interpret the permissibility of allowing a school to collect the
additional payment in cases when VA does not ultimately pay the amount
the educational institution anticipates receiving as indicating
Congress' intent to allow a school to require a claimant to pay fees or
charges that VA does not ordinarily pay in any event. VA ordinarily
pays subsistence, tuition, fees, and other educational costs. See 38
U.S.C. 3313(a); see also 38 CFR 21.9620 (noting tuition and fees are
payable). VA does not ordinarily pay for room and board and certain
optional fees. According to 38 CFR 21.9505, ``fees'' means ``any
mandatory charges (other than tuition, room, and board) that are
applied by the institution of higher learning for pursuit of an
approved program of education.'' Also, according to Sec. 21.9505,
``fees do not include those charged for a study abroad course(s) unless
the course(s) is a mandatory requirement for completion of the approved
program of education.'' On the other hand, pursuant to Sec. 21.9505,
payable fees include, but are not limited to, health premiums, freshman
fees, graduation fees, and lab fees. Therefore, for example, if a
claimant is living in a dormitory, section 3679(e) does not prohibit
the school from following its standard procedures for charging and
collecting payment (including assessing late fees or penalties) for
dormitory fees. Another example is that the school is not prohibited
from charging and collecting optional fees such as for parking permits.
However, the school is prohibited from charging the claimant for
mandatory freshman fees, health premiums, graduation fees, or lab fees,
or assessing late fees due to VA's delayed payment of these mandatory
fees. We would make clear in Sec. 21.4259A(d)(2)(i) that a school
would not be prohibited from requiring a claimant to pay fees or
charges that VA does not ordinarily pay, and in Sec.
21.4259A(d)(2)(ii), that a school may use standard debt collection
policies for collecting these fees.
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 proposed 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 of Veterans Affairs hereby certifies that this
proposed
[[Page 12295]]
regulatory action 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. Although this proposed
rule includes provisions that entail costs to training institutions,
such as the loss of late fees that institutions are prohibited from
assessing when a student is unable to meet financial obligations to the
institution, and the cost of publication of the requirements for
submitting additional information needed for certifying enrollment, the
provisions merely restate existing provisions of statute, and thus will
have no additional impact on such small entities. Therefore, under 5
U.S.C. 605(b), this proposed rule is exempt from the initial and final
regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.
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 the 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
This proposed rule includes a provision constituting a new
collection of information under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501-3521) that requires approval by the Office of Management
and Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has
submitted a copy of this rulemaking action to OMB for review.
OMB assigns control numbers to collections of information it
approves. VA may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. Proposed 38 CFR 21.4259A contains a
collection of information under the Paperwork Reduction Act of 1995. If
OMB does not approve the collection of information as requested, VA
will immediately remove the provision containing a collection of
information or take such other action as is directed by OMB.
Comments on the new collection of information contained in this
rulemaking should be submitted through HYPERLINK ``<a href="https://www.regulations.gov/">https://www.regulations.gov/</a>''. Comments should indicate that they are
submitted in response to ``RIN 2900-AQ99; Bar To Approval'' and should
be sent within 60 days of publication of this rulemaking. The
collection of information associated with this rulemaking can be viewed
at: HYPERLINK ``<a href="https://www.reginfo.gov/public/do/PRAMain">https://www.reginfo.gov/public/do/PRAMain</a>''.
OMB is required to make a decision concerning the collection of
information contained in this proposed rule between 30 and 60 days
after publication of this document in the Federal Register. Therefore,
a comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. This does not affect the
deadline for the public to comment on the proposed rule.
The Department considers comments by the public on proposed
collections of information in--
<bullet> Evaluating whether the proposed collection of information
is necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
<bullet> Evaluating the accuracy of the Department's estimate of
the burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
<bullet> Enhancing the quality, usefulness, and clarity of the
information to be collected; and
<bullet> Minimizing the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
The collection of information contained in 38 CFR 21.4259A is
described immediately following this paragraph, under its respective
title.
Title: Publishing of Requirement to Submit Additional Information
Necessary for Certification of Enrollment.
OMB Control No.: 2900-xxxx.
CFR Provision: 38 CFR 21.4259A(d)(1)(iii).
<bullet> Summary of collection of information: This new collection
of information in proposed Sec. 21.4259(d)(1)(iii) would require
educational institutions to give notice to enrolled and potential
students of any information in addition to the information already
enumerated in their catalogs that the educational institution requires
for certification of claimants' enrollment. The educational
institutions would be required to publish any additional information,
after it is approved by the SAA, in their online or print catalogs.
<bullet> Description of need for information and proposed use of
information: The information collected will be used by VA to facilitate
VA's oversight of educational institutions and to ensure their
compliance with Sec. 21.4259A.
<bullet> Description of likely respondents: Educational
institutions.
<bullet> Estimated total number of respondents: 16,084 educational
institutions.
<bullet> Estimated frequency of responses: Once.
<bullet> Estimated average burden per response: Two hours or less.
<bullet> Estimated total annual reporting and recordkeeping burden:
VA estimates the total annual reporting and recordkeeping burden to be
32,168 burden hours. Using the annual number of responses, VA estimates
a total annual reporting and recordkeeping burden of 32,168 hours for
respondents.
<bullet> Estimated cost to respondents per year: VA estimates the
annual cost to respondents to be $901,025.68 (16,084 respondents per
year x 2 hours per application x $28.01*).
* To estimate the total information collection burden cost, VA used
the Bureau of Labor Statistics (BLS) median hourly wage for ``all
occupations'' of $28.01 per hour. This information is available at:
<a href="https://www.bls.gov/oes/current/oes_nat.htm#00-0000">https://www.bls.gov/oes/current/oes_nat.htm#00-0000</a>.
Assistance Listing
The Assistance Listing numbers and titles for the programs affected
by this document are 64.027, Post-9/11 Veterans Educational Assistance;
64.028, Post-9/11 Veterans Educational Assistance; 64.032, Montgomery
GI Bill Selected Reserve; Reserve Educational Assistance Program;
64.117, Survivors and Dependents Educational Assistance; 64.120, Post-
Vietnam Era Veterans' Educational Assistance; 64.124, All-Volunteer
Force Educational Assistance.
List of Subjects in 38 CFR Part 21
Administrative practice and procedure, Armed forces, Claims,
Colleges and universities, Education, Employment, Reporting and
recordkeeping requirements, Schools, Veterans, Vocational education,
Vocational rehabilitation.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on February 21, 2023, and authorized the undersigned to sign
and submit the document to the Office of the Federal Register for
publication
[[Page 12296]]
electronically as an official document of the Department of Veterans
Affairs.
Luvenia Potts,
Regulation Development Coordinator, 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 21 as set forth below:
PART 21--VOCATIONAL REHABILITATION AND EDUCATION
Subpart D--Administration of Educational Assistance Programs
0
1. The authority citation for part 21, subpart D continues to read as
follows:
Authority: 10 U.S.C. 2141 note, ch. 1606; 38 U.S.C. 501(a), chs.
30, 32, 33, 34, 35, 36, and as noted in specific sections.
0
2. Add Sec. 21.4259A to read as follows:
Sec. 21.4259A Bar to approval.
(a) Beginning on August 1, 2019, a State approving agency, or the
Secretary when acting in the role of the State approving agency, shall
disapprove a program of education provided by an educational
institution that has in effect a policy that is inconsistent with any
of the following:
(1) A policy that permits any covered individual to attend or
participate in the program of education during the period beginning on
the date on which the individual provides to the educational
institution any verifiable and authoritative VA document demonstrating
entitlement to educational assistance under 38 U.S.C. chapter 31 or
chapter 33 (such as a decision or notice of decision on entitlement,
letter from VA, updated award letter from VA, print-out of eligibility
(statement of benefits) from e-Benefits, or Statement of Benefits from
the Post-9/11 GI Bill Benefits tool) and ending on the earlier of the
following dates:
(i) The date on which payment from VA is made to the institution.
(ii) The date that is 90 days after the date on which the
educational institution certifies tuition and fees following receipt of
the verifiable and authoritative VA document proving entitlement to
educational assistance under 38 U.S.C. chapter 31 or chapter 33.
(2) A policy that ensures an educational institution will not
impose any penalty, including the assessment of late fees, the denial
of access to classes, libraries, or other institutional facilities, or
the requirement that a covered individual borrow additional funds, on
any covered individual because of the individual's inability to meet
his or her financial obligations to the institution due to the delayed
disbursement of a payment to be provided by VA under 38 U.S.C. chapter
31 or chapter 33.
(b) For purposes of this section, a covered individual is any
individual who is entitled to educational assistance under 38 U.S.C.
chapter 31 or chapter 33.
(c) The Secretary (or designee) may waive such requirements of
paragraph (a) of this section as the Secretary (or designee) considers
appropriate.
(d) It shall not be inconsistent with a policy described in
paragraph (a) of this section for an educational institution:
(1) To require a covered individual to take the following
additional actions:
(i) Submit any verifiable and authoritative VA document to prove
entitlement to educational assistance under 38 U.S.C. chapter 31 or
chapter 33 not later than the first day of a program of education for
which the individual has indicated the individual wishes to use the
individual's entitlement to educational assistance.
(ii) Submit a written request to use such entitlement.
(iii) Provide additional information necessary to the proper
certification of enrollment by the educational institution. If an
educational institution intends to require additional information
necessary for proper certification of enrollment, any such requirement
must be included in the school's published catalog and also must be
approved by the State approving agency, or the Secretary when acting in
the role of the State approving agency, as being necessary for proper
certification and not overly burdensome to submit.
(2) In a case in which a covered individual is unable to meet a
financial obligation to an educational institution due to the delayed
disbursement of a payment to be provided by VA under 38 U.S.C. chapter
31 or chapter 33 and the amount of such disbursement is less than the
educational institution anticipated, to require additional payment of
or impose a fee for the amount that is the difference between the
amount of the financial obligation and the amount of the disbursement.
(i) Such additional payment may include the amount of a financial
obligation associated with charges for which VA does not pay benefits
(e.g., room and board, any portion of tuition for which a claimant does
not qualify).
(ii) An educational institution may utilize its standard debt
collection policies for these amounts, including the assessment of late
fees.
(Authority: 38 U.S.C. 3697(e))
[FR Doc. 2023-03964 Filed 2-24-23; 8:45 am]
BILLING CODE 8320-01-P
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