Proposed Rule2023-08884
Post-9/11 Improvements, Fry Scholarship, and Interval Payments Amendments
Primary source
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Published
May 24, 2023
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) is proposing to amend the Veteran Readiness and Employment and Education regulations to implement the provisions of the Post-9/11 Veterans Educational Assistance Improvements Act of 2010, which modified the manner in which payments of educational assistance are determined and expanded the types of programs students may pursue under the Post-9/11 GI Bill. VA is also proposing to implement section 1002 of the Supplemental Appropriations Act, 2009, which authorized the "Marine Gunnery Sergeant John David Fry Scholarship," and a select number of provisions of the Harry W. Colmery Veterans Educational Assistance Act of 2017. This proposed rule would include the rules necessary to implement provisions of other legislative enactments that affect the provision of educational assistance to veterans and their eligible dependents and beneficiaries.
Full Text
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[Federal Register Volume 88, Number 100 (Wednesday, May 24, 2023)]
[Proposed Rules]
[Pages 33672-33720]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-08884]
[[Page 33671]]
Vol. 88
Wednesday,
No. 100
May 24, 2023
Part II
Department of Veterans Affairs
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38 CFR Part 21
Post-9/11 Improvements, Fry Scholarship, and Interval Payments
Amendments; Proposed Rule
Federal Register / Vol. 88 , No. 100 / Wednesday, May 24, 2023 /
Proposed Rules
[[Page 33672]]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 21
RIN 2900-AQ88
Post-9/11 Improvements, Fry Scholarship, and Interval Payments
Amendments
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend
the Veteran Readiness and Employment and Education regulations to
implement the provisions of the Post-9/11 Veterans Educational
Assistance Improvements Act of 2010, which modified the manner in which
payments of educational assistance are determined and expanded the
types of programs students may pursue under the Post-9/11 GI Bill. VA
is also proposing to implement section 1002 of the Supplemental
Appropriations Act, 2009, which authorized the ``Marine Gunnery
Sergeant John David Fry Scholarship,'' and a select number of
provisions of the Harry W. Colmery Veterans Educational Assistance Act
of 2017. This proposed rule would include the rules necessary to
implement provisions of other legislative enactments that affect the
provision of educational assistance to veterans and their eligible
dependents and beneficiaries.
DATES: Comments must be received on or before July 24, 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="http://www.regulations.gov">http://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: Thomas Alphonso, Assistant Director,
Policy and Procedures, Education Service, Department of Veterans
Affairs, Veterans Benefits Administration (22), 810 Vermont Avenue NW,
Washington, DC 20420. Telephone: (202) 461-9800. (This is not a toll-
free telephone number.)
SUPPLEMENTARY INFORMATION:
I. Post-9/11 GI Bill Improvements
a. General
On January 4, 2011, the President signed into law the Post-9/11
Veterans Educational Assistance Improvements Act of 2010, Public Law
111-377, amending mainly chapter 33 of title 38, United States Code
(U.S.C.); however, a few amendments in the law have an impact on other
VA educational assistance programs and title 38 chapters.
b. Effective Dates of Amendments Contained in Public Law 111-377
In most instances, the changes made by Public Law 111-377 had an
effective date of August 1, 2011, although some became effective on the
date of enactment, some became effective after an interval of time
after the signing of the Act (e.g., effective 60 days after the date of
the enactment of this Act, see section 103(c)), some became effective
on October 1, 2011, and some became effective on a retroactive basis.
In this proposed rule, we propose to clarify the effective dates of
each provision in existing and new VA regulations. For instance,
existing 38 CFR 21.9505, 21.9560, 21.9570, 21.9590, 21.9600, 21.9625,
21.9635, 21.9640, 21.9675, 21.9680, 21.9690 and 21.9720 would be
amended to include language explaining that the rules contained in
those existing sections describe the standards in effect before August
1, 2011, unless otherwise noted, whereas Sec. Sec. 21.9506, 21.9561,
21.9571, 21.9591, 21.9601, 21.9626, 21.9636, 21.9641, 21.9667, 21.9668,
21.9676, 21.9681, 21.9691 and 21.9721 would be added with rules
comparable to rules in existing provisions, but applicable after July
31, 2011, unless otherwise noted.
c. Section 101--Modification of Entitlement to Educational Assistance
Section 101(a)(1) of Public Law 111-377 amended 38 U.S.C. 3301(1)
by adding a paragraph that expands the definition of active duty to
include full-time service in the National Guard for certain purposes.
We propose to implement section 101(a)(1) in proposed Sec. Sec.
21.9505 and 21.9506. Under the expanded definition of active duty,
these National Guard members are eligible for Post-9/11 GI Bill
benefits. Section 101(d)(1) prohibits VA from paying benefits because
of the amendment to section 3301(1) before October 1, 2011, but
provides for an effective date of August 1, 2009, for the section
101(a)(1) amendment. Therefore, although a National Guard member may be
entitled to Post-9/11 GI Bill benefits for the period between August 1,
2009, and September 30, 2011, we could not pay these benefits until
October 1, 2011. Presently, under current 38 CFR 21.9625(a)(1), if an
award is the first award of educational assistance for the program of
education the eligible person is pursuing under the Post-9/11 GI Bill,
the commencing date of the award of educational assistance is the
latest of: (a) August 1, 2009, the earliest possible beginning date as
provided in Sec. 21.9625; (b) the date the educational institution
certifies; (c) one year before the date of claim as determined by Sec.
21.1029(b); (d) the effective date of the approval of the course, or
(e) one year before the date VA receives the approval notice.
For example, if a National Guard member applied for chapter 33
benefits on October 12, 2011, and it is determined that the member was
eligible for educational assistance beginning August 1, 2009, under
current Sec. 21.9625(a)(1)(B) benefits could not be paid for any
period earlier than October 12, 2010, i.e., one year prior to the date
of application. Although the National Guard member was eligible for
benefits from August 1, 2009, because this member did not apply until
October 12, 2011, under our current regulations the furthest back that
VA could pay benefits is October 12, 2010. This is problematic because
National Guard members would not have applied for benefits until after
January 4, 2011, when they first became eligible for benefits under the
change in law. However, if National Guard members applied for benefits
on January 4, 2011, because of current law they would only be paid from
January 4, 2010, the latest of the specified beginning dates, instead
of August 1, 2009, the earliest possible beginning date, thereby losing
out on retroactive benefits. To remedy this problem, we propose to add
Sec. 21.9626(n) to provide special rules for determining the beginning
dates of awards for National Guard members made eligible by Public Law
111-377. With these changes VA could pay retroactive benefits to newly
eligible National Guard members beyond the one-year limit required by
current regulations.
Additionally, while the statute is silent as to a time limit for
retroactive claims, for the reasons discussed below,
[[Page 33673]]
VA is proposing to adopt a time limit for newly eligible National Guard
members to file a claim for retroactive benefits. Our concern is that
without a limited window for claims for retroactive payment, we will
continue to see claims far into the future, which could result in
increased unforeseen burdens and costs for VA. Therefore, in Sec.
21.9626(n), VA proposes to specify that the special beginning-date
rules are only available to a newly eligible National Guard member if
he or she applied for retroactive benefits by September 30, 2012 (i.e.,
one year from the first day on which VA was statutorily allowed to make
payments to the National Guard members for the expanded benefits).
After the expiration of the one-year period, the beginning-date rules
under Sec. 21.9625 for determining a beginning date would apply.
Under 38 U.S.C. 5110(g) and 5113(a), benefits based on a new,
liberalizing statute generally may be paid for periods no earlier than
one year before the date of application therefor. The purpose of that
one-year retroactive period is to provide claimants a reasonable grace
period in which to learn of the new law and file their claims for the
newly authorized benefit. See McCay v. Brown, 9 Vet. App. 183, 187-88
(1996). As noted above, however, imposing a one-year retroactive limit
to benefits authorized by section 101(a)(1) of Public Law 111-377 would
defeat the clear purpose of section 101(a)(1) and (d)(1) to authorize
payments for periods extending back to August 1, 2009, more than a year
before the statute's enactment. We believe proposed Sec. 21.9626(n)
appropriately gives effect to all applicable statutes by providing a
one-year grace period for applying for the new benefits and ensuring
that those who applied within that period potentially may receive the
full extent of retroactive benefits authorized by section 101(a)(1) and
(d)(1).
Section 101(a)(2) of Public Law 111-377 amended 38 U.S.C.
3301(2)(A) by adding ``One Station Unit Training'' to the definition of
``entry level and skill training'' for members of the Army (effective
January 4, 2011), and section 101(a)(3) amended 38 U.S.C. 3301(2)(E) by
adding ``Skill Training (or so-called ``A'' School)'' to the definition
of ``entry level and skill training'' for members of the Coast Guard
(effective January 4, 2011, and applicable to individuals entering
service on or after that date). We propose to add ``One Station Unit
Training'' for Army members and ``Skill Training (or so-called ``A''
School)'' for Coast Guard members to the definition of ``entry level
and skill training'' in 38 CFR 21.9505 (definitions applicable prior to
August 1, 2011, to the administration of the chapter 33 program). We
propose to note that the inclusion of ``One Station Unit Training'' for
Army members and ``Skill Training (or so-called ``A'' School)'' for
Coast Guard members in the definition of ``entry level and skill
training'' applies effective January 4, 2011.
Section 101(b) of Public Law 111-377 amended 38 U.S.C. 3311(c)(4)
(effective January 4, 2011, with respect to discharges or releases that
occur on or after that date) to clarify that a discharge or release
from active duty for a preexisting, non-service-connected condition,
hardship, or a condition that interfered with duty must be honorable
for the individual to establish eligibility for educational assistance.
We propose to include this honorable discharge requirement in Sec.
21.9520(a)(5). Additionally, in Sec. 21.9520(a) we propose to amend
the chapter 33 eligibility criteria to clarify the need for an
honorable discharge with respect to these types of discharges on or
after January 4, 2011.
Section 101(c) of Public Law 111-377 amended 38 U.S.C. 3311(d)(2)
to prohibit service pursuant to an agreement in connection with
attendance at the Coast Guard Academy from being considered active duty
for purposes of establishing entitlement to educational assistance
under chapter 33 (effective January 4, 2011, with respect to
individuals entering into agreements on or after that date). We propose
to implement this change in the definition of ``active duty'' in 38 CFR
21.9505 and 21.9506, specifically in paragraph (3)(ii)(B)(2) of the
definition of ``active duty'' in both sections. Although section 101(c)
referred to 14 U.S.C. 182 as the statute governing Coast Guard Academy
service agreements, Congress later replaced section 182 with 14 U.S.C.
1925. We propose to refer to the current statute.
d. Section 102--Amounts of Assistance for Programs of Education Leading
to a Degree Pursued at Public, Non-Public, and Foreign Institutions of
Higher Learning (IHL)
Section 102(a) of Public Law 111-377 amended 38 U.S.C. 3313(c) to
specify the amount of assistance to be paid for pursuit of a program of
education leading to a degree on more than a half-time basis at a
public, non-public, or foreign IHL. The amended law provides that,
effective August 1, 2011, the amount of educational assistance for
payment of tuition and fees for an individual's pursuit of an approved
program of education leading to a degree on more than a half-time basis
at a public IHL is the actual net cost for in-State tuition and fees
assessed by the institution after the application of any waiver of, or
reduction in, tuition and fees and any scholarship, or other Federal,
State, institutional, or employer-based aid or assistance (other than
loans and any funds provided under section 401(b) of the Higher
Education Act of 1965) that is provided directly to the institution and
specifically designated for the sole purpose of defraying tuition and
fees. For pursuit of an approved program of education leading to a
degree on more than a half-time basis at a non-public or foreign IHL,
effective August 1, 2011, the amount of educational assistance for
tuition and fees is the lesser of (i) the actual net cost for tuition
and fees assessed by the institution after application of the same
waivers, reductions, scholarships, and assistance described above and
(ii) $17,500 (the cap) for the academic year beginning on August 1,
2011, or the cap, as adjusted annually, for any subsequent academic
year beginning on August 1 (the amount of the cap will be increased for
each subsequent academic year by the percentage increase equal to the
most recent percentage increase determined under 38 U.S.C. 3015(h) for
the Montgomery GI Bill-Active Duty program (chapter 30)).
We would implement these changes effective August 1, 2011, in a new
section, specifically 38 CFR 21.9641(b)(1) and (b)(2). The lump sum
payment of educational assistance for tuition and fees is issued
directly to the IHL for the entire term, quarter, or semester that the
individual is pursuing the program of education, as provided in 38 CFR
21.9640(b)(1)(i). Rather than defining terms such as ``Net cost'' and
``Non-public institution'' in Sec. 21.9641, we propose to define those
terms in Sec. 21.9506, because they would also be applicable to other
provisions that are effective after July 31, 2011.
In Sec. 21.9506, we propose to define ``net cost'' based on how it
is described in Public Law 111-377, section 102, which specifies ``net
cost'' as tuition and fees ``after the application of any . . .
[w]aiver of, or reduction in, tuition and fees'' and any
``[s]cholarship, or other Federal, State, institutional, or employer-
based aid or assistance (other than loans and any funds provided under
section 401(b) of the Higher Education Act of 1965).'' We propose to
also define ``non-public institution'' in Sec. 21.9506, because we use
this term often throughout the proposed regulations in this rulemaking
to explain the different set of provisions
[[Page 33674]]
which apply to private institutions. We propose to define ``Non-public
institution'' as a proprietary institution, as that term is defined in
38 CFR 21.4200(z), which refers to an educational institution that is
not a public educational institution, that is located in a State, and
that is legally authorized to offer a program of education in the State
where the educational institution is physically located. Additionally,
because section 3313(c), as amended by section 102(a) of Public Law
111-377, requires VA to pay the net cost for tuition and fees rather
than established charges, we would use the phrase ``tuition and fees''
throughout the proposed rules.
Section 102(b) of Public Law 111-377 amended 38 U.S.C.
3313(c)(1)(B) effective August 1, 2011, to provide for rates of monthly
housing stipends (or the ``monthly housing allowance'') under the Post-
9/11 GI Bill that are proportional to an individual's rate of pursuit
of a program of education, as long as the rate of pursuit is more than
half-time. For individuals pursuing a program of education leading to a
degree (or program of education at a non-college degree institution, as
provided by the changes in section 105(b)(3) of Pub. L. 111-377) on
more than a half-time basis, under the amended law, the monthly housing
stipend must be determined by multiplying the applicable amount of the
monthly basic allowance for housing payable under 37 U.S.C. 403 (for a
member with dependents in pay grade E-5 residing in the military
housing area that encompasses all or the majority portion of the ZIP
code area in which is located the IHL at which the individual is
enrolled) by the lesser of 1.0 or the number of course hours borne by
the individual in pursuit of the program of education, divided by the
minimum number of course hours required for full-time pursuit of the
program of education, rounded to the nearest tenth. For example, if a
student is enrolled in 18 course hours and the minimum number of course
hours required for full-time pursuit of the program of education is 12
course hours, the applicable multiplier would be 1.0. If the student is
enrolled in 9 course hours under the same full-time criteria in this
example, the applicable multiplier would be 0.80 (0.75 rounded to the
nearest tenth). We note that section 3313(c)(1)(B)(i)(I) was further
amended by Public Law 115-48, section 107, so that the monthly housing
allowance calculation would use the ZIP code area in which is located
the campus of the IHL where the individual physically participates in a
majority of classes rather than the ZIP code area in which is located
the IHL at which the individual is enrolled. In Sec.
21.9641(c)(1)(ii), we refer to ``ZIP code'' or ``location code.''
Section 5003 of Public Law 110-252 authorized VA to pay a monthly
housing allowance equal to the monthly amount of the Basic Allowance
for Housing (BAH) payable under 37 U.S.C. 403 for a member with
dependents in pay grade E-5 residing in the military housing area that
encompasses all or the majority portion of the ZIP code area in which
is located the institution of higher education at which the individual
is enrolled. Public Law 110-252 did not address payment of the monthly
housing allowance in areas for which there is no ZIP code. For areas
without a ZIP code and U.S. Territories, the Department of Defense
(DoD) pays an Overseas Housing Allowance (OHA) based on a location
code. Therefore, for those individuals attending residence courses at
locations that are not identified with a ZIP code, but that DoD
identifies with a locality code, as provided in proposed Sec.
21.9641(c)(1)(ii), we would pay the monthly housing stipend at the same
rate as the amount of the basic allowance for housing payable under 37
U.S.C. 403 for a member with dependents in pay grade E-5 residing
within the locality code identified by DoD. This payment change would
be effective on August 1, 2011, which is the date that VA changed its
interpretation of the statute.
We note that, under section 105(b) of Public Law 111-377, as
discussed below, for individuals pursuing a certificate or other non-
college degree at an educational institution other than an IHL on more
than a half-time basis, the monthly housing stipends are calculated
similar to the monthly housing stipends for individuals pursuing a
program of education leading to a degree, discussed above, and are
limited to the same proportionate percentage applicable to the monthly
amounts payable to an individual under section 3313(c)(2) through (7),
which is based on the aggregate amount of active duty service
completed.
For individuals pursuing residence training at a foreign IHL on
more than a half-time basis, under section 3313(c)(1)(B)(ii), the
monthly housing stipend must be determined by multiplying the national
average of the monthly amount of the basic allowance for housing
payable under 37 U.S.C. 403 for a member with dependents in pay grade
E-5 by the lesser of 1.0 or the number of course hours borne by the
individual in pursuit of the program of education, divided by the
minimum number of course hours required for full-time pursuit of the
program of education, rounded to the nearest tenth.
For individuals pursuing training solely via distance learning on
more than a half-time basis, under 38 U.S.C. 3313(c)(1)(B)(iii),
effective October 1, 2011 (see section 102(c)(2) of Pub. L. 111-377),
the monthly housing stipend is 50 percent of the rate paid to
individuals pursuing residence training at a foreign IHL on more than a
half-time basis. However, for individuals pursuing hybrid training that
combines distance learning with residence training, effective October
1, 2011, the monthly housing stipend would be the residence training
housing stipend without regard to the percentage of the training that
is conducted through distance learning as compared to residence
training (i.e., as long as he/she is enrolled in at least one residence
training class, the individual will receive a monthly housing allowance
as if all classes in the term are residence training classes. The
statute does not specifically define how VA should pay monthly housing
for hybrid training. Because hybrid training contains at least some
element of residential training, VA proposes to consider hybrid
training to be in-residence for the purposes of determining the
appropriate monthly housing stipend rate. This is necessary because 38
U.S.C. 3313(c)(1)(B)(iii) merely distinguishes between training that is
pursued solely through distance learning and training that is not
pursued solely through distance learning. As a result of this
requirement, an individual pursuing training through a hybrid course is
not pursuing training solely through distance learning and, therefore,
is not subject to a housing stipend restricted to 50% of the housing
stipend payable to an individual pursuing a program of education at a
foreign IHL on more than a half-time basis.
Section 3313(c)(1)(B) requires payment of the monthly housing
stipend in a certain amount equivalent to the DoD amount specified in
37 U.S.C. 403. Thus, when the DoD rate decreases under section
403(b)(3), the VA rate should similarly decrease. However, when
specifying the amount of the monthly housing stipend, section
3313(c)(1)(B) refers to the monthly amount of the basic allowance for
housing payable under section 403 without specifying the particular
paragraph in section 403 on which to rely. While section 403(b)(3), in
particular, specifies the amount of the monthly housing stipend DoD
pays servicemembers, and other provisions in
[[Page 33675]]
section 403(b) generally pertain to DoD's establishment of housing
rates, section 403(b)(6) establishes an exception to those general
rates applicable to specific servicemembers. The lack of specificity in
section 3313(c)(1)(B) with respect to a particular paragraph in section
403 on which to rely when setting the VA monthly housing rate reflects
some ambiguity that we believe is best resolved by applying ``rate
protection'' to chapter 33 just as DoD ``grandfathers'' the basic
allowance for housing for servicemembers who retain uninterrupted
eligibility under section 403(b)(6). Our longstanding interpretation of
section 3313(c)(1)(B) has been that all provisions of section 403 are
potentially applicable in determining the chapter 33 monthly housing
stipend for VA claimants. And we view section 403(b)(6) as a component
of the housing-rate structure incorporated by reference in section
3313(c)(1)(B). Our interpretation of section 3313(c)(1)(B) to apply
rate protection would result in the best outcome for veterans because
it would allow them to retain a higher rate of the monthly housing
stipend. Furthermore, we believe it would be unfair to penalize a
veteran student by lowering the monthly housing stipend as a result of
a change that was not initiated by the student and was beyond his or
her control. Thus, we propose to implement rate protection in Sec.
21.9641(c)(8) for chapter 33 beneficiaries if they previously received
the monthly housing stipend for the same type of training at the same
educational institution and if they have not had more than a six-month
break in training at the same educational institution.
We propose to implement these new monthly housing stipend payment
rates in new Sec. 21.9641(c) because most changes are effective on
August 1, 2011. In Sec. 21.9641(c), we propose to specify the monthly
housing allowance payable and the respective effective dates of
payments for individuals pursuing programs of education at domestic and
foreign IHLs and non-college degree institutions and for individuals
pursuing on-the-job or apprenticeship training. However, given that the
change to the housing amount for distance learning did not take effect
until October 1, 2011, we propose to specify the different effective
date for pursuit of training solely via distance learning in paragraph
(c)(4), by indicating that, after September 30, 2011, an individual who
is not on active duty and who is pursuing a program of education solely
through distance learning at a rate of pursuit of greater than 50
percent, can receive a monthly housing allowance for each month (or
prorated amount for a partial month) of training during each term,
quarter, or semester, equal to 50 percent of the housing stipend
payable to an individual pursuing a program of education at a foreign
IHL on more than a half-time basis.
e. Section 103--Amounts of Assistance for Programs of Education Leading
to a Degree Pursued on Active Duty
Section 103 of Public Law 111-377 amended 38 U.S.C. 3313(e) to
provide that, effective on or after March 5, 2011, the amount of
educational assistance payable for pursuit of a program of education
leading to a degree on more than a half-time basis at a public IHL by
an individual while the individual is serving on active duty in the
Armed Forces is the lesser of: (1) the actual net cost for in-State
tuition and fees assessed by the institution after the application of
any waiver of, or reduction in, tuition and fees, and any scholarship,
or other Federal, State, institutional, or employer-based aid or
assistance (other than loans and any funds provided under section
401(b) of the Higher Education Act of 1965) that is provided directly
to the institution and specifically designated for the sole purpose of
defraying tuition and fees, as stated in 38 U.S.C. 3313(e)(2)(A)(i), or
(2) that portion of the established charges not covered by military
tuition assistance under 10 U.S.C. 2007(a) or (b) for which the
individual has informed VA that he or she wishes to receive payment
(tuition assistance Top-Up), as stated in 38 U.S.C. 3313(e)(2)(A)(iii).
For pursuit of a program of education leading to a degree on more than
a half-time basis at a non-public or foreign IHL by an individual while
the individual is serving on active duty, the amount of educational
assistance, as provided in 38 U.S.C. 3313(e)(2)(A)(ii) and (iii), is
the lesser of: (1) the actual net cost for tuition and fees assessed by
the institution after application of the same waivers, reductions,
scholarships, and assistance described above, (2) $17,500 (the cap) for
the academic year beginning on August 1, 2011, or the cap, as adjusted
annually, for any subsequent academic year beginning on August 1 (the
amount of the cap will be increased for each subsequent academic year
by the percentage increase equal to the most recent percentage increase
determined under 38 U.S.C. 3015(h) for the Montgomery GI Bill-Active
Duty program (chapter 30)), or (3) tuition assistance Top-Up. These
rates specified in amended section 3313(e) are the same as the rates
for similarly situated individuals not serving on active duty. Although
tuition assistance Top-Up is not taken into account when determining
the rates for individuals not serving on active duty, consideration of
tuition assistance Top-Up for individuals serving on active duty does
not change the calculation. Because Federal aid (which includes
military tuition assistance) is first deducted in the calculation of
the net cost of tuition and fees, the amount of tuition assistance Top-
Up (the institution's charges not covered by military tuition
assistance) will always be the same as the institution's actual net
cost for tuition and fees, so the lesser of these two amounts is the
same amount (actual net cost). Therefore, we propose to state in Sec.
21.9641(b)(1) and (2) that we would pay the same rate (either actual
net cost or a capped rate) to individuals who are serving on active
duty and individuals who are not serving on active duty for pursuit of
programs of education leading to a degree at public or non-public or
foreign IHLs.
Section 103(a)(2)(E) of Public Law 111-377 added section
3313(e)(2)(C), which requires consideration of an individual
Servicemember's length of time in service on active duty when
determining the amount of educational assistance payable to an
individual serving on active duty for pursuit of a program of education
at a public, non-public, or foreign IHL. Under section 3313(e)(2)(C),
the amounts payable are limited to a proportionate percentage based on
length of time in service, as specified in section 3313(c)(2) through
(7), of the assistance that would otherwise be payable if a
Servicemember had completed an aggregate of 36 months of active duty.
For example, if a Servicemember served an aggregate of at least 12
months, but less than 18 months, the applicable percentage to be
applied, as specified in section 3313(c)(5), is 60 percent.
In addition, section 103(a)(2)(E) adds section 3313(e)(2)(B), which
provides for a lump sum for the first month of each quarter, semester,
or term, as applicable, of the program of education pursued by an
individual on active duty for books, supplies, equipment, and other
educational costs in an amount equal to $1,000, multiplied by the
fraction of an academic year the quarter, semester or term represents
and the applicable percentage as specified in section 3313(c)(2)
through (7), depending on the individual's length of service.
We propose to implement the new provisions relating to payment of
educational assistance for programs pursued while an individual is on
active duty in new Sec. 21.9640(d) and
[[Page 33676]]
Sec. 21.9641(a), (b), (c)(6) and (d) to make clear the particular
effective dates that apply to individuals pursuing programs while on
active duty. In Sec. 21.9640(d)(1), we propose to specify the amounts
payable for individuals on active duty for programs of education
beginning on August 1, 2009, and ending on March 4, 2011, before the
section 103 changes took effect. Consistent with current Sec.
21.9640(d), we propose to provide that the amount payable will be the
lowest of (1) the established charges that similarly circumstanced
nonveterans would be required to pay who are enrolled in the
individual's program of education; (2) that portion of the established
charges not covered by military tuition assistance under 10 U.S.C.
2007(a) or (b) for which the individual has informed VA that he or she
wishes to receive payment; (3) an amount that is the lesser amount of
(1) or (2) above, divided by the number of days in the individual's
quarter, semester, or term to determine the individual's daily rate,
which is then multiplied by the individual's remaining months and days
of entitlement to educational assistance.
We propose to implement the section 103 requirements, requiring,
beginning March 5, 2011, changes in the amount of educational
assistance payable for pursuit of programs of education leading to a
degree on more than a half-time basis at public, non-public and foreign
IHLs in Sec. 21.9640(d)(2). We propose to specify that the amounts
payable for individuals on active duty pursuing a program of education
leading to a degree on a more than half-time basis beginning after
March 4, 2011, but before August 1, 2011, would be based on the net
cost for in-State tuition and fees. We propose to implement section
103(a)(2)(E) relating to the book stipend for the pursuit of an
educational program while on active duty specifically in Sec.
21.9641(d)(1)(i)(B).
In Sec. 21.9641(a)(1), we propose to provide the percentages of
the maximum amounts payable for the pursuit of approved program of
education under chapter 33, which is based on the aggregate active duty
service after September 10, 2001, for training that begins after July
31, 2011. For clarity, we would include a column with the number of
days of the aggregate active duty service upon which the applicable
percentages of the maximum payment amounts are based. We propose to
also add this column with the number of days to Sec. 21.9640(a)(1). In
addition, we propose to clarify footnote 3 in Sec. 21.9640(a)(1)
concerning the requirement in 38 U.S.C. 3311(e) that we pay at the 70
percent level if an individual meets the service requirements at both
the 80 and 70 percent level and add a reference to section 3311(e), the
authority for this rule. We propose to include the same footnote in
Sec. 21.9641(a)(1).
In Sec. 21.9641(b)(1), we propose to state that for individuals,
whether on active duty or not on active duty, pursuing an approved
program of education leading to a degree at a public institution of
higher learning, effective after July 31, 2011, the lump sum payment of
educational assistance is the applicable percentage of the net cost for
in-state tuition and fees assessed by the institution after the
application of any waiver of, or reduction in, tuition and fees and any
scholarship, or other Federal, State, institutional, or employer-based
aid or assistance (other than loans and any funds provided under
section 401(b) of the Higher Education Act of 1965) that is provided
directly to the institution and specifically designated for the sole
purpose of defraying tuition and fees.
In 38 CFR 21.9641(b)(2), we propose to state that for individuals,
whether on active duty or not on active duty, pursuing an approved
program of education leading to a degree at a non-public or foreign
institution of higher learning, effective after July 31, 2011, the lump
sum payment of educational assistance is the lesser of the actual net
cost for tuition and fees assessed by the institution after application
of the same waivers and reductions described above; $17,500 (the cap)
for the academic year beginning on August 1, 2011; or the cap, as
adjusted annually, for any subsequent academic year beginning on August
1 (the amount of the cap will be increased for each subsequent academic
year by the percentage increase equal to the most recent percentage
increase determined under 38 U.S.C. 3015(h) for the Montgomery GI Bill-
Active Duty program (chapter 30)). Under 38 U.S.C. 3313(h), VA is
required to pay the amount of educational assistance for tuition and
fees directly to the educational institution. We propose to implement
this requirement in Sec. 21.9641(b)(1) and (2) where we state that the
lump sum payment of educational assistance for tuition and fees is
issued directly to the IHL for the entire term, quarter, or semester
that the individual is pursuing the program of education.
In Sec. 21.9641(c)(6), we propose to state that no monthly housing
allowance is payable for programs of education pursued for vocational
flight training at institutions other than IHLs, pursued exclusively by
correspondence, pursued on a half-time basis or less, and pursued while
on active duty. This would reflect that the statutory provisions
applicable to those programs, including 38 U.S.C. 3313(e) with regard
to programs pursued while on active duty, do not authorize a monthly
housing allowance.
f. Section 104--Educational Assistance for Programs of Education
Pursued on a Half-Time Basis or Less
Section 104 of Public Law 111-377 amended 38 U.S.C. 3313(f),
effective August 1, 2011, to add a new provision for determining the
amounts of educational assistance payable to individuals enrolled in
training on a half-time basis or less and to provide that the new
provision is applicable to all individuals, whether for educational
pursuit while on active duty, pursuit of programs of education leading
to degrees, or pursuit of programs of education other than programs
leading to degrees (non-degree programs). The new provision provides
that the amount of assistance payable is the lesser of: (1) the actual
net cost for in-State tuition and fees assessed by the institution
after the application of any waiver of, or reduction in, tuition and
fees and any scholarship, or other Federal, State, institutional, or
employer-based aid or assistance (other than loans and any funds
provided under section 401(b) of the Higher Education Act of 1965) that
is provided directly to the institution and specifically designated for
the sole purpose of defraying tuition and fees; or (2) the amount of
such assistance after application of the proportionate-reduction
provisions found in section 3313(c)(2) through (7).
We propose to implement section 104 in Sec. 21.9641(b)(1) and (2),
which would be applicable beginning August 1, 2011. Because section 104
requires payment for pursuit of programs of education leading to
degrees and non-degree programs on a half-time basis or less in the
same amount we are required to pay pursuant to section 102 for pursuit
of programs of education leading to a degree on more than a half-time
basis at a public, non-public, or foreign IHL, Sec. 21.9641(b)(1) and
(2) would be applicable to payments to individuals training in pursuit
of programs of education leading to degress at less than half time as
well as individuals training at more than half time. Payments to
individuals training in pursuit of non-degree programs at less than
half time are also covered in Sec. 21.9641(b)(1) and (2), as explained
below discussing the section 105 amendments.
With regard to active duty members, although the net cost for in-
State tuition and fees would be payable beginning after March 4, 2011,
to active duty
[[Page 33677]]
members pursuing a program of education leading to a degree on a more
than half-time basis pursuant to section 103, we would not pay active
duty members pursuing a program of education on a half-time basis or
less and active duty members pursuing a non-degree program this new net
cost rate until August 1, 2011. Until August 1, 2011, we would continue
to pay active duty members pursuing a program of education on a half-
time basis or less and active duty members pursuing a non-degree
program the rate we paid all active duty members prior to the change in
law on August 1, 2011, when section 104 requires payment of the new
rate for active duty members pursuing a program of education on a half-
time basis or less and active duty members pursuing a non-degree
program. We propose to specify the continuance of the rate we paid all
active duty members for active duty members pursuing a program of
education leading to a degree on a half-time basis or less for the
period from March 5, 2011, through August 1, 2011, in Sec.
21.9640(d)(3). We propose to specify the continuance of the rate we
paid all active duty members for active duty members pursuing a non-
degree program for the period from March 5, 2011 through August 1,
2011, in Sec. 21.9640(d)(4).
g. Section 105--Educational Assistance for Programs of Education Other
Than Programs of Education Leading to a Degree
Section 105 of Public Law 111-377 amended section 3313(b) to remove
language that limited the provision of educational assistance under the
Post-9/11 GI Bill to programs of education pursued at IHLs. This change
allows pursuit of non-college degree programs ``approved for purposes
of chapter 30.'' See 38 U.S.C. 3313(b). Section 105 also added a new 38
U.S.C. 3313(g) to allow payment of educational assistance for approved
programs offered at educational institutions other than IHLs. In
Sec. Sec. 21.9715, 21.9735, 21.9740, 21.9750, and 21.9765, we propose
to amend the existing regulations to authorize pursuit of non-college
degree programs at non-IHLs and remove language that limits pursuit of
non-college degree programs to only those offered by an IHL. In these
sections, we propose to remove the term ``institution of higher
learning'' and add, in its place, the term ``educational institution.''
Prior to the passage of Public Law 111-377, students pursuing non-
college degree programs at IHLs (on a greater-than-half-time basis)
were entitled to payment of the established charges for tuition and
fees (not to exceed the maximum amount of the established charges for
in-State students at public institutions), a monthly housing stipend,
and a books and supplies stipend. Individuals who were entitled to the
100-percent level of such payments were also eligible to participate in
the Yellow Ribbon program if the schools they attended participated in
this program. With regard to the payment of educational assistance,
prior to the passage of Public Law 111-377, there was no distinction
between an individual pursuing a degree program at an IHL and an
individual pursuing a non-college degree program at an IHL.
Neither section 3313(c) nor section 3313(g) addresses the level of
payment of educational assistance for pursuit of a non-college degree
program at an IHL on a greater than half-time basis. In general, we
view the purpose of the amendments made by Public Law 111-377 as
expanding the universe of programs for which educational assistance may
be paid under the Post-9/11 GI Bill (as it did by permitting payment
for on-the-job and flight training programs at non-IHL schools, for
which payment was previously not permitted). Therefore, based on our
interpretation that Public Law 111-377 is meant to expand the universe
of programs available, we construe section 105 in a way that does not
stop previously authorized payment of educational assistance to
individuals who may have already made substantial investments, in terms
of time and effort, in pursuit of non-college degrees at IHLs. Also,
and again based on our view of Public Law 111-377 as expanding the
availability of educational assistance, we construe section 105 in a
manner that does not limit a student's choice of the type of school he
or she may wish to attend. Therefore, we conclude that VA retains the
authority to pay educational assistance for the pursuit of non-college
degree programs at IHLs in the same way we had been paying educational
assistance for the pursuit of non-college degree programs at IHLs prior
to the passage of Public Law 111-377. Because we had been paying
educational assistance for the pursuit of non-college degree programs
at IHLs in the same manner as we had been paying educational assistance
for the pursuit of degree programs at IHLs prior to the passage of
Public Law 111-377, we propose to continue to pay individuals pursuing
a non-college degree program at an IHL in the same manner as we pay
individuals pursuing a degree program at an IHL. Therefore, Sec.
21.9641(b)(1) and (b)(2), specifying the amounts of tuition and fees
payable beginning August 1, 2011, would be applicable to payments for
pursuit of all programs of education, whether degree or non-college
degree.
New 38 U.S.C. 3313(g)(3)(A), as added by section 105 of Public Law
111-377, provides, effective October 1, 2011, that the amount of
educational assistance to be paid to an individual enrolled in a
certificate or other non-college degree program at an educational
institution other than an IHL on more than a half-time basis is the
lesser of the actual net cost of in-State tuition and fees (less any
waiver of, or reduction in, tuition and fees and any amount provided
directly to the institution on behalf of an eligible student for the
sole purpose of defraying tuition and fees), or $17,500 (the cap) for
the academic year beginning on August 1, 2011 (or the cap as adjusted
annually for any subsequent academic year beginning on August 1). We
propose to implement this payment requirement in Sec. 21.9641(b)(3) by
providing that VA will make a lump sum payment directly to the
institution in an amount of educational assistance payable for an
individual enrolled at more than half-time, in a certificate or non-
college degree program at an educational institution other than an IHL.
New section 3313(g)(3)(A) also provides, effective October 1, 2011,
that individuals enrolled in a certificate or other non-college degree
program at an educational institution on more than a half-time basis
are eligible for a monthly housing stipend and a monthly stipend for
books, supplies, and equipment. The amount of the monthly housing
stipend is calculated in the same fashion as it is for individuals
pursuing programs of education leading to a degree at IHLs. We propose
to implement this payment requirement in Sec. 21.9641(c)(3). The
amount of the monthly stipend for books, supplies, and equipment is $83
each month, prorated for a partial month. We propose to implement this
payment requirement in Sec. 21.9641(d)(2). This amount for books,
supplies, and equipment is further limited to a proportionate
percentage applicable to the monthly amounts payable to an individual
under section 3313(c)(2) through (7), which is based on the aggregate
amount of active duty service completed. We proposed to implement this
payment requirement in generally applicable Sec. 21.9641(a), which
provides the applicable percentage of the maximum amounts payable.
Section 3313(g)(3)(B), as added by Public Law 111-377, section
105(b), provides for a monthly housing stipend and a stipend for books,
supplies and
[[Page 33678]]
equipment for individuals pursuing a full-time program of
apprenticeship or other on-the-job training. Paragraph (B) requires,
effective October 1, 2011, the amount of the monthly housing stipend to
be 100 percent of the applicable amount of the monthly basic allowance
for housing payable under 37 U.S.C. 403 for each month of the first
six-month period of pursuit of the program, 80 percent of the
applicable amount of the monthly basic allowance for housing payable
under 37 U.S.C. 403 for each month of the second six-month period of
pursuit, 60 percent of the applicable amount of the monthly basic
allowance for housing payable under 37 U.S.C. 403 for each month of the
third six-month period, 40 percent of the applicable amount of the
monthly basic allowance for housing payable under 37 U.S.C. 403 for
each month of the fourth six-month period, and 20 percent of the
applicable amount of the monthly basic allowance for housing payable
under 37 U.S.C. 403 for each month of pursuit of the program for any
subsequent months of training. Paragraph (B) requires, effective
October 1, 2011, the amount of the monthly stipend for books, supplies,
and equipment to be $83 for each month of training, or a prorated
amount for a partial month of training.
The amounts of the monthly housing stipend and stipend for books,
supplies, and equipment for individuals entitled to educational
assistance by reason of section 3311(b)(3) through (8) must be further
limited to the same proportionate percentage applicable to the monthly
amounts payable to an individual under section 3313(c)(2) through (7),
which is based on the aggregate amount of active duty service
completed. The amounts of these monthly stipends must be reduced even
further if a individual fails to complete 120 hours of training in any
month. Pursuant to new 38 U.S.C. 3313(g)(3)(B)(iv), the reduced amount
must be determined by multiplying the otherwise payable amount for that
month by the number of hours worked rounded to the nearest 8 hours, and
then by dividing that amount by 120, and lastly rounding that final
amount to the nearest hundred. For example, with regard to the monthly
housing stipend, if a student completes 96 hours of training for a
month in which he or she is eligible to otherwise receive a $1,000
monthly housing stipend, the student must receive $800 (which is $1,000
multiplied by 96 hours, and divided by 120). We propose to implement
the monthly housing allowance payment requirement for individuals
pursuing a full-time program of apprenticeship or other on-the-job
training in Sec. 21.9641(c)(5), and the book stipend payment
requirement in Sec. 21.9641(d)(2).
New 38 U.S.C. 3313(g) allows payment of educational assistance for
approved programs other than programs leading to a degree offered at
educational institutions other than IHLs, which would include
apprenticeships and on-the-job training programs. Therefore, we propose
to provide in newly added Sec. 21.9626(c), the beginning dates of an
award or increased award of educational assistance for approved
programs, including apprenticeships and on-the-job training programs,
but not for a licensing or certification test, a national test for
admission, or a national test for credit.
Section 3313(g)(3)(C) and (D), as added by Public Law 111-377,
section 105(b), provides, effective October 1, 2011, that the amount of
educational assistance to be paid to an individual enrolled in a
program of flight training or of training pursued exclusively by
correspondence, respectively, at either an IHL or an institution other
than an IHL on more than a half-time basis is the lesser of the actual
net cost of tuition (in-State tuition for flight training) and fees
(less any waiver of, or reduction in, tuition and fees and any amount
provided directly to the institution on behalf of an eligible student
for the sole purpose of defraying tuition and fees) or $10,000 (the
cap) for flight training, or $8,500 (the cap) for training pursued
exclusively by correspondence, for the academic year beginning August
1, 2011 (or the respective cap as adjusted annually for any subsequent
academic year beginning on August 1). This amount is further limited to
the same proportionate percentage applicable to the monthly amounts
payable to an individual under section 3313(c)(2) through (7), which is
based on the aggregate amount of active duty service completed.
We propose to specify in new Sec. 21.9641(b)(5) that, effective
after September 30, 2011, a lump sum of this amount of assistance would
be paid directly to the institution on behalf of the individual
enrolled in a flight training program at any institution, regardless of
whether it is an IHL. We propose to require that an individual complete
a certification for training before VA would issue payment for the
flight training because section 3313(g)(4)(C)(ii) adds this
requirement. We propose to specify in new Sec. 21.9641(b)(6) that,
effective after September 30, 2011, assistance would be paid quarterly
on a pro rata basis for lessons completed directly to the educational
institution on behalf of the individual enrolled in a program of
training pursued exclusively by correspondence at any institution,
regardless of whether it is an IHL, since this frequency of payment is
required by section 3313(g)(4)(D).
Section 3313(g)(5) requires that we charge entitlement for
individuals pursuing non-college degee programs at institutions other
than IHLs based on the amount paid as a percentage of the otherwise
applicable annual rate. The rules regarding the charge to entitlement
for individuals pursuing certificate or other non-degree programs at
educational institutions would be located in Sec. 21.9561(b). In Sec.
21.9561(b)(1), we propose to provide that when VA pays tuition and fees
to the non-college degree institution, the individual would be charged
entitlement equal to the numbers of months and the corresponding
fraction measured in days, determined by dividing the total amount paid
by the amount equal to 1/12th of the applicable amount for the academic
year, which is $17,500 (the cap) for the academic year beginning on
August 1, 2011 (or the cap as adjusted annually for any subsequent
academic year beginning on August 1). In Sec. 21.9561(b)(2), we
propose to provide that for any period VA does not pay net costs to the
non-college degree institution, but pays a monthly housing allowance or
an increase (``kicker'') to the individual, that individual will be
charged a percentage of a day equal to the individual's rate of pursuit
for each day of the certified enrollment period that the individual
received a monthly housing allowance or an increase (``kicker''). In
Sec. 21.9561(b)(3), we propose to provide that for any period VA does
not pay net costs to the non-college degree institution, or a monthly
housing allowance or an increase (``kicker'') to the individual, but
makes a lump sum payment to the individual for books, supplies,
equipment, and other educational costs, VA will make an entitlement
charge of 1 day for every $41.67 paid, with any remaining amount
rounded to the nearest amount evenly divisible by $41.67.
Although section 3313(g)(5) sets out the entitlement charges for
individuals pursuing non-college degree programs at institutions other
than IHLs, it omits the entitlement charges for apprenticeships and on-
the-job training, flight training, and correspondence training. In the
absence of guidance on how to charge entitlement for individuals
pursuing flight and correspondence training, we propose to apply the
same rules provided in section 3313(g)(5) because tuition is similarly
charged for individuals pursuing certificate or other
[[Page 33679]]
non-degree programs at institutions other than IHLs and individuals
pursuing flight and correspondence training. Specifically, in Sec.
21.9561(d) and Sec. 21.9561(e), we propose to provide that an
individual will be charged entitlement equal to the number of months,
and fraction thereof measured in days, determined by dividing the total
amount paid by 1/12th of the amount applicable in the academic year in
which payment is made for flight training and correspondence training
occurring after July 31, 2011.
However, because we do not pay tuition and fees for individuals
pursuing apprenticeships and on-the-job training under chapter 33, we
cannot apply the entitlement charges rules in section 3313(g)(5) to
individuals pursuing apprenticeships and on-the-job training under
chapter 33. Instead, we propose to charge entitlement for training
assistance allowance under 38 U.S.C. 3687(e) for individuals pursuing
apprenticeships and on-the-job training under chapter 33. We are aware
that the applicable statutes might be understood to preclude charging
entitlement under section 3687(e) for individuals pursuing
apprenticeships and on-the-job training under chapter 33. Section
3323(a)(1) makes 38 U.S.C. 3034(a)(1) applicable to the provision of
educational assistance under chapter 33, and 38 U.S.C. 3034(a)(1) makes
most of the provisions of chapter 36 applicable to the provision of
educational assistance under chapter 30, with an explicit exception of
section 3687. It arguably follows from section 3034 that we may not
apply section 3687 to the provision of educational assistance under
chapter 33. However, VA believes that the relevant statutes are best
understood to permit application of section 3687(e) to the provision of
educational assistance under chapter 33. Congress has consistently
either specified the methodology for computing charges against
entitlement or expressly stated that there will be no charge to
entitlement (see, e.g., 38 U.S.C. 3314(d), 3318(e)). Its failure to do
either section 3323 suggests that there is a gap in the statute VA must
fill. We believe that the best interpretation of the statute is that
there should be a charge against entitlement. Section 3312(a) of title
38, U.S.C., makes clear that educational assistance is limited to 36
months, and, absent an express provision that benefits are not charged
against entitlement, providing benefits without any charge to
entitlement would appear to be inconsistent with the overall statutory
scheme. We believe it is more likely Congress intended that there be a
charge against entitlement, but failed to specify the methodology.
Therefore, it is reasonable to apply the entitlement charges rules in
section 3687(e) to individuals pursuing apprenticeships and on-the-job
training under chapter 33.
According to section 3687(e), an individual is charged entitlement
for each month an individual is paid a training assistance allowance at
a rate equal to the ratio of the training assistance allowance for the
month to the monthly educational assistance allowance payable for full-
time enrollment in an educational institution. For the first six months
of training, we propose to pay a monthly training assistance allowance
to individuals pursuing apprenticeships and on-the-job training under
38 U.S.C. 3313(g)(3)(B) at the same rate as the monthly amount of the
basic allowance for housing payable under 37 U.S.C. 403, which is the
same as the rate of the monthly educational assistance allowance
payable for full-time enrollment in an educational institution; for the
second six months of training, we propose to pay 80% of that amount;
for the third six months of training we pay 60% of that amount; for the
fourth six months of training, we propose to pay 40% of that amount;
and for any month after the first 24 months of training, we propose to
pay 20% of that amount. Accordingly, for the first six months of
training, the ratio of the training assistance allowance to the
educational assistance allowances would be one month, and for
subsequent periods of training, the ratio would be the applicable
portion of a month. We propose to provide these rules for entitlement
charges for apprenticeships and on-the-job training occurring after
July 31, 2011, in new Sec. 21.9561(c).
In Sec. 21.9641(e), we propose to provide notice that VA will
publish the maximum amount of tuition and fees payable each academic
year in the ``Notices'' section of the Federal Register and on the GI
Bill website. We propose to add this notice provision to provide the
public with efficient notification of the changes to the maximum amount
of tuition and fees.
We propose to use the term ``educational institution'' in
Sec. Sec. 21.9601, 21.9626, 21.9636 and 21.9681. We propose to also
define in Sec. 21.9505 and Sec. 21.9506 the term ``educational
institution'' as having the same meaning as the term ``institution of
higher learning,'' as that term is defined in Sec. 21.4200(h). Prior
to August 1, 2011, we referred to this type of institution solely as an
institution of higher learning whereas now we would use that term and
``educational institution'' interchangeably.
Prior to the passage of Public Law 111-377, payment of Post-9/11 GI
Bill benefits for individuals to pursue training at non-college degree
programs was not authorized, although payment of educational benefits
may have been authorized under other benefit programs, such as the
Montgomery GI Bill program. Therefore, in 38 CFR 21.9590(d), we decided
to pay for non-college degree programs on behalf of individuals who had
relinquished another benefit to receive Post-9/11 GI Bill benefits, at
the rate payable under the relinquished benefit. Because Public Law
111-377 authorized payment of training pursued at non-college degree
programs after July 31, 2011, a provision such as Sec. 21.9590(d) is
not necessary for training pursued after July 31, 2011. Therefore, we
propose to omit a provision, similar to Sec. 21.9590(d), permitting
payment for pursuit of non-college degrees at other than IHLs on behalf
of individuals who had relinquished another benefit to receive Post 9/
11 GI Bill benefits, in new Sec. 21.9591, which covers approval of
programs of education for training that begins on or after August 1,
2011, similar to Sec. 21.9590 for approval of programs for training
that occurs prior to August 1, 2011.
h. Section 106--Determination of Monthly Housing Stipend Payments for
Academic Years
Section 106 of Public Law 111-377 added 38 U.S.C. 3313(i), which
requires, effective August 1, 2011, that any monthly housing stipend
payable under section 3313 during the academic year beginning on August
1 of each calendar year must be determined using rates for basic
allowances for housing payable under 37 U.S.C. 403, in effect as of
January 1 of such calendar year. We propose to add this requirement in
Sec. 21.9641(c)(7).
VA has been paying the monthly housing stipend to individuals
attending residence courses in locations not identified with a ZIP code
as if they were attending foreign institutions. However, this has
resulted in inequities in payment. For the reasons we provided in the
discussion of section 102(b) above, we propose to state in Sec.
21.9641(c)(1)(ii) that, on or after August 1, 2012, we will use the ZIP
code or locality code, whichever may be applicable, for all, or a
majority, of the area of the institution in which the individual is
enrolled when determining the monthly housing
[[Page 33680]]
allowance payable for residence training at an IHL located in a state.
i. Section 107--Availability of Assistance for Licensure and
Certification Tests
Section 107 of Public Law 111-377 amended 38 U.S.C. 3315, effective
August 1, 2011, by removing the one-time limit on the use of Post-9/11
GI Bill benefits to pay for a single licensure or certification test.
Under current section 3315, an individual can receive payment for an
unlimited number of licensure and certification tests, however, the
amount payable cannot exceed the least of: $2,000; the amount charged
for the test; or the amount of educational assistance corresponding to
the remaining entitlement at the time of payment for the test. We
propose to provide, in Sec. 21.9667, for reimbursement for any number
of licensing and certification tests taken after July 31, 2011, limited
to the least of the licensing or certification test fee, $2,000, or the
amount equal to the amount of entitlement to educational assistance
available at the time of payment for the test.
In proposed Sec. 21.9626(a)(2), we propose to include the same
requirements included in Sec. 21.9625--that VA will award educational
assistance for the cost of a licensing or certification test only when
the eligible individual takes such test on or after August 1, 2009,
while the test is approved under 38 U.S.C. chapter 36, while the
individual is eligible for such educational assistance, and if the
claim for reimbursement of the cost of the test is received within 1
year of the test. We would include these same requirements in Sec.
21.9626 because they continue to be applicable after July 31, 2011,
but, because they are applicable beginning on or after August 1, 2009,
we propose to include this beginning date requirement in Sec.
21.9626(a)(2).
Section 107 also removed the prohibition on charging entitlement
for payment for a test. It requires that the corresponding charge to
entitlement for payment for each licensing or certification test taken
on or after August 1, 2011, be made at the rate of one month (rounded
to the nearest whole month) for each $1,460 paid for the academic year
beginning on August 1, 2011, as increased under 38 U.S.C. 3015(h) each
academic year beginning on each subsequent August 1. To the extent the
calculation results in a rate of less than one-half month, we interpret
the statute as requiring an entitlement charge of one month, i.e., a
test payment always results in an entitlement charge under section
3315(c).
In Sec. 21.9561(f)(1) and (f)(2)(i), we propose to explain that we
would charge entitlement for each payment of educational assistance
made for an approved licensing or certification test taken on or after
August 1, 2011, and prior to August 1, 2018, by dividing the total
amount of the payment by $1,460 (or as increased under 38 U.S.C.
3015(h) for any subsequent academic year beginning on August 1) for the
academic year beginning August 1, 2011, or the maximum amount of $2,000
for a licensing or certification test, and rounding the result to the
nearest whole month. The charge to entitlement would be at least one
month. For example, if an individual receives educational assistance
during the academic year beginning August 1, 2011, for taking an
approved licensure or certification test that costs $500, VA proposes
to make a charge against the individual's entitlement of 1 month ($500/
$1460 = 0.34; because there is a minimum charge of one month, this
would be rounded to one month).
In 2017, section 108 of Public Law 115-48 further changed the
requirements for calculating entitlement charges for licensure and
certification tests under the Post 9/11 GI Bill for tests taken on or
after August 1, 2018. Section 3315, as amended by section 108 of Public
Law 115-48, requires that, for tests taken on or after August 1, 2018,
entitlement charges be pro-rated based on the actual amount of the fee
charged for the test relative to the rate that is payable for one
month. In order to pro-rate the fee charged relative to the rate
payable for one month, VA will count each month as 30 days. We propose
to calculate the pro-rated charge to entitlement for tests taken on or
after August 1, 2018, in Sec. 21.9561(f)(2)(ii) by dividing the total
amount of the payment by $1,460, as increased under 38 U.S.C. 3015(h)
for the applicable academic years subsequent to August 1, 2011,
beginning on August 1, multiplying by 30 and rounding the result to the
nearest whole day, instead of to the nearest whole month. The minimum
charge to entitlement would be at least one day, since it is the
minimum part of a month.
j. Section 108--National Tests
Section 108 of Public Law 111-377 added 38 U.S.C. 3315A to permit
individuals to use Post-9/11 GI Bill benefits to pay a limited amount
for national tests for admission to IHLs and national tests providing
an opportunity for course credit at IHLs taken on or after August 1,
2011. Section 3315A imposes a corresponding charge to entitlement for
each test, similar to the charge to entitlement imposed with respect to
payment for licensing and certification tests. We propose to implement
the requirements of this section in, among other regulations,
Sec. Sec. 21.9626(a)(3), 21.9668, and 21.9681.
In proposed Sec. 21.9626(a)(3), we propose to provide that VA will
award educational assistance for the cost of a national test for
admission or a national test for credit for an individual who takes
such test after July 31, 2011, under the same conditions under which we
pay for the cost of licensing and certification tests. We propose to
reword one of those conditions to more clearly state that VA will pay
for the cost of a test only if a claim for reimbursement is submitted
within 1 year of taking the test. In Sec. 21.9668, we propose to
specify that the reimbursement an individual could receive for taking a
national test for admission or a national test for credit is the lesser
of (a) the fee charged for the test or (b) the amount equal to the
number of whole months of remaining entitlement available to the
individual. We propose to also specify that of the fee charged for the
test, we will not reimburse for any optional costs that are not
required for the testing process. In Sec. 21.9681(b)(1), we propose to
provide that the certification requirements by educational institutions
for release of payments do not apply to national tests for admission
and national tests for credit.
Because section 108 of Public Law 111-377 amended 38 U.S.C. 3315A
to add two additional test types, we propose to add new paragraphs (mm)
and (nn) to Sec. 21.4200, which defines terms that apply to subpart P
of 38 CFR part 21, containing the regulations for the Post 9/11 GI Bill
program, to define the terms ``national test for admission'' and
``national test for credit.'' As stated in proposed Sec.
21.9626(a)(3), these tests must be specifically approved for the GI
Bill under the provisions in 38 U.S.C. chapter 36, which is implemented
by provisions currently found in Sec. 21.4268. VA has a list of tests
that have applied and been approved for reimbursement, and we would
reference that list in proposed Sec. 21.4200(mm) and (nn). The list is
maintained and can be accessed by visiting the website: <a href="http://inquiry.vba.va.gov/weamspub/buildSearchNE.do">http://inquiry.vba.va.gov/weamspub/buildSearchNE.do</a>. If the test has not yet
been approved or is not contained on this list, the organization
administering the test must contact VA about having it approved.
In Sec. 21.9561(f), we propose to charge entitlement for each
payment of educational assistance made for an approved national test
taken on or after August 1, 2011, and prior to August 1,
[[Page 33681]]
2018, in the same manner as we charge entitlement for licensure and
certification tests, except there would not be a $2,000 limit per cost
of test as there would be with respect to licensure and certification
tests.
We propose to add new Sec. 21.9591 to explain the types of
programs or courses an individual can pursue on or after August 1,
2011, to be eligible for educational assistance under the Post 9/11 GI
Bill. We propose to include in Sec. 21.9591(a)(4) national tests for
admission and national tests for credit as types of programs an
individual can pursue on or after August 1, 2011, and receive
educational assistance under the Post 9/11 GI Bill. We propose to state
in Sec. 21.9591(b)(4) that VA would approve a program of education
under chapter 33, except for a program consisting of a licensing or
certification test designed to help the individual maintain employment
in a vocation or profession, or for a program consisting of a national
test for admission or a national test for credit, only if the
individual is not already qualified for the objective of the program.
In new Sec. 21.9601(b), we propose to explain that overcharges or
excessive fees by organizations or entities offering national tests may
result in disapproval of tests.
As provided in current Sec. 21.9710, an individual's educational
assistance is dependent upon his or her pursuit of a program of
education, except for an individual pursuing tuition assistance Top-Up
or reimbursement for taking an approved licensing or certification
test. We propose to revise Sec. 21.9710 to clarify that payment of
educational assistance is not contingent upon an individual's pursuit
when reimbursement is for a national test. This exception is in
addition to the current exceptions of an individual's pursuit of
tuition assistance Top-Up and reimbursement for taking an approved
licensing or certification test. Furthermore, in proposed Sec.
21.9721(a), we propose to provide that VA does not require
organizations or entities offering national tests for admission,
national tests for credit, or licensing or certification tests to
certify that the individual took the test.
k. Section 109--Continuation of Entitlement to Additional Educational
Assistance for Critical Skills or Specialty
Section 109 of Public Law 111-377 added 38 U.S.C. 3316(c) and (d).
Section 3316(c) allows individuals entitled to receive an increased
amount of educational assistance for critical skills or specialties
(``recruitment or retention kickers'' or ``kickers''), pursuant to 38
U.S.C. 3015(d) or 10 U.S.C. 16131(i), from the Department of Defense
(DOD) or the Department of Homeland Security (DHS) under the MGIB or
the Montgomery GI Bill--Selected Reserve to remain entitled to that
increased assistance if the individual has elected to receive Post-9/11
GI Bill benefits in lieu of either the MGIB or the Montgomery GI Bill--
Selected Reserve. Under section 3316(c), payments of these kickers are
now made on a monthly basis, as opposed to a lump sum for the entire
term, quarter, or semester. Under section 3316(c), the amount payable
on a monthly basis must be determined by multiplying the monthly amount
of the kicker by the individual's rate of pursuit, rounded to the
nearest multiple of 10.
In Sec. 21.9650, which provides for continued entitlement to the
increased ``kicker'' amount for critical skills or specialties if the
individual has elected to receive Post-9/11 GI Bill benefits in lieu of
either the MGIB or the Montgomery GI Bill--Selected Reserve, we propose
to amend Sec. 21.9650(a)(2) to add that the chapter 33 kicker amount
paid to the individual as part of the monthly housing allowance if the
individual is entitled to a monthly housing allowance for the period
from August 1, 2009, to July 31, 2011, will be paid under Sec.
21.9640(b), and for the period after July 31, 2011, will be paid under
Sec. 21.9641(c). Additionally, we propose to amend Sec. 21.9650(b)(2)
and (c)(2) to include separate paragraphs applicable to payment for
training during different time periods, and amend Sec. 21.9650(b)(3)
and (c)(3) to indicate that, after July 31, 2011, payment of the kicker
would be made on a monthly basis.
Additionally, we note that section 109 does not require changes to
the calculation of payment amounts and the timing of payments for the
continued payment of kickers under section 3021 (supplemental
educational assistance). The only change we would make to Sec. 21.9655
would be that any increase that is payable for supplemental educational
assistance will only be paid to the individual as an increase to the
monthly housing allowance if the individual is entitled to receive a
monthly housing allowance under Sec. 21.9640(b)(1)(ii), (b)(2)(ii), or
Sec. 21.9641(c) for that term, quarter, or semester. We are removing
the authority citation to 38 U.S.C. 3316 that appears after paragraph
(a) of Sec. 21.9655 and including it at the end of the section. We
also note that 38 U.S.C. 3316(d), as added by section 109(b)(1) of
Public Law 111-377, directs DOD or DHS, as applicable, to pay for
kickers from funds deposited in the DOD Education Benefits Fund or from
appropriations available to the DHS, as appropriate. Because this
change is an administrative issue for resolution exclusively by the DOD
and the DHS, we would not make any changes to VA regulations to
implement section 109(b)(1).
l. Section 110--Transfer of Unused Education Benefits
Section 110 of Public Law 111-377 amended 38 U.S.C. 3319, effective
August 1, 2011, to permit certain members of the U.S. Public Health
Service and the National Oceanic and Atmospheric Administration, in
addition to members of the Armed Forces, to transfer Post-9/11 GI Bill
benefits to their dependents following completion of minimum duty
requirements. It also clarified that the purpose of permitting this
transfer is to promote recruitment and retention, and that the
individual Secretary concerned (e.g., Secretary of the Army, Secretary
of the Navy, Secretary of Health and Human Services, and others) may
exercise the authority to allow such transfer when authorized by the
Secretary of Defense in the national security interests of the United
States.
We propose to amend the introductory text of Sec. 21.9570 to
indicate that the regulation would apply for training that occurs
before August 1, 2011, and add Sec. 21.9571, to apply to training that
occurs after July 31, 2011, which would mostly replicate Sec. 21.9570,
but we propose to change ``Armed Forces'' and ``active duty service''
to ``Uniformed Services'' and ``service as a member of the Uniformed
Services,'' respectively, each place they appear, and remove
``military'' each time it appears with reference to ``department'' to
permit individuals who train with the U.S. Public Health Service and
the National Oceanic and Atmospheric Administration after July 31,
2011, to transfer Post-9/11 GI Bill benefits to their dependents.
Additionally, in Sec. 21.9571(g)(1), we propose to clarify that any
modification of a transfer of entitlement designation, including
modification of a beginning date under Sec. 21.9571(d)(1)(iii), will
only be effective on or after the date that the modification was
submitted, which would be consistent with Sec. 21.9571(g)(2).
m. Section 111--Bar to Duplication of Certain Educational Assistance
Benefits
Section 111 of Public Law 111-377 amended 38 U.S.C. 3322 by adding
four new paragraphs to bar concurrent receipt of various types of VA
educational assistance, effective August
[[Page 33682]]
1, 2011. Section 111(a) added section 3322(e) to require an election
between educational assistance under 38 U.S.C. 3311(b)(9) (Fry
Scholarship program) and under 38 U.S.C. 3319 (Post-9/11 GI Bill
benefits based on transferred entitlement). Section 111(b) added
section 3322(f) to restrict VA from paying dependency and indemnity
compensation or pension based on the death of a parent to an eligible
child, or increased rates or additional amounts of compensation,
dependency and indemnity compensation, or pension based on the child,
on the one hand, and educational assistance under the Fry Scholarship
on the other hand. Section 111(c) added section 3322(g) to require a
spouse or child to elect to receive transferred Post-9/11 GI Bill
benefits under 38 U.S.C. 3319 from only one individual at a time if
entitled to receive transferred benefits from more than one individual
for the same time period.
Section 111(d) added section 3322(h) to require an individual to
elect one program under which to establish eligibility for educational
assistance even if the individual may be able to establish eligibility
under 38 U.S.C. chapters 30, 32, or 33 and 10 U.S.C. chapters 1606 or
1607 based on a single period of active-duty service. New section
3322(h) also requires a child of a member of the Armed Forces who dies
in the line of duty on or after September 11, 2001, while serving on
active duty, to elect to establish eligibility for educational
assistance under either the Fry Scholarship or under chapter 35 even if
the child is eligible for educational assistance based on the parent's
death under both programs. New paragraphs (e), (g), and (h) of section
3322 allow VA to determine the form and manner of the required
elections.
To implement these requirements, we propose to modify Sec. 21.9690
to indicate that the prohibitions on non-duplication of benefits in
Sec. 21.9690 are effective during the period beginning August 1, 2009,
and ending July 31, 2011. We propose to also add provisions in proposed
Sec. 21.9691, in which we would provide that, after July 31, 2011, an
eligible individual is barred from receiving educational assistance
under 38 U.S.C. chapter 33 concurrently with various types of
educational assistance, see proposed Sec. 21.9691(a) (see discussion
of section 202 below regarding this provision); that the payment of
educational assistance is prohibited to the eligible individual for
courses that are paid in full or in part by the Armed Forces while the
individual is on active duty service, or for a course or courses that
are paid under the Government Employees Training Act, see proposed
Sec. 21.9691(b); that an individual entitled to educational assistance
under both the Fry Scholarship and transferred benefits may not receive
educational assistance under both provisions concurrently, see proposed
Sec. 21.9691(c); that an individual may not receive transferred
benefits from more than one individual concurrently, see proposed Sec.
21.9691(d); that an individual's receipt of educational assistance
under the Fry Scholarship is a bar to subsequent payment of both (i)
dependency and indemnity compensation or death pension to the
individual once they attain the age of 18 years, or (ii) an increased
rate or additional amount of compensation, dependency and indemnity
compensation, or pension paid on account of the individual, see
proposed Sec. 21.9691(e); that an individual who is eligible under 38
U.S.C. chapter 30, 32, or 33 and 10 U.S.C. chapter 1606 or 1607 must
elect under which authority such service is to be credited; and that a
child of a member of the Armed Forces who, after September 10, 2001,
dies in the line of duty while serving on active duty, who is eligible
for educational assistance under the Fry Scholarship or 38 U.S.C.
chapter 35 based on the parent's death may not receive benefits under
both provisions, see proposed Sec. 21.9691(h).
We propose to implement section 3322(h) by stating in Sec.
21.9691(h)(1)(ii) that an individual may not request that portions of a
single period of service be used to establish eligibility under more
than one benefit program. In other words, we propose to prohibit an
individual from splitting a single period of service into separate
periods and use the separate periods to establish eligibility for
different benefit programs. In Sec. 21.9691(h)(1)(i), we propose to
require an individual whose period of active duty service meets the
requirements to establish eligibility under 38 U.S.C. chapter 30, 32,
or 33 and 10 U.S.C. chapter 1606 or 1607 to make an irrevocable
election of which benefit program to use to establish eligibility and
toward which benefit program to credit service. In Sec. 21.9691(h)(2),
we propose to require that a child eligible for educational assistance
under Sec. 21.9520(d) and 38 U.S.C. chapter 35 based on the parent's
death make an irrevocable election in writing specifying which benefit
the child wishes to receive. Although Congress does not explicitly
state that an election must be irrevocable, VA finds that the statutory
language supports this result. In contrast to section 3322(e) and (g),
paragraph (h) does not merely bar ``concurrent receipt'' but instead
bars ``duplication of eligibility'' under more than one program, and it
provides that the individual ``shall elect . . . under which authority
[their] service is to be credited'' or ``shall elect . . . under which
chapter to receive . . . assistance.'' VA finds that requiring an
election to be irrevocable best meets the requirements concerning the
bar on duplication of benefits.
With regard to Post 9/11 GI Bill benefits and duplication of
payments, Congress added prohibitions using replicated statutory
language from statutes governing payment for other benefit programs
(see 38 U.S.C. 3033). Congress did not expressly provide any bar to
duplication of benefits for the same period of enrollment in the event
an individual can establish eligibility for chapter 33 benefits under
multiple provisions, such as based on the death of more than one
parent, or based on the beneficiary's own active-duty service and a
parent's service (either with transferred benefits or Fry Scholarship
benefits). However, the statutory structure is most logically construed
to preclude concurrent awards of chapter 33 benefits to the same
individual. Section 3311(b)(1) through (10) of title 38, U.S.C.,
provides 10 circumstances under which a person may become an ``eligible
individual'' entitled to chapter 33 benefits, 8 of which pertain to the
length of the individual's active service, while the other 2 categories
involve the Fry Scholarship and Purple Heart recipients. Once an
individual attains eligibility under any of those categories, they are
entitled to payments under 38 U.S.C. 3313 for a program of education,
with the amount of payment varying depending upon the category under
which they attained eligibility. The determination that a person is an
``eligible individual'' under section 3311 is a threshold determination
needed to establish eligibility for payments under section 3313. The
fact that a person could satisfy two or more of the eligibility
categories in section 3311(b)(1) through (10) does not entitle them to
more than one award of benefits under section 3313. Indeed, most
individuals who qualify under one of the length-of-service categories
in section 3311(b)(1) through (8) would also satisfy one or more of the
lesser length-of-service standards in those paragraphs. Where an
individual meets two or more of the eligibility categories in section
3311(b)(1) through (10), VA proposes to credit them with the
[[Page 33683]]
eligibility category resulting in the highest level of payment, but
would not grant them multiple awards of chapter 33 benefits. Similarly,
if an individual would qualify under one category for two or more
independent reasons, as in the case of an individual who could qualify
for the Fry Scholarship based on the death of more than one parent, VA
proposes to find that they satisfy the threshold eligibility
requirement, but would not grant multiple awards of chapter 33
benefits. Granting concurrent receipt of benefit payments under
multiple eligibility provisions of the Post-9/11 GI Bill would result
in a windfall of benefit payments not contemplated by the statutory
scheme.
Accordingly, we propose to add paragraphs (f) and (g) to Sec.
21.9691 to expressly prohibit concurrent receipt of multiple Post 9/11
GI Bill benefits awards simply because an individual may meet more than
one of the eligibility requirements in section 3311(b)(1) through (10).
Section 21.9691(f) would prohibit an individual from establishing
eligibility for the Fry Scholarship under Sec. 21.9520(d) based on the
deaths of more than one parent. Section 21.9691(g) would prohibit an
individual from concurrently establishing eligibility for Post 9/11 GI
Bill benefits based on his or her own service and someone else's
service (e.g., with transferred benefits or Fry Scholarship).
n. Section 201--Extension of Delimiting Dates for Use of Educational
Assistance by Primary Caregivers of Seriously Injured Veterans and
Members of the Armed Forces
Section 201 of Public Law 111-377 amended 38 U.S.C. 3031(d), 38
U.S.C. 3319(h)(5), and 38 U.S.C. 3512(c), effective August 1, 2011, to
extend the delimiting date for individuals eligible for educational
assistance under each of these chapters to use the educational
assistance if they are designated caregivers of disabled veterans or
servicemembers and are unable to pursue a program of education because
of responsibilities associated with this designation. Implementation of
the new provisions will be the subject of a separate rulemaking.
o. Section 202--Limitations on Receipt of Educational Assistance Under
National Call to Service and Other Programs of Educational Assistance
Section 202 of Public Law 111-377 amended 38 U.S.C. 3322 and 3681,
effective August 1, 2011, to add the National Call to Service (NCS)
program (10 U.S.C. 510) to the list of programs under which an
individual may not concurrently receive benefits, which bars concurrent
receipt of benefits under the NCS program and other listed programs.
Section 21.3022 of title 38, CFR, bars concurrent receipt of
benefits under chapter 35 and other chapters listed in sections 3322
and 3681; Sec. 21.5022 bars concurrent receipt of benefits under
chapter 32 and other chapters listed in those sections; Sec. 21.7143
bars concurrent receipt of benefits under chapter 30 and other chapters
listed in those sections; and Sec. 21.7642 bars concurrent receipt of
benefits under 10 U.S.C. 1606 and other chapters listed in those
sections. Section 21.4022 bars concurrent receipt of assistance
allowances under multiple programs. Section 21.9635(w) also bars
concurrent receipt of educational assistance allowance under multiple
programs. We propose to amend Sec. Sec. 21.3022, 21.4022, 21.5022,
21.7143, 21.7642, and 21.9635(w) by adding 10 U.S.C. 510 to the list of
programs in these regulations to bar concurrent receipt of benefits
under the NCS program and various other programs. We propose to specify
in each regulation that the bar on concurrent receipt of benefits under
the NCS program and other programs would be effective August 1, 2011,
as required by law.
Section 21.9690 bars concurrent receipt of benefits under chapter
33 and other chapters listed in this section. Instead of adding 10
U.S.C. 510 to the list of programs in Sec. 21.9690, we propose to add
10 U.S.C. 510 to the list of programs in new Sec. 21.9691, prohibiting
concurrent receipt of benefits under chapter 33 and other chapters
listed in this section and applicable to training pursued after July
31, 2011, to bar concurrent receipt of benefits under the NCS program
and various other programs.
p. Section 203--Approval of Courses
Section 203(a)(1) of Public Law 111-377 amended 38 U.S.C. 3672(b)
to provide for constructive approval for accredited standard college
degree programs at public or not-for-profit private institutions,
certain flight training courses, and apprenticeship programs. Section
203(c) of Public Law 111-377 amended 38 U.S.C. 3675(a) to provide
authority for a State approving agency or the Secretary to approve
accredited programs (degree and non-college degree) at proprietary for-
profit institutions. Prior to the amendment, section 3675 provided
approval criteria for all accredited degree and non-college degree
programs (regardless of whether the program was offered by a public,
proprietary for-profit, or proprietary not-for-profit institution).
Section 203(a)(1) of Public Law 111-377 amended 38 U.S.C. 3672 to
provide that ``accredited standard college program[s]'' offered by
public and proprietary not-for-profit educational institutions are
``deemed to be approved'' (essentially meaning that they are exempt
from all approval criteria except those limitations in 38 U.S.C.
3675(b)(1) and (b)(2), 3680A, 3684, and 3696; in other words, these
deemed approved programs are exempt from most of the requirements of 38
CFR 21.4253). See 38 U.S.C. 3672(b)(2)(A)(i). However, because section
3672(b)(2)(A)(i) explicitly only applies to ``standard college degree
program[s],'' the ``deemed to be approved'' status does not apply to
non-college degree programs at public or proprietary not-for-profit
educational institutions. Furthermore, Public Law 111-377, section
203(c), amended 38 U.S.C. 3675(a)(1) by striking ``A State approving
agency may approve the courses offered by an educational institution''
and inserting ``The Secretary or a State approving agency may approve
accredited programs (including non-degree accredited programs) offered
by proprietary for-profit educational institutions.'' Prior to this
amendment, section 3675 placed approval requirements on all accredited
programs of education. See 38 U.S.C. 3675(a)(1) (2010) (stating ``A
State approving agency may approve the courses offered by an education
institution when--'' without any further qualifiers on either
``courses'' or ``educational institutions''; therefore, the section
applied to all courses at all educational institutions). However, due
to the Public Law 111-377 amendments, only proprietary for-profit
educational institutions were explicitly subject to the approval
requirements of section 3675. See 38 U.S.C. 3675(a)(1) (2011) (``. . .
may approve accredited programs (including non-degree accredited
programs) offered by proprietary for-profit educational institutions
when--'').
The limitations of Public Law 111-377--accredited college degree
programs at public and proprietary not-for-profit IHLs are ``deemed to
be approved'' while section 3675 approval requirements only explicitly
apply to proprietary for-profit educational institutions--left a hole
in coverage concerning the statutory approval requirements of non-
college degree programs at public or proprietary not-for-profit
educational institutions.
With regard to liberalized approval criteria for programs of study
at IHLs, it
[[Page 33684]]
is important to note that section 203 only specifically addressed
standard college degree programs at IHLs. It is silent with regard to
non-college degree programs at IHLs. This change, in combination with
the amendment of 38 U.S.C. 3675 to only control programs offered by
for-profit proprietary IHLs, left no statutory provisions governing the
approval of accredited non-college degree programs at public and
proprietary not-for-profit IHLs.
However, the enactment of section 408 of Public Law 114-315
remedied this shortcoming by amending 38 U.S.C. 3675(a)(1) to provide
for the approval criteria of accredited non-college degree programs
offered by public and proprietary not-for-profit IHLs. Section
3675(a)(1) was amended by striking ``The Secretary or a State approving
agency'' and inserting ``A State approving agency, or the Secretary
when acting in the role of a State approving agency,'' and by striking
``offered by proprietary for-profit educational institutions'' and
inserting ``not covered by section 3672 of this title.'' As a result of
this amendment, accredited non-college degree programs at public and
proprietary not-for-profit IHLs are now subject to the approval
requirements of section 3675. Thus, State approving agencies, or the
Secretary when acting as a State approving agency, are required to
determine the approval requirements of non-college degree programs at
public or proprietary not-for-profit educational institutions.
We propose to amend Sec. 21.4253 to clarify that accredited
standard college degree courses at proprietary for-profit educational
institutions and accredited non-college degree courses offered at
either proprietary for-profit institutions or public or proprietary
not-for-profit institutions would be subject to Sec. 21.4253's
approval criteria.
In Sec. 21.4150(f), we propose to provide that accredited programs
of education leading to a standard college degree offered at a public
or proprietary not-for-profit IHL, flight training courses approved by
the Federal Aviation Administration offered by a certified pilot school
possessing a valid Federal Aviation Administration pilot school
certificate or provisional pilot school certificate under 14 CFR part
141, registered apprenticeships, programs of education leading to a
secondary school diploma offered by a secondary school approved in the
State in which it is operating, and licensure tests offered by a
Federal, State, or local government are deemed approved for VA
benefits.
We propose to modify Sec. 21.4259 by replacing ``State approving
agency'' each place it appears in paragraphs (a) and (b)(1) and adding,
in each place, ``State approving agency or the Secretary'' to make it
consistent with 38 U.S.C. 3679 and 3689. We propose to also amend Sec.
21.4263 to clarify requirements for approval of flight programs and
provide that certain flight training courses, including those pursued
with chapter 33 benefits, are deemed approved under chapter 33, and
amend Sec. 21.4235 to provide that flight training is approvable under
certain conditions. Further, we propose to amend Sec. 21.4268 to
provide that licensure tests offered by a Federal, State, or local
government are deemed approved under chapter 33.
Section 203(b) of Public Law 111-377 added 38 U.S.C. 3673(d) to
authorize the use of State approving agencies for compliance and
oversight activities without regard to whether the Secretary or the
State approving agency approved the courses offered in the State
concerned. Section 310 of Public Law 115-48 amended section 3673(d) to
provide that the Secretary may use the services of a State approving
agency to conduct ``compliance and risk-based surveys and other such
oversight purposes.'' We propose to add a requirement in Sec. 21.4151
that SAAs perform compliance and risk-based surveys and oversight
without regard to whether a program was deemed approved or approved by
the Secretary or SAA.
q. Section 204--Reporting Fees
Section 204 of Public Law 111-377 amended 38 U.S.C. 3684(c),
effective October 1, 2011, to require educational institutions to use
fees paid after January 4, 2011, to make certifications or otherwise
support programs for veterans. We propose to revise Sec. 21.4206 to
add this new requirement for educational institutions in Sec.
21.4206(e)(3). We propose to also amend Sec. 21.4206 to include
references to 10 U.S.C. 510 and 10 U.S.C. chapter 1607. Although these
programs are not explictly listed in 38 U.S.C. 3684, certifications
under these benefit programs are nonetheless authorized reporting fees
under 10 U.S.C. 510(h)(2)(B) and 10 U.S.C. 16166(b) and were previously
inadvertently omitted from the existing regulation governing the
payment of reporting fees to educational institutions. These chapters
would also be included in revised Sec. 21.4206 showing the new
requirement for educational institutions with regard to use of fees for
certifications and support for veterans programs.
Additionally, we propose to add in Sec. 21.4206(b) that when
computing reporting fees for institutions, VA will not count
individuals whose only receipt of educational assistance during a
calendar year was tuition assistance Top-Up under 38 U.S.C. chapter 30,
rural relocation payment, or reimbursement for a national test for
admission, national test for credit, or a licensing or certification
test. The exclusion of tuition assistance Top-Up payments is merely
maintaining the same limitation currently found at Sec. 21.4206(b).
The exclusion of the additional categories of payments is because these
payments do not require certifications. As such, payments under 38
U.S.C. 3684 would be inappropriate because annual reporting fees
payments are ``in lieu of any other compensation or reimbursement for
reports or certifications which such educational institution or joint
apprenticeship training committee is required to submit to the
Secretary by law or regulation.'' Since there is no required
certification, there should be no ``in lieu of'' reporting fee.
We note that the rates that are currently listed in Sec. 21.4206
and that would be listed in proposed Sec. 21.4206 are and would
continue to be outdated. We plan to further revise Sec. 21.4206(b) in
a separate rulemaking to address the increase in reporting fees
authorized by section 204 of Public Law 111-377 and section 304 of
Public Law 115-48. VA will, of course, pay the rates authorized by
statute, notwithstanding any contrary provisions in regulations pre-
dating the current statute.
r. Section 205--Election for Receipt of Alternate Subsistence Allowance
for Certain Veterans With Service-Connected Disabilities Undergoing
Training and Rehabilitation
Section 205 of Public Law 111-377 amended 38 U.S.C. 3108(b),
effective August 1, 2011, to permit veterans entitled to a subsistence
allowance under 38 U.S.C. chapter 31 (VA's Veteran Readiness and
Employment Program) who also are eligible for educational assistance
under 38 U.S.C. chapter 33 (the Post-9/11 GI Bill) to elect to receive
a payment in an amount equal to the applicable monthly amount of basic
allowance for housing payable under 37 U.S.C. 403 in lieu of the
otherwise applicable subsistence allowance payable under chapter 31.
The rules implementing this provision of law were addressed in the
interim final rule published in the Federal Register on August 1, 2011
(Veteran Readiness and Employment Program--Changes to Subsistence
Allowance, 76 FR 45697), which was adopted as a final rule on January
12, 2012 (77 FR 1872).
[[Page 33685]]
Those rules are currently codified in 38 CFR 21.260(c) and 21.264(b).
This election was authorized as an incentive to enroll in the chapter
31 program to benefit from other services available under this program.
See 76 FR 45697.
Section 3322(a) of title 38, U.S.C., prohibits VA from paying
benefits under both chapter 33 and chapter 31 concurrently. Thus, an
individual entitled to benefits under both chapters must elect one
chapter under which to receive benefits. While an election in this
situation is mandatory, the timing of the election is not specified. VA
policy allowing an individual to switch education benefit programs
during the enrollment term was in place before Post-9/11 GI Bill
education benefits were paid in lump sums. At that time, a switch in
education benefit programs during the enrollment term did not create
problems because benefit payments were paid monthly rather than in one
lump sum. Now that VA is required to make lump sum payments at the
beginning of the term under 38 U.S.C. 3313(d), if an individual
switches from chapter 33 to chapter 31 during the term, because a lump
sum was already paid under chapter 33, there may be an overpayment that
the individual is responsible to pay. Under current Sec. 21.9635(w),
when an individual switches from chapter 33 to chapter 31, we terminate
chapter 33 benefits on the first day of the enrollment period during
which the individual makes the election to switch, creating an
overpayment because the lump sum has already been paid out.
To avoid the creation of an overpayment when an individual switches
from chapter 33 to chapter 31 during a term, we propose to change the
rule regarding termination of educational assistance when an individual
elects to switch benefit programs. We propose to add Sec.
21.9636(w)(2) to require the termination of educational assistance
under chapter 33 to be effective the first day of the enrollment period
subsequent to the one during which the individual requests to receive
educational assistance under chapter 31. This change would prevent
overpayments because payment of chapter 31 benefits would not cover the
same period covered by the lump sum payment of chapter 33 benefits, but
would begin the following term. Further, for administrative efficiency,
we propose to stipulate in Sec. 21.9636(w)(3) that an eligible
individual may only request a change in receipt of benefits from
chapter 33 to chapter 31 once per term, quarter, or semester.
Similarly, to avoid the creation of an overpayment if an individual
elects to switch from chapter 31 to chapter 33 during a term, we
propose to add, in Sec. 21.9626(l)(2)(ii), that VA will begin paying
net cost of tuition and fees, and the books and supplies stipend, under
chapter 33 beginning the first day of the enrollment period subsequent
to the enrollment period during which the individual requests to
receive educational assistance under chapter 33. Because the chapter 31
subsistence allowance would have been paid through the end of a month
(and not in a lump sum for the entire term), we propose to state, in
Sec. 21.9626(l)(2)(i), that we will begin paying the monthly housing
allowance under chapter 33 beginning the first day of the month
following the date the individual requests to receive educational
assistance under chapter 33.
s. Section 206--Modification of Authority To Make Certain Interval
Payments
Section 206 of Public Law 111-377 amended 38 U.S.C. 3680(a),
effective August 1, 2011, to remove VA's authority to make interval
payments under its educational assistance and Veteran Readiness and
Employment Program. While the law allows VA to continue to make
payments for non-training periods under certain circumstances (i.e.,
when schools are temporarily closed under an established policy based
on an Executive Order of the President or due to an emergency
situation, including a strike), the total number of weeks that VA may
continue to make payments in any 12-month period may not exceed 4
weeks.
We propose to revise the heading of Sec. 21.4138(f) to indicate
that, prior to August 1, 2011, there would be no changes in payment of
allowances for intervals and temporary school closings and add a new
paragraph (g) to eliminate interval payments beginning August 1, 2011,
and limit payment of allowances during temporary school closings to 4
weeks in any 12-month period. We would not include in new paragraph (g)
the requirement in current paragraph (f)(6) that if the reason for the
closing is due to a strike that lasts more than 30 days, the Education
Service Director would make the determination whether to deny payment.
Similar to current paragraph (f)(6)(2), we propose to allow in new
paragraph (g)(4) for the administrative review of decisions concerning
whether a school closing is permanent or temporary. We propose to also
add Sec. 21.9681(b)(7) to provide that VA may continue to make
payments during a temporary school closing. We plan to further revise
Sec. 21.9681(b) in a separate rulemaking to implement section 109 of
Public Law 115-48, which authorizes payment of housing allowances for a
certain period following a permanent closure. VA will, of course,
continue to pay the monthly housing allowance to eligible individuals
for a limited period following a permanent school closure, pursuant to
the current statute.
t. Other Clarifications and Modifications
In addition to the changes we propose to make to implement Public
Law 111-377, we propose to clarify other provisions by adding language
or simply re-wording language. We propose to also make technical
changes to update our regulations, add provisions that were previously
inadvertently omitted, and remove references to provisions that no
longer exist.
Section 309 of Public Law 115-48 added 38 U.S.C. 3684(a)(4)
requiring courses that begin seven or fewer days after the first day of
the academic term be treated as if they began on the first day of the
academic term for purposes of reporting enrollment under section 3684.
In proposed Sec. 21.9626(b)(2) and (3), we propose to provide that
resident courses starting within seven calendar days (or one calendar
week) of the first scheduled date of classes for an academic term will
be considered to have begun on the first scheduled date of the term.
In Sec. Sec. 21.4002(a), 21.4150(f), 21.4200(oo), 21.4259, 21.9735
and 21.9750, we propose to make several minor changes--removing
language, adding language, or re-wording existing language, or
reorganizing the section--to clarify the current meanings but would not
change any of the substantive meanings of the sections. Specifically,
in Sec. 21.4002(a), we propose to remove the reference to Sec. Sec.
19.192 and 19.183 because these sections no longer exist. In Sec. Sec.
21.4150(f)(1) and 21.4259, among other changes, we propose to replace
the word ``course'' with the term ``program of education,'' which would
not change the substance of this provision because a course is a
component of a program of education. In Sec. 21.4200(oo), we propose
to specify that the usage of the terms ``we'', ``us'', ``our'' means
the United States Department of Veterans Affairs. In Sec. 21.9735, we
propose to replace the wording ``individuals and institutions of higher
learning'' with the wording ``eligible individuals and educational
institutions'' to be consistent with the terminology used in the
statutes. In Sec. 21.9750, we propose to replace the wording
``institution of higher learning''
[[Page 33686]]
with the wording ``educational institution''.
In Sec. 21.9695, we propose to articulate additional circumstances
that we have found in practice that warrant a finding that an
educational institution is liable for overpayments to it from VA. We
propose to restructure paragraph (b)(3) to clearly enumerate each
circumstance. Under current Sec. 21.9695(b)(3), an educational
institution is liable for overpayments when an overpayment is the
result of willful or negligent false certification by the educational
institution, or willful or negligent failure to certify excessive
absences from a course, discontinuance of a course, or interruption of
a course by the eligible individual. Under revised Sec. 9695(b)(3), we
propose to add that the overpayment of educational assistance paid to
the educational institution on behalf of an individual would constitute
a liability of the educational institution when a student never attends
classes for which he or she was certified (regardless of the reason for
non-attendance), completely withdraws from all courses on or before the
first day of the certified period of enrollment, or dies during the
term; when an educational institution receives a payment for the wrong
student, receives a duplicate payment for a student, or receives a
payment in excess of the amount certified to VA on the enrollment
certification; or when an educational institution submits an amended
enrollment certification to correctly report a reduced amount of
tuition and fee charges, reduced Yellow Ribbon Program contributions,
or reduced amounts for both tuition and fees and Yellow Ribbon Program
contributions. In these circumstances, the school would have received
money it was not entitled to or was no longer entitled to because the
certification that an individual student attended would have been
false. The occurrence of any of these circumstances leads to the
reasonable conclusion that an educational institution has made an
improper student certification and has been unjustly enriched. Hence,
it is reasonable to hold the educational institution liable for the
amount of overpayment. Further, 38 U.S.C. 3685(b) and 3323, both of
which are applicable to chapter 33, give VA the authority to promulgate
regulations prescribing the circumstances which would constitute
liability of an educational institution.
In Sec. 21.9715, we propose to remove the references to ``Sec.
21.9640(b)(1)(ii) or (b)(2)(ii)'' and replace it with ``Sec.
21.9640(b)(1)(ii), (b)(2)(ii), or 21.9641(c), whichever is applicable''
to include the newly added Sec. 21.9641(c). We propose to replace the
term ``the institution of higher learning'' with the term ``the
educational institution'' in each place it appears in the section and
replace the term ``an institution of higher learning'' with the term
``the educational institution'' in paragraph (b)(1). Also, we propose
to remove the reference to Sec. 21.9730 because this section does not
exist, and we would replace it with Sec. 21.9735.
We propose to reword the provisions in Sec. 21.9645(a)(1)(iii),
(b)(1)(ii), and (c) to clarify that, in order for an individual to
receive a refund of the chapter 30 contribution under the Post-9/11 GI
Bill, the individual must have made a contribution into the Montgomery
GI Bill and be in receipt of the monthly housing allowance at the time
of entitlement exhaustion. We propose to remove the wording in Sec.
21.9645(a)(1)(iii) ``He or she is a member of the Armed Forces who is
eligible to receive educational assistance under 38 U.S.C. chapter 30
because he or she has met the requirements of Sec. 21.7042(a) or (b)
and is making contributions as provided in Sec. 21.7042(g)'' because
some of it is extraneous and replace it with the wording ``He or she is
a member of the Armed Forces who is making contributions as provided in
Sec. 21.7042(g) towards educational assistance under 38 U.S.C. chapter
30''. By changing the language in Sec. 21.9645(c) from ``will only be
paid to the individual who made the contributions as an increase to the
monthly housing allowance'' to ``will only be issued to the individual
who made the contribution when the individual is in receipt of the
monthly housing allowance payable under Sec. 21.9640(b) or Sec.
21.9641(c) at the time his or her entitlement exhausts'', we are
clarifying that an individual must be in receipt of the monthly housing
allowance at the time of entitlement exhaustion to get a refund.
Additionally, several sections would be updated to reference newly
added sections when applicable. The updated sections would include
21.9550, 21.9620, 21.9645, and 21.9715.
In addition, for clarification, we propose to revise the language
in Sec. 21.9550(b)(2) to state that an individual who has not used his
or her entitlement under chapter 30 and makes an irrevocable election
to receive benefits under chapter 33 will be entitled to 36 months of
chapter 33 benefits. The language used in the current Sec.
21.9550(b)(2) does not clearly state that an individual is entitled to
36 months of benefits if they have not used or transferred chapter 30
benefits.
Finally, we propose to add the definition and the rules for
``fugitive felons'' since the ``fugitive felons'' provisions, contained
in section 505 of Public Law 107-103, the Veterans Education and
Benefits Expansion Act of 2001 (codified in 38 U.S.C. 5315B), were
already implemented in our regulations for chapter 30 benefits but were
not included for chapter 33 benefits. The new fugitive felon provisions
that we would include in this rulemaking would be merely the
reiteration of the provisions mandated by statute. They would not
represent any substantively novel policies or practices. We would add
the provisions for ``fugitive felons'' in Sec. Sec. 21.9505, 21.9506,
21.9625, 21.9626, 21.9635 and 21.9636. In Sec. Sec. 21.9505 and
21.9506, we propose to provide the definition of ``fugitive felon'' as
a person identified as such by Federal, State, or local law enforcement
officials and who is a fugitive by fleeing to avoid prosecution,
custody, or confinement for a felony. This term also includes a person
who is a fugitive by reason of violating a condition of probation or
parole imposed for the commission of a felony. In Sec. Sec. 21.9625(m)
and 21.9626(m), we propose to state that an award of educational
assistance to an otherwise eligible veteran, person, or dependent of a
veteran will begin effective the date the individual ceases to be a
fugitive felon. In Sec. Sec. 21.9635(bb) and 21.9636(bb), we propose
to state that VA will not award educational assistance to an otherwise
eligible Veteran or dependent of an otherwise eligible Veteran for any
period during which the Veteran is a fugitive felon and that the date
of discontinuance of an award of educational assistance to a Veteran
who is a fugitive felon or dependent of a Veteran who is a fugitive
felon is the date of the warrant establishing that the individual is a
fugitive felon or the date otherwise shown by evidence to be the date
the individual became a fugitive felon.
Additionally, we propose to amend existing regulations and add new
regulations to implement policies for determining discontinuance dates.
Our current policies and practices function in ways that help to limit
a student's debt by reflecting the reality of how schools refund
tuition and fees during drop/add periods and by embodying what VA
believes to be equitable dispositions for students that are negatively
impacted by a mid-term course disapproval that is beyond the control of
the student but where the student bears the brunt of the impact. Our
amended and new regulations
[[Page 33687]]
would reflect our current policies and practices, except for certain
proposed changes with respect to the first instance of withdrawal,
reductions in rates of pursuit (either during the drop/add period, with
mitigating circumstances, or when a punitive grade is assessed),
individuals that have a change in active duty status, and individuals
that die during a term--in those cases, we would implement slightly
modified policies and practices as explained in greater detail below.
Specifically, regarding discontinuance dates, we propose to amend
Sec. 21.9635(c)(1) to state that, if a student withdraws from all
courses after the school's drop/add period, and there are no mitigating
circumstances, VA will terminate educational assistance as of the first
day of the term from which the individual withdraws. We propose to
amend Sec. 21.9635(c)(2) to state that, if a student withdraws from
all courses with mitigating circumstances, withdraws during the
school's drop/add period or within the first 30 days of the enrollment
period, whichever is earlier, or withdraws from all courses for which a
punitive grade is assigned, VA will terminate educational assistance as
of the last day of attendance or the official date of change in status.
We propose to specify in Sec. 21.9635(d) that VA will reduce
educational assistance effective the end of the month during which the
reduction occurred. These changes are being made because they are
consistent with how we have interpreted the statutory requirements
contained in 38 U.S.C. 3680(a) to process such adjustments under the
Montgomery G.I. Bill. With respect to withdrawals during the drop/add
period, we have historically processed claims in this manner because of
the fact that schools generally do not assign punitive grades (or other
penalties) during this period and generally there is no need for any
justification or mitigating circumstances for withdrawals during this
period, and schools generally refund all tuition and fees paid for
courses dropped during drop/add periods or within the first 30 days of
enrollment. Punitive and nonpunitive grades have, for the purposes of
this regulation, the same meaning as they have historically in the
admistration of VA educational benefits as defined in 38 CFR 21.4200(j)
and (k). It is general practice at most schools that the drop/add
period is a time for students to identify whether a course is
appropriate for them and to allow the student to withdraw without any
negative repercussions. Given the nature of the drop/add period as a
time for the student to evaluate a course without the school imposing
any negative consequences and that schools generally refund tuition and
fees for courses dropped during drop/add periods or within the first 30
days of enrollment, VA does not want a student to incur debt if he or
she withdraws from residence training during a drop/add period or
within the first 30 days of enrollment, whichever is earlier.
Therefore, in these circumstances, we propose to assign the
discontinuance date as the last date of attendance for those in
residence training, instead of the first day of the term. This change
to discontinue payment on the date the student last attends the course
will allow the student to not incur a debt since no payment will be
made for any period that the student is not in attendance of the
course. The same procedures would likewise be codified in proposed
Sec. 21.9636(c) and (d).
Furthermore, in Sec. 21.9636(m), we propose to specify that VA
will discontinue any monthly payments at the end of the month during
which an eligible individual is incarcerated in a Federal, State,
local, or other penal institution or correctional facility or the end
date of the enrollment period as certified by the educational
institution, whichever is earlier. Previously, in Sec. 21.9635(m), we
discontinued the monthly payments the first day of the enrollment
period for which the individual's tuition and fees were paid by a
Federal, State, or local program, the first day of the enrollment
period in which the individual was incarcerated, or the beginning date
of the award under 38 CFR 21.9625, whichever was the latest. We are
changing the discontinuance date to the end of the month or end of the
enrollment period, whichever is earlier, because it would lead to more
equitable dispositions for students who are negatively impacted by a
mid-term course payment discontinuance.
In addition to these changes, we will also add new paragraphs (b)
and (c) in Sec. 21.9676 to clarify that incarcerated individuals are
not entitled to a monthly housing allowance when they are incarcerated
due to a felony conviction, although they may be still entitled to
other educational assistance (such as unpaid tuition and fees, as well
as books, supplies, and equipment).
Regarding discontinuance dates when a program of education is
disapproved during a term, either by the actions of the State approving
agency or the Secretary, or in the event that an independent study
course loses its accreditation, we propose to add Sec. 21.9636(h),
(i), and (x) and state that, in each of these situations, the
discontinuance date would be the end of the course or period of
enrollment. This would allow the student to complete the course without
incurring a debt for the remaining cost of the course. Currently, when
a program of education is disapproved by the actions of the State
approving agency or the Secretary, the discontinuance date is either
the date the payment was first suspended by the Director of the VA
Regional Office (if disapproval was preceded by a suspension) or the
end of the month in which the disapproval is effective. Additionally,
when an independent study course loses its accreditation, the
discontinuance date is the effective date of the withdrawal of
accreditation by the accrediting agency. This policy would be made
because we have found that to do otherwise (i.e., make the
discontinuance date the date of disapproval or withdrawal of
accreditation) would unfairly punish the student for a situation
completely out of the student's control. The student would be forced to
either pay for the remainder of the course out-of-pocket (through the
assessment and repayment of a VA educational assistance debt) or
transfer--as of the date of the disapproval--to a different program.
Transferring to a new program is highly problematic for a student,
given the limited availability of programs willing to accept an intra-
term transfer and the inconvenience to a student of trying to find and
transfer to a new program. As a result, many students in such
situations would ultimately choose to stay in the disapproved course
and incur a debt. We believe our policies should be designed to limit
the negative impact on the student when forced to make such a choice;
therefore, we feel it is appropriate to pay educational benefits
through the end of the course or period of enrollment, as certified by
the educational institution, in which the disapproval or withdrawal of
accreditation is effective and, thereby, avoid creating a student debt
to cover the cost for the remainder of the term.
Additionally, in the event of a student's first instance of
withdrawal (proposed Sec. 21.9636(b)) or reduction in the rate of
pursuit of a program of education (proposed Sec. 21.9636(d)(1)), we
propose to implement a policy change whereby VA would now adjust the
eligible individual's educational assistance effective the last date of
attendance as opposed to our current policy of adjusting effective the
end of the month in which the change occurred. With respect to a change
in active duty status affecting an individual's eligibility for a
monthly
[[Page 33688]]
housing allowance, section 3313(j) requires VA to determine the amount
of the monthly housing stipend on a pro rata basis for the period of
the month during which an individual is not performing active duty
service. Under this provision, in the event of a student's change in
active duty status affecting eligibility to a monthly housing
allowance--leaving active duty (proposed Sec. 21.9626(k)) or entering
active duty (proposed Sec. 21.9636(n)), we propose to implement a
policy change whereby we would no longer pay to the end of the month
but, instead, would begin or discontinue payments effective the actual
date of the change in status. For clarity, we propose to also include
Sec. 21.9636(n)(1)(ii) to redirect readers to proposed paragraph
(n)(2), as these changes would also apply to those who reduced or
terminated training due to active duty service since monthly housing
would no longer be payable while on active duty.
Our current policies and practices with regard to these three
changes in a student's status (rate of pursuit, entering active duty,
or leaving active duty) were designed to help minimize overpayments of
monthly benefit payments. The Post-9/11 GI Bill was initially
implemented with rudimentary information technology (IT) systems, a
heavy reliance on manual benefit calculations and payment authorization
processes, and, as a consequence, suboptimal claims processing
timeliness. Therefore, the adoption of an ``end of month'' rule, as
opposed to specifying the actual date of change, was deemed necessary
in order to attenuate the establishment of overpayments due to the lag
time inherent with our limited functional capabilities. However, VA's
current IT systems now possess features sufficient to handle these
changes and the implementation of claims automation functionality has
significantly reduced claims processing time. As a result, we now feel
that it is appropriate, and more equitable, to begin and discontinue
payments based on the actual date of the status change.
We expect that there will be concern that these changes would
reduce benefits, especially with regard to monthly housing allowances
now being discontinued on the date of entry on active duty as opposed
to the end of the month. However, we would like to note that our policy
to pay the monthly housing allowance until the end of the month of
entry onto active duty service has always been balanced by our policy
to not resume payment of the monthly housing allowance until the 1st
day of the month following the date on which the individual was
discharged. In addition, section 113 of Public Law 115-48 and section
501(c) of Public Law 115-62 also amended section 3313 to ensure equal
treatment for all people leaving active duty, regardless of component
and ensures proration of everyone's housing on the day the individual
enters and leaves active duty service, effective August 1, 2018.
Furthermore, although Sec. Sec. 21.9626 and 21.9636 appear under
headings that state the provisions of each section will be effective
for any claim submitted after July 31, 2011, this date would not apply
to proposed Sec. 21.9626(k) or Sec. 21.9636(b), (d), or (n). These
amended provisions would not be a result of Public Law 111-377,
therefore, the effective dates as set for the Improvement Act
provisions do not apply. The effective date for these sections would be
the effective date of the final rule implementing them. These
exceptional effective dates are explicitly included in the proposed
text of each section. Additionally, it should be noted that current
Sec. 21.9625(k) explicitly provides for separate beginning date rules
for tuition and fees, monthly housing allowance, and book and supply
stipends. These distinct rules were necessary under the statutory
structure that existed prior to Public Law 111-377 where tuition and
fee payments for active duty servicemembers were different than for
veterans and dependents. However, Public Law 111-377 removed the
distinctions. VA now pays tuition and fee and book and supply stipends,
as required by Public Law 111-377, in the same manner for all
beneficiaries, regardless of active duty status. Therefore, the
standard rules for beginning dates contained in the proposed Sec.
21.9625(a) apply for all payments except monthly housing payments with
regards to active duty servicemembers. The only special beginning dates
rules that are needed for active duty servicemembers are those for
monthly housing payments contained in proposed Sec. 21.9625(k).
Lastly, we propose to add Sec. 21.9636(a)(4), which would change
the discontinuance-date rule for non-lump sum payments (e.g., monthly
housing allowance) in death cases. We propose to discontinue payment
effective the date of death. Our current rule, in Sec. 21.9635(a),
provides that if an individual dies before the end of the period
covered by the lump sum payment, the discontinuance date of educational
assistance for the purpose of the lump sum payment will be the last
date of the period covered by the lump sum payment. This current
regulation also specifies that for all other payments, if the eligible
individual dies while pursuing a program of education, the
discontinuance date of educational assistance will be the end of the
month during which the individual last attended. The change to
discontinue payment effective the date the individual dies is necessary
because, upon death, the student terminates his or her attendance and,
therefore, is no longer entitled to further payments. These payments,
unlike lump sum payments, would not be made at the time of student's
death and, therefore, deserve to be treated differently than lump sum
payments because there is no reason for us to make a payment after it
is already known that the payment is not authorized.
II. Fry Scholarship
a. General
On June 24, 2009, the President signed into law the Supplemental
Appropriations Act, 2009, Public Law 111-32. Section 1002 of Public Law
111-32 amended 38 U.S.C. chapter 33 (the Post-9/11 GI Bill) by adding
38 U.S.C. 3311(b)(9), effective August 1, 2009, to extend eligibility
for educational assistance under chapter 33 to children of members of
the Armed Forces who, on or after September 11, 2001, die in line of
duty while on active duty. The educational assistance payable for such
individuals' pursuit of programs of education under chapter 33 is known
as the ``Marine Gunnery Sergeant John David Fry Scholarship'' (Fry
Scholarship). 38 U.S.C. 3311(f)(1). Although this amendment extending
eligibility for chapter 33 educational assistance was effective August
1, 2009, section 1002(d)(2) of Public Law 111-32 allowed VA to begin
making payments of educational assistance by not later than August 1,
2010. For individuals entitled to educational assistance between August
1, 2009, and July 31, 2010, section 1002(d)(2) requires VA to make
retroactive payments. Accordingly, the changes implementing the Fry
Scholarship would be applicable to claims received on or after August
1, 2009, and we propose to make retroactive payments for the period
between August 1, 2009, and July 31, 2010, on any allowed claim
received on or after August 1, 2009. This proposed rule would amend 38
CFR part 21, subpart P, specifically Sec. Sec. 21.9520(d), 21.9530(f),
21.9626(o), 21.9640(a)(2), and 21.9700(b), to implement the Fry
Scholarship.
[[Page 33689]]
b. Rules Required by Public Law 111-32
1. Definition of ``Child''
According to the amendment to 38 U.S.C. 3311(f)(2) made by section
1002(a) of Public Law 111-32, for purposes of paying the Fry
Scholarship, the term ``child'' must ``include'' married individuals
and individuals above 23 years of age. We believe Congress intended for
VA to apply current law and regulations defining ``child'' for VA
benefit purposes to eligibility determinations for the Fry Scholarship
and include children who are married and/or above 23 years of age.
Accordingly, for purposes of the Fry Scholarship, we propose to define
``child'' in Sec. 21.9520(d) as an individual who meets the
requirements of 38 CFR 3.57, (implementing the definition of ``child''
in 38 U.S.C. 101(4)), except for the requirements in Sec. 3.57
pertaining to age and marital status. With regard to age and marital
status, we propose to add Sec. 21.9520(d)(1) and (2) to include in the
definition of child, for purposes of eligibility for the Fry
Scholarship, individuals who are married or over the age of 23. In
proposed Sec. 21.9520(d), we propose to include that eligibility to
Fry Scholarship will be for the child of a person who, after September
10, 2001, died in the line of duty while serving on active duty as a
member of the Armed Forces.
2. Effective Date and Entitlement Beginning and Ending Dates
Section 1002(b) of Public Law 111-32 amended 38 U.S.C. 3313(c)(1)
to provide individuals entitled to a Fry Scholarship the full amount of
tuition and fees for pursuit of a program of education. We propose to
add paragraph (2) to Sec. Sec. 21.9640(a) and 21.9641(a) to explain
that we will pay 100 percent of the maximum amounts payable for pursuit
of an approved program of education by an individual who is eligible
for a Fry Scholarship under Sec. 21.9520(d).
Section 1002(c) amended 38 U.S.C. 3321(b) to specify that an
individual who first becomes entitled to the Fry Scholarship before
January 1, 2013, may use the entitlement until ``the end of the 15-year
period beginning on the date of [the individual's] eighteenth
birthday,'' i.e., until age 33. We believe that the reference to an
individual's 18th birthday in section 3321(b)(4) is intended only as a
point in time used in determining the future ending date of the
individual's entitlement, rather than the age at which an individual
becomes eligible for the Fry Scholarship. Section 3321 speaks only of
the period during which an individual ``may use'' his or her
entitlement, not the date an individual may first be entitled to
chapter 33 benefits. Section 3311 lists the individuals who meet the
criteria for entitlement to chapter 33 educational assistance. Section
3311(b)(9) states that ``a child or spouse of a person who, on or after
September 11, 2001, dies in line of duty while serving on active duty
as a member of the Armed Forces'' is entitled to chapter 33 educational
assistance; however, this section does not specify when such individual
may first be entitled to chapter 33 benefits. In light of the lack of a
specified beginning date of eligibility and given the fact that
individuals can pursue a program of education at an institution of
higher learning before reaching the age of 18, we believe a reasonable
beginning date would be either when a child graduates from high school
and receives a high school diploma, even if the child may not have
turned 18, or when the child turns 18, whichever is earlier.
This interpretation of 38 U.S.C. 3321(b)(4) is consistent with our
interpretation of other provisions of 38 U.S.C. 3321 when we have
interpreted the statute in a manner that injects a logical beginning
date when one is lacking. For example, for an individual who was last
discharged or released from active duty before January 1, 2013, section
3321 specifies that entitlement to chapter 33 educational assistance
expires at the end of the 15-year period beginning on the date of an
individual's last discharge or release from active duty of at least 90
continuous days or discharge or release from active duty of at least 30
continuous days for a service-connected disability. See 38 U.S.C.
3321(a)(1), (b)(3). Section 3321, however, does not address the period
of eligibility for individuals who are entitled to educational
assistance based on a minimum of 90 aggregate days of active duty
service who do not have a period of service consisting of 90 continuous
days, as we stated in the preamble to proposed Sec. 21.9530(b). 73 FR
78876, 78879-80. In Sec. 21.9530(b), we established a 15-year period
of eligibility for these individuals, beginning on the date of
discharge or release from active duty for the last period of service
used to meet the minimum service requirements under chapter 33.
Likewise, we propose to establish a reasonable beginning date for
the period during which a child may use his or her entitlement to
chapter 33 educational assistance as either the child's 18th birthday
or upon attainment of a high school diploma, whichever is earlier. We
propose to codify our interpretation pertaining to beginning dates of a
child's eligibility in Sec. 21.9626(o) and ending dates of a child's
eligibility in Sec. 21.9530(f). In Sec. 21.9626(o), we propose to
provide that the earliest beginning date of educational assistance for
a child eligible for Fry Scholarship will be the earlier of either the
date the child completes the requirements of a secondary school diploma
(or an equivalency certificate) or the date the child reaches age 18.
In Sec. 21.9530(f), we propose to state that the ending date for a
child who first becomes eligible for Fry Scholarship before January 1,
2013, is the date the child turns age 33. For a child who first becomes
eligible to Fry Scholarship on or after January 1, 2013, we propose to
provide that their eligbility to Fry Scholarship never expires.
We recognize that our interpretation means that a child may use the
Fry Scholarship for a period that may exceed 15 years if the child
begins an approved course of education before age 18. Nonetheless, our
interpretation does not change the number of months of entitlement to
chapter 33 educational assistance. Under 38 U.S.C. 3312(a), a child is
entitled to a maximum of 36 months of educational assistance. Reading
38 U.S.C. 3312(a) and 3321(b)(4) together, we believe Congress intended
that a Fry Scholarship be provided for a maximum of 36 months to any
child of an individual who died in line of duty while on active duty in
the Armed Forces after September 10, 2001, to pursue an approved
program of education as long as the child has not reached 33 years of
age. Section 112(b) of Public Law 115-48 further amended 38 U.S.C.
3321(b)(4) to extend the time for use of entitlement of chapter 33
educational assistance indefinitely for children who first become
entitled to a Fry scholarship on or after January 1, 2013. Therefore,
Sec. 21.9530(f) would say, in the case of a child who first becomes
entitled before January 1, 2013, benefits shall expire the day the
child turns 33; or in the case of a child who first becomes entitled on
or after January 1, 2013, benefits shall not expire.
3. Yellow Ribbon Program
Section 5003(a)(1) of Public Law 110-252 added 38 U.S.C. 3317
establishing the ``Yellow Ribbon G.I. Education Enhancement Program''
(Yellow Ribbon Program), which provides for enhancements to the
educational assistance provided under 38 U.S.C. 3313. The final
sentence of section 3317(a), as added by Public Law 110-252, provided
that ``[t]he program shall only apply to covered individuals described
in paragraphs (1) and (2) of section 3311(b).'' Although Congress, in
Public Law 111-32, made specific
[[Page 33690]]
amendments to some provisions in chapter 33 concerning individuals
entitled to Fry Scholarship benefits, it did not amend section 3317(a)
to add a reference to section 3311(b)(9) to allow individuals entitled
to Fry Scholarship benefits to be eligible for enhanced educational
assistance under the Yellow Ribbon Program. Therefore, we could not
provide enhanced educational assistance under this program to such
individuals. Subsequently, with the enactment of Public Law 115-48,
Congress amended section 3317(a), effective August 1, 2018, adding a
reference to section 3311(b)(9), to explicitly apply the Yellow Ribbon
Program to individuals entitled to Fry Scholarship benefits.
Accordingly, we propose to amend 38 CFR 21.9700(b) to make clear that
contributions under the Yellow Ribbon Program are available to
individuals who establish eligibility for the Fry Scholarship under new
Sec. 21.9520(d) after August 1, 2018.
Executive Orders 12866 and 13563 and 14094
Executive Orders 12866 and 13563 and 14094 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 is a significant rule under Executive Order 12866,
Section 3(f)(1), as amended by Executive Order 14094. 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
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 regulatory
action would affect some small entities, such as testing organizations
or educational institutions who qualify as ``small'' using the most
recent official revenue standards, the economic impact on them would be
minor. Educational institutions of all sizes voluntarily apply for
approval to receive GI Bill benefits likely because tuition and fees
revenue from student Veterans consists of guaranteed government funding
(from U.S. taxpayer funds). However, if the cost for smaller
educational institutions applying for GI Bill approval and meeting the
requirements for continued approval were substantial, participating in
the GI Bill program would not be financially viable. Because the
policies memorialized in this regulatory action have been in effect for
a long period of time and small institutions continue to seek and
maintain GI Bill approval, likely profiting from this status, we
conclude that the rules and policies in this regulatory action do not
significantly impact these entities. Furthermore, realizing that there
are costs to educational institutions associated with their
participation in GI Bill programs, Congress enacted 38 U.S.C. 3684,
increasing the reporting fee payable to testing organizations and
educational institutions for carrying out reporting requirements,
consequently further minimizing the economic impact on smaller
educational and testing organizations. On this basis, the Secretary
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. Therefore, under 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 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 given year. This proposed rule would have no such
effect on State, local, and tribal governments, or on the private
sector.
Paperwork Reduction Act of 1995
This proposed rule includes provisions constituting revised
collections of information under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 through 3521) that require 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 and
approval.
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. If OMB does not approve the
collection of information as requested, VA will immediately remove the
provisions containing the collection of information or take such other
action as is directed by OMB.
Comments on the revised collections of information contained in
this rulemaking should be submitted through <a href="http://www.regulations.gov">www.regulations.gov</a>.
Comments should indicate that they are submitted in response to ``RIN
2900-AQ88, Post-9/11 Improvements, Fry Scholarship, and Interval
Payments Amendments'' and should be sent within 60 days of publication
of this rulemaking. The collections of information associated with this
rulemaking can be viewed at: <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>.
OMB is required to make a decision concerning the collection of
information contained in this rulemaking between 30 and 60 days after
publication of this rulemaking in the Federal Register (FR). 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 provisions of this
rulemaking.
The Department considers comments by the public on a revised
collection of information in--
<bullet> Evaluating whether the revised collection of information
are 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 revised 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 collections of information associated with this rulemaking
contained in 38 CFR are described immediately following this paragraph,
under its respective title.
Title: State Approving Agency Reports and Notices.
OMB Control No: 2900-0051.
CFR Provision: 38 CFR 21.4259(b).
[[Page 33691]]
Summary of collection of information: The collection of information
in proposed 38 CFR 21.4259(b) would require State approving agencies
(SAAs) who approve, disapprove, or suspend programs of education to
prepare notices of approval to inform educational institutions,
training establishments, and organizations or entities of the approval,
disapproval, or suspension of their courses, training, or tests, and
submit to VA copies of the notices for each program of education that
is suspended or disapproved.
Description of need for information and proposed use of
information: The collection of information is necessary to ensure
programs of education are operating appropriately. VA will use the
approval notice information to determine if payment of educational
assistance is appropriate.
Description of likely respondents: State approving agencies.
Estimated total number of respondents: 57 in FY 2024.
Estimated total number of responses: 4,707 in FY 2024.
Estimated frequency of responses: Annual.
Estimated average burden per response: 15 total hours.
Estimated total annual reporting and recordkeeping burden: VA
estimates the total annual reporting and recordkeeping burden to be
70,605 burden hours. Using the annual number of responses 4,707, VA
estimates a total annual reporting and recordkeeping burden of 70,605
for respondents.
Estimated cost to respondents per year: There is no cost to the
respondents because, by contract, SAAs are reimbursed for submitting
this information.
Title: Application for VA Education Benefits (VA Form 22-1990).
OMB Control No: 2900-0154.
CFR Provision: 38 CFR 21.9505, 21.9506, 21.9520(c), 21.9570,
21.9571, 21.9636(w), 21.9641(b)(3), 21.9691(h), and 21.9700(b).
Summary of collection of information: The collection of information
in proposed 38 CFR 21.9505, 21.9506, 21.9520(c), 21.9570, 21.9571,
21.9636(w), 21.9641(b)(3), 21.9691(h), and 21.9700(b) would require the
following individuals to submit an application for VA education
benefits to establish their eligibility:
<bullet> Reserve and National Guard members (38 CFR 21.9505,
21.9506)
<bullet> Individuals eligible for Montgomery GI Bill--Active Duty
(chapter 30), Montgomery GI Bill--Selected Reserve (chapter 1606), and
Reserve Educational Assistance Program (chapter 1607) who want to
relinquish their eligibility to establish eligibility under the Post-9/
11 GI Bill (chapter 33) (38 CFR 21.9520(c))
<bullet> Individuals who train with the U.S. Public Health Service
and the National Oceanic and Atmospheric Administration who want to
transfer Post-9/11 GI Bill benefits to dependents (38 CFR 21.9570,
21.9571)
<bullet> Individuals receiving chapter 33 benefits and who are
eligible for 10 U.S.C. chapter 106a, 1606, or 1607, 10 U.S.C. 510, 38
U.S.C. chapter 30, 31, 32, or 35 or Hostage Relief Act of 1980 benefits
who want to receive educational assistance under another program (38
CFR 21.9636(w))
<bullet> Students pursuing a non-college degree program at a non-
IHL (38 CFR 21.9641(b)(3))
<bullet> Individuals eligible under multiple programs (38 U.S.C.
chapter 30, 32, or 33 or 10 U.S.C. chapter 1606 or 1607) who must elect
under which authority service is to be credited (38 CFR 21.9691(h))
<bullet> Individuals eligible for the Fry Scholarship who want to
apply for Yellow Ribbon Program benefits (38 CFR 21.9700(b))
Description of need for information and proposed use of
information: The collection of information is necessary to pay
benefits. This information collected will be used by VA to determine an
individual's eligibility for educational assistance benefits.
Description of likely respondents: Individuals.
Estimated number of respondents: 810,000 in FY 2024.
Estimated frequency of responses: Once.
Estimated average burden per response: 20 minutes (<a href="http://VA.gov">VA.gov</a>); 15
minutes (paper).
Estimated total annual reporting and recordkeeping burden: VA
estimates the total annual reporting and recordkeeping burden to be
249,750 burden hours. Using the annual number of responses 810,000
(567,000 responses at 20 minutes/response; 243,000 responses at 15
minutes/response), VA estimates a total annual reporting and
recordkeeping burden of 249,750 for respondents.
Estimated cost to respondents per year: VA estimates the annual
cost to respondents to be $6,995,498 (567,000 applicants (using
<a href="http://Vets.gov">Vets.gov</a>) per year x 20 minutes per application x $28.01 * = 5,293,890)
and (243,000 (using paper form) per year x 15 minutes per application x
$28.01 * = 1,701,608).
* To estimate the total information collection burden cost, VA used
the 2021 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/oesnat.htm#15-0000">https://www.bls.gov/oes/current/oesnat.htm#15-0000</a>.
Title: Dependents' Application for VA Education Benefits.
OMB Control No: 2900-0098.
CFR Provision: 38 CFR 21.9520(d), 21.9530(f), 21.9691(e),
21.9691(h).
Summary of collection of information: The collection of information
in proposed 38 CFR 21.9520(d), 21.9530(f), 21.9691(e), and 21.9691(h)
would require certain children to submit an application to establish
eligibility for the Fry Scholarship, and certain individuals who must
elect the Fry Scholarship or either Dependency and Indemnity
Compensation (DIC) or Survivors' and Dependents' Educational Assistance
(DEA) to submit an application to establish eligibility for the elected
benefit.
Description of need for information and proposed use of
information: The collection of information is necessary to pay
benefits. The information collected will be used by VA to determine an
individual's eligibility for the Fry scholarship, DIC, or DEA.
Description of likely respondents: Individuals.
Estimated total number of respondents: 63,807 in FY 2024.
Estimated frequency of responses: Once.
Estimated average burden per response: 45 minutes.
Estimated total annual reporting and recordkeeping burden: VA
estimates the total annual reporting and recordkeeping burden to be
47,855 burden hours. Using the annual number of responses 63,807, VA
estimates a total annual reporting and recordkeeping burden of 47,855
hours for respondents.
Estimated cost to respondents per year: VA estimates the annual
cost to respondents to be $1,340,419 (63,807 respondents per year x 45
minutes per application x $28.01*).
* To estimate the total information collection burden cost, VA used
the 2021 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/oesnat.htm#15-0000">https://www.bls.gov/oes/current/oesnat.htm#15-0000</a>.
Title: Application for Reimbursement of a National Exam Fee.
OMB Control No: 2900-0706.
CFR Provision: 38 CFR 21.9626(a)(3), 21.9668, 21.9681(b)(5).
Summary of collection of information: The collection of information
in proposed 38 CFR 21.9626(a)(3), 21.9668, 21.9681(b)(5) would require
individuals to submit a claim and supporting
[[Page 33692]]
documentation to be reimbursed for the cost of a national test for
admission or a national test for credit.
Description of need for information and proposed use of
information: The collection of information is necessary to pay
benefits. The information collected will be used by VA to determine if
an individual is eligible to receive reimbursement for a claimed
national test, and to determine the amount of the reimbursement.
Description of likely respondents: Individuals.
Estimated total number of respondents: 310 in FY 2024.
Estimated frequency of responses: Once.
Estimated average burden per response: 15 minutes.
Estimated total annual reporting and recordkeeping burden: VA
estimates the total annual reporting and recordkeeping burden to be 78
burden hours. Using the annual number of responses 310, VA estimates a
total annual reporting and recordkeeping burden of 78 hours for
respondents.
Estimated cost to respondents per year: VA estimates the annual
cost to respondents to be $2,185 (310 respondents per year x 15 minutes
per application x $28.01 *).
* To estimate the total information collection burden cost, VA used
the 2021 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/oesnat.htm#15-0000">https://www.bls.gov/oes/current/oesnat.htm#15-0000</a>.
Title: Application for Reimbursement of Licensing and Certification
Fees.
OMB Control No: 2900-0695.
CFR Provision: 38 CFR 21.9667.
Summary of collection of information: The collection of information
in proposed 38 CFR 21.9667 would require individuals to submit a claim
to be reimbursed for the cost of licensing and certification tests.
Description of need for information and proposed use of
information: The collection of information is necessary to pay
benefits. The information collected will be used by VA to determine if
an individual is eligible to receive reimbursement for a licensing and
certification test, and to determine the amount of the reimbursement.
Description of likely respondents: Individuals.
Estimated total number of respondents: 4,210 in FY 2024.
Estimated total number of responses: 12,630 in FY 2024.
Estimated frequency of responses: On occasion. (3 responses per
year).
Estimated average burden per response: 15 minutes.
Estimated total annual reporting and recordkeeping burden: VA
estimates the total annual reporting and recordkeeping burden to be
3,158 burden hours. Using the annual number of responses 12,630, VA
estimates a total annual reporting and recordkeeping burden of 3,158
hours for respondents.
Estimated cost to respondents per year: VA estimates the annual
cost to respondents to be $88,456 (12,630 responses per year x 15
minutes per application x $28.01 *).
* To estimate the total information collection burden cost, VA used
the 2021 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/oesnat.htm#15-0000">https://www.bls.gov/oes/current/oesnat.htm#15-0000</a>.
Title: Monthly Certification for On-the-Job Training and
Apprenticeship.
OMB Control No: 2900-0178.
CFR Provision: 38 CFR 21.9626(c).
Summary of collection of information: The collection of information
in proposed 38 CFR 21.9626(c) would require students pursuing on-the-
job and apprenticeship programs at non-institutions of higher learning
(IHLs) to submit monthly certifications to receive payment for such
pursuit.
Description of need for information and proposed use of
information: The collection of information is necessary to pay
benefits. The information collected will be used to determine whether
an individual's educational assistance should be continued without
change, amended, or terminated, and to determine the effective date of
such continuance, amendment, or termination.
Description of likely respondents: Individuals.
Estimated total number of respondents: 15,900 in FY 2024.
Estimated total number of responses: 190,800 in FY 2024.
Estimated frequency of responses: Monthly.
Estimated average burden per response: 10 minutes.
Estimated total annual reporting and recordkeeping burden: VA
estimates the total annual reporting and recordkeeping burden to be
31,800 burden hours. Using the annual number of responses 190,800, VA
estimates a total annual reporting and recordkeeping burden of 31,800
for respondents.
Estimated cost to respondents per year: VA estimates the annual
cost to respondents to be $890,718 (190,800 responses per year x 10
minutes per application x $28.01 *).
* To estimate the total information collection burden cost, VA used
the 2021 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/oesnat.htm#15-0000">https://www.bls.gov/oes/current/oesnat.htm#15-0000</a>.
Title: Monthly Certification for Flight Training.
OMB Control No: 2900-0162.
CFR Provision: 38 CFR 21.9641(b)(5).
Summary of collection of information: The collection of information
in proposed 38 CFR 21.9641(b)(5) would require students pursuing flight
training programs at non-IHLs to submit monthly certifications to
receive payment for such pursuit.
Description of need for information and proposed use of
information: The collection of information is necessary to pay
benefits. The information collected will be used to determine whether
the individual's educational assistance should be continued without
change, amended, or terminated, and to determine the effective date of
such continuance, amendment, or termination.
Description of likely respondents: Individuals.
Estimated total number of respondents: 3,900 in FY 2024.
Estimated total number of responses: 23,400 in FY 2024.
Estimated frequency of responses: On occasion. (6 responses
annually).
Estimated average burden per response: 30 minutes.
Estimated total annual reporting and recordkeeping burden: VA
estimates the total annual reporting and recordkeeping burden to be
11,700 burden hours. Using the annual number of responses 23,400, VA
estimates a total annual reporting and recordkeeping burden of 11,700
hours for respondents.
Estimated cost to respondents per year: VA estimates the annual
cost to respondents to be $327,717 (23,400 responses per year x 30
minutes per application x $28.01*).
* To estimate the total information collection burden cost, VA used
the 2021 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/oesnat.htm#15-0000">https://www.bls.gov/oes/current/oesnat.htm#15-0000</a>.
Title: Certification of Lessons Completed.
OMB Control No: 2900-0353.
CFR Provision: 38 CFR 21.9641(b)(6).
Summary of collection of information: The collection of information
in proposed 38 CFR 21.9641(b)(6) would
[[Page 33693]]
require students pursuing correspondence training programs at non-IHLs
to submit certification of lessons completed to receive payment for
such pursuit.
Description of need for information and proposed use of
information: The collection of information is necessary to pay
benefits, which in the case of correspondence training, are based on
the number of lessons completed. The information collected will be used
by VA to determine the amount of educational assistance to be paid.
Description of likely respondents: Individuals.
Estimated total number of respondents: 154 in FY 2024.
Estimated total number of responses: 616 in FY 2024.
Estimated frequency of responses: Quarterly.
Estimated average burden per response: 10 minutes.
Estimated total annual reporting and recordkeeping burden: VA
estimates the total annual reporting and recordkeeping burden to be 103
burden hours. Using the annual number of responses 616, VA estimates a
total annual reporting and recordkeeping burden of 103 hours for
respondents.
Estimated cost to respondents per year: VA estimates the annual
cost to respondents to be $2,885 (616 responses per year x 10 minutes
per application x $28.01 *).
* To estimate the total information collection burden cost, VA used
the 2021 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/oesnat.htm#15-0000">https://www.bls.gov/oes/current/oesnat.htm#15-0000</a>.
Title: Certification of Affirmation of Enrollment Agreement
Correspondence Course.
OMB Control No: 2900-0576.
CFR Provision: 38 CFR 21.9641(b)(6).
Summary of collection of information: The collection of information
in proposed 38 CFR 21.9641(b)(6) would require students pursuing
correspondence training programs at non-IHLs to submit an affirmation
of enrollment in a correspondence course to receive payment for such
pursuit.
Description of need for information and proposed use of
information: The collection of information is necessary to pay
benefits. The information collected will be used by VA to ensure an
individual is enrolled in a correspondence course following the signing
of a contract.
Description of likely respondents: Individuals.
Estimated total number of respondents: 75 in FY 2024.
Estimated frequency of responses: Annually.
Estimated average burden per response: 3 minutes.
Estimated total annual reporting and recordkeeping burden: VA
estimates the total annual reporting and recordkeeping burden to be 4
burden hours. Using the annual number of responses 75, VA estimates a
total annual reporting and recordkeeping burden of 4 hours for
respondents.
Estimated cost to respondents per year: VA estimates the annual
cost to respondents to be $112 (75 responses per year x 3 minutes per
application x $28.01 *).
* To estimate the total information collection burden cost, VA used
the 2021 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/oesnat.htm#15-0000">https://www.bls.gov/oes/current/oesnat.htm#15-0000</a>.
Title: VA Enrollment Certification.
OMB Control No: 2900-0073.
CFR Provision: 38 CFR 21.9681(b)(1); 21.9721.
Summary of collection of information: The collection of information
in proposed 38 CFR 21.9681(b)(1) and 21.9721 would require an
educational institution to certify a student's enrollment in an
approved program of education (other than a student seeking
reimbursement for taking an approved licensure or certification test or
a national test).
Description of need for information and proposed use of
information: The collection of information is necessary to ensure a
student is properly enrolled in an approved program of education before
making any payments of educational assistance benefits. VA will use the
information collected on VA Form 22-1999 to determine the amount of
educational benefits payable to an individual during a period of
enrollment or training.
Description of likely respondents: Individuals.
Estimated total number of respondents: 7,581,273 in FY 2024.
Estimated total number of responses: 15,162,546 in FY 2024.
Estimated frequency of responses: On occasion. (2 responses per
year).
Estimated average burden per response: 10 minutes.
Estimated total annual reporting and recordkeeping burden: VA
estimates the total annual reporting and recordkeeping burden to be
2,527,091 burden hours. Using the annual number of responses
15,162,546, VA estimates a total annual reporting and recordkeeping
burden of 2,527,091 hours for respondents.
Estimated cost to respondents per year: VA estimates the annual
cost to respondents to be $70,783,819 (15,162,546 responses per year x
10 minutes per application x $28.01 *).
* To estimate the total information collection burden cost, VA used
the 2021 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/oesnat.htm#15-0000">https://www.bls.gov/oes/current/oesnat.htm#15-0000</a>.
Title: Yellow Ribbon Program Agreement.
OMB Control No: 2900-0718.
CFR Provision: 38 CFR 21.9700(b).
Summary of collection of information: The collection of information
in proposed 38 CFR 21.9700(b) would include individuals who establish
eligibility for the Fry Scholarship to receive benefits under the
Yellow Ribbon Program.
Description of need for information and proposed use of
information: The collection of information is necessary to provide IHLs
with the opportunity to indicate their participation in the Yellow
Ribbon Program and to allow IHLs to indicate the maximum number of
students that will receive benefits under the program. VA will use the
information collected to determine which IHLs will be participating in
the Yellow Ribbon Program, the maximum number of individuals for whom
the IHL will make contributions in any given academic year, and the
maximum dollar amount of outstanding established charges that will be
waived for each student based on student status (i.e., undergraduate,
graduate, doctoral) or sub-element (i.e., college or professional
school).
Description of likely respondents: Institutions of higher learning.
Estimated total number of respondents: 5,600 in FY 2024.
Estimated frequency of responses: Once.
Estimated average burden per response: 14 hours.
Estimated total annual reporting and recordkeeping burden: VA
estimates the total annual reporting and recordkeeping burden to be
78,400 burden hours. Using the annual number of responses 5,600, VA
estimates a total annual reporting and recordkeeping burden of 78,400
hours for respondents.
Estimated cost to respondents per year: VA estimates the annual
cost to respondents to be $2,195,984 (5,600 responses per year x 14
hours per application x $28.01 *).
[[Page 33694]]
* To estimate the total information collection burden cost, VA used
the 2021 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/oesnat.htm#15-0000">https://www.bls.gov/oes/current/oesnat.htm#15-0000</a>.
Assistance Listing
The Assistance Listing numbers and titles for the programs affected
by this proposed rule are 64.027, Post-9/11 Veterans Educational
Assistance; 64.032, Montgomery GI Bill Selected Reserve; Reserve
Educational Assistance Program; 64.116, Veteran Readiness for Disabled
Veterans; 64.117, Survivors and Dependents Educational Assistance;
64.120, Post-Vietnam Era Veterans' Educational Assistance; and 64.124,
All-Volunteer Force Educational Assistance.
Severability
The purpose of this section is to clarify the agencies' intent with
respect to the severability of provisions of this proposed rule. Each
provision that the agency has proposed is capable of operating
independently. If any provision of this rule is determined by judicial
review or operation of law to be invalid, that partial invalidation
will not render the remainder of this rule invalid. Likewise, if the
application of any portion of this rule to a particular circumstance is
determined to be invalid, the agencies intend that the rule remain
applicable to all other circumstances.
List of Subjects in 38 CFR Part 21
Administrative practice and procedure, Armed forces, Civil rights,
Claims, Colleges and universities, Conflict of interests, Defense
Department, Education, Employment, Grant programs--education, Grant
programs--veterans, Health care, Loan programs--education, Loan
programs--veterans, Manpower training programs, Reporting and
recordkeeping requirements, Schools, Travel and transportation
expenses, Veterans, Vocational education, Veteran readiness.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on February 10, 2023, 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.
Luvenia Potts,
Regulations 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 follows:
PART 21--VETERAN READINESS AND EMPLOYMENT AND EDUCATION
Subpart C--Survivors' and Dependents' Educational Assistance Under
38 U.S.C. Chapter 35
0
1. The authority citation for part 21, subpart C continues to read as
follows:
Authority: 38 U.S.C. 501(a), 512, 3500-3566, and as noted in
specific sections.
0
2. Amend Sec. 21.3022 by:
0
a. In paragraph (i), removing ``and''.
0
b. In paragraph (j), removing the period and adding a semicolon in its
place.
0
c. Adding paragraph (k).
The addition reads as follows:
Sec. 21.3022 Nonduplication--programs administered by VA.
* * * * *
(k) Effective August 1, 2011, 10 U.S.C. 510 (National Call to
Service).
* * * * *
Subpart D--Administration of Educational Assistance Programs
0
3. 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.
Sec. 21.4002 [Amended]
0
4. Amend Sec. 21.4002, in paragraph (a), by removing ``(see Sec. Sec.
19.192 and 19.183 of this chapter.)''.
0
5. Amend Sec. 21.4022 by:
0
a. In paragraph (k), removing the period and adding a semicolon in its
place.
0
b. Adding paragraph (l).
The addition reads as follows:
Sec. 21.4022 Nonduplication--programs administered by VA.
* * * * *
(l) Effective August 1, 2011, 10 U.S.C. 510 (National Call to
Service).
* * * * *
0
6. Amend Sec. 21.4138 by:
0
a. Revising the paragraph heading for paragraph (f).
0
b. Adding paragraph (g).
The revision and addition read as follows:
Sec. 21.4138 Certifications and release of payments.
* * * * *
(f) Payment for intervals and temporary school closings before
August 1, 2011. * * *
* * * * *
(g) Payment for temporary school closings after July 31, 2011. (1)
Subject to paragraph (2), VA may authorize payment for a temporary
school closing that occurs during a certified period of enrollment if
the closing is due to an emergency (including a strike) or established
policy based on an Executive Order of the President.
(2) An individual may not receive more than 4 weeks of payment for
temporary school closings in any 12-month period.
(3) The decision as to whether a school closing is permanent or
temporary will be made by--
(i) The director of the VA regional processing office of
jurisdiction; or
(ii) The Director, Education Service, if the emergency or
established policy based on an Executive Order of the President results
in the closing of schools in the jurisdiction of more than one VA
regional processing office.
(4) A school that disagrees with a decision made under paragraph
(g)(3) of this section may request an administrative review. The review
request must be submitted in writing and received by the director of
the VA regional processing office of jurisdiction, or the Director,
Education Service, whoever made the decision under paragraph (g)(3),
within one year of the date of VA's letter notifying the school of the
decision. A review of the decision will include the evidence of record
and any other pertinent evidence the school may wish to submit. The
affirmation or reversal of the initial decision based on an
administrative review is final. The review will be conducted by the--
(i) Director, Education Service, if the director of the VA regional
processing office of jurisdiction made the initial decision to continue
or discontinue payments.
(ii) Under Secretary for Benefits, if the Director, Education
Service, made the initial decision to continue or discontinue payments.
(Authority: 38 U.S.C. 512, 3680(a))
0
7. Amend Sec. 21.4150 by revising paragraphs (c)(2) and (f) to read as
follows:
Sec. 21.4150 Designation.
* * * * *
(c) * * *
[[Page 33695]]
(2) When VA has approval, disapproval, or suspension authority.
* * * * *
(f)(1) The Secretary is responsible for approving programs of
education offered by any agency or instrumentality of the Federal
Government.
(2)(i) Effective August 1, 2011, subject to sections 21.4201,
21.4203, 21.4251, 21.4252, 21.4253(d)(2) and (d)(3) of this chapter,
the following programs of education are deemed approved--
(A) An accredited standard college degree program offered at a
public or not-for-profit proprietary institution of higher learning
that is accredited by a national or regional agency or organization
recognized for that purpose by the Department of Education.
(B) A flight training course approved by the Federal Aviation
Administration that is offered by a certified pilot school that
possesses a valid Federal Aviation Administration pilot school
certificate or provisional pilot school certificate under 14 CFR part
141.
(C) An apprenticeship program registered with the Office of
Apprenticeship of the Employment Training Administration of the
Department of Labor or a State apprenticeship agency recognized by the
Office of Apprenticeship under 29 U.S.C. 50, et seq.
(D) A program of education leading to a secondary school diploma
offered by a secondary school approved in the State in which it is
operating.
(E) A licensure test offered by a Federal, State, or local
government.
(Authority: 38 U.S.C. 3672(b))
* * * * *
0
8. Amend Sec. 21.4151 by:
0
a. In paragraph (b)(5), removing ``and''.
0
b. Redesignating paragraph (b)(6) as (b)(7).
0
c. Adding new paragraph (b)(6).
The addition reads as follows:
Sec. 21.4151 Cooperation.
* * * * *
(b) * * *
(6) Effective August 1, 2011, performing compliance and risk-based
surveys and oversight (in accordance with the provisions in the State
approving agency contract) without regard to whether the Secretary or
the State approving agency approved the courses offered at the
educational institution or the courses were deemed approved; and
* * * * *
0
9. Amend Sec. 21.4200 by adding paragraphs (mm), (nn), and (oo) to
read as follows:
Sec. 21.4200 Definitions.
* * * * *
(mm) National test for admission. A national test for admission is
a test used for admission to an institution of higher learning or
graduate school (such as the Scholastic Aptitude Test (SAT), Law School
Admission Test (LSAT), Graduate Record Exam (GRE), and Graduate
Management Admission Test (GMAT)). A list of national tests approved by
VA can be found at: <a href="http://inquiry.vba.va.gov/weamspub/buildSearchNE.do">http://inquiry.vba.va.gov/weamspub/buildSearchNE.do</a>.
(Authority: 38 U.S.C. 3452(b), 3315A, 3501(a)(5))
(nn) National test for credit. A national test for credit is a test
that provides an opportunity for course credit at an institution of
higher learning (such as the Advanced Placement (AP) exam and College-
Level Examination Program (CLEP)). A list of national tests approved by
VA can be found at: <a href="http://inquiry.vba.va.gov/weamspub/buildSearchNE.do">http://inquiry.vba.va.gov/weamspub/buildSearchNE.do</a>.
(Authority: 38 U.S.C. 3452(b), 3315A, 3501(a)(5))
(oo) We, us, our. When we use the terms we, us, or our, we mean the
United States Department of Veterans Affairs.
0
10. Amend Sec. 21.4206 by revising the introductory text, paragraphs
(b) and (e) to read as follows:
Sec. 21.4206 Reporting fee.
VA will pay annually to each educational institution furnishing
education or to each joint apprenticeship training committee acting as
a training facility under 10 U.S.C. 510, chapter 1606, or chapter 1607
or 38 U.S.C. 30, 32, 33, 35, or 36 a reporting fee for required reports
or certifications. The reporting fee will be paid as soon as feasible
after the end of the calendar year.
* * * * *
(b) In computing the reporting fee, VA will not count an eligible
individual whose only receipt of educational assistance during a
calendar year was tuition assistance Top-Up under 38 U.S.C. chapter 30,
a rural relocation payment, or reimbursement for a national test for
admission, national test for credit, or a licensing or certification
test.
* * * * *
(e) Before VA will pay a reporting fee, an educational institution
must certify that--
(1) It has exercised reasonable diligence in determining whether it
or any courses approved for VA education benefits offered by it meet
all the applicable requirements of 10 U.S.C. 510, chapter 1606, or
chapter 1607 or 38 U.S.C. 30, 32, 33, 35, or 36;
(2) It will, without delay, report any failure to meet any
requirement to VA; and
(3) The reporting fees received after January 4, 2011, will be used
solely for the purpose of making certifications for VA educational
assistance under 10 U.S.C. 510, chapter 1606, or chapter 1607 or 38
U.S.C. 30, 32, 33, 35, or 36 or for supporting programs for veterans.
(Authority: 10 U.S.C. 510, 16136, 16166; 38 U.S.C. 3034, 3241(a),
3323(a), 3684(c))
0
11. Amend Sec. 21.4235 by:
0
a. Revising paragraph (a) introductory text and the authority citation
following paragraph (a)(3).
0
b. Removing paragraph (b).
0
c. Redesignating paragraphs (c) through (f) as (b) through (e).
0
d. In newly redesignated paragraph (b)(5), removing ``(c)(2)'' and
adding in its place ``(b)(2)''.
0
e. In newly redesignated paragraph (e), removing ``chapter 1606 or 38
U.S.C. chapter 30, 32, or 35'' and adding in its place ``chapter 1606
or 1607 or 38 U.S.C. chapter 30, 32, 33, or 35''; removing ``(a)(2)
through (d)'' and adding in its place ``(a)(2) through (c)''; and
removing ``paragraph (f)(1)'' and adding in its place ``paragraph
(e)(1)''.
0
f. Revising the authority citation following newly redesignated
paragraph (e)(2).
The revisions read as follows:
Sec. 21.4235 Programs of education that include flight training.
* * * * *
(a) An individual who is otherwise eligible to receive educational
assistance under 38 U.S.C. chapters 30, 32, or 33, or a reservist
eligible for educational assistance under 10 U.S.C. chapters 1606 or
1607, may receive educational assistance for flight training in an
approved program of education provided that the individual meets the
requirements of this paragraph. Except when enrolled in a ground
instructor certification course or when pursuing flight training under
paragraph (e) of this section, the individual must--
* * * * *
(3) * * *
(Authority: 10 U.S.C. 16136(c), 16166(c); 38 U.S.C. 3034(d),
3241(b), 3313(g), 3323(a))
* * * * *
(e) * * *
(2) * * *
(Authority: 10 U.S.C. 16136, 16166; 38 U.S.C. 3002(3)(A),
3034(a)(3), 3202(2)(A), 3241, 3301(3), 3323(a)).
* * * * *
[[Page 33696]]
0
12. Amend Sec. 21.4253 by revising paragraph (a) introductory text and
the authority citation following paragraph (a)(5) to read as follows:
Sec. 21.4253 Accredited Courses.
(a) General. All standard college degree courses offered at
proprietary for-profit institutions and non-college degree courses
offered at proprietary for-profit institutions and public or
proprietary not-for-profit institutions may be approved as accredited
courses if they meet one of the following criteria:
* * * * *
(5) * * *
(Authority: 38 U.S.C. 501(a), 3323(c) 3675(a))
* * * * *
0
13. Amend Sec. 21.4259 by revising paragraphs (a) and (b) to read as
follows:
Sec. 21.4259 Suspension or disapproval.
(a) The appropriate State approving agency or the Secretary
(whichever entity approved the program), after approving a program of
education or licensing or certification test--
(1) May suspend the approval of a program of education for new
enrollments or for a licensing or certification test for a period not
to exceed 60 days to allow the institution to correct any deficiencies
if the evidence of record establishes that the program of education or
licensing or certification test fails to meet any of the requirements
for approval.
(2) Will immediately disapprove the program of education or
licensing or certification test if any of the requirements for approval
are not being met and the deficiency cannot be corrected within a
period of 60 days.
(b) Notification of suspension or disapproval. (1) Upon suspension
or disapproval, the State approving agency or the Secretary, whichever
suspended or disapproved the program of education, will notify the
educational institution by certified or registered letter with a return
receipt secured. It is incumbent upon the State approving agency or the
Secretary to determine the conduct of the program of education and to
take immediate appropriate action in each case in which it is found
that the conduct of the program of education in any manner fails to
comply with the requirements for approval.
(2)(i) Each State approving agency will immediately notify VA of
each program of education or licensing and certification test that it
has suspended or disapproved.
(ii) The Secretary will immediately notify the appropriate State
approving agency of each program of education or licensing and
certification test that it has suspended or disapproved.
(Authority: 38 U.S.C. 3679, 3689)
* * * * *
0
14. Amend Sec. 21.4263 by revising paragraph (a) to read as follows:
Sec. 21.4263 Approval of flight training courses.
(a)(1) A flight program may be approved if--
(i)(A) For 38 U.S.C. chapters 32 and 35 and 10 U.S.C. chapters 1606
and 1607, the flight courses that constitute the program of education
meet Federal Aviation Administration standards for such courses and the
Federal Aviation Administration and the State approving agency approve
them; or
(B) For 38 U.S.C. chapters 30 and 33, effective August 1, 2011, the
flight program is deemed approved (A flight program will be deemed
approved if it is approved by the Federal Aviation Administration and
is offered by a certified pilot school that possesses a valid Federal
Aviation Administration pilot school certificate or provisional pilot
school certificate under 14 CFR part 141. Flight programs offered at
flight schools listed in paragraph (b)(2) and (b)(3) of this section
will not be approved for VA training under 38 U.S.C. chapters 30 and
33); and
(ii)(A) The flight training offered by a flight school is generally
accepted as necessary for the attainment of a recognized vocational
objective in the field of aviation; or
(B) The flight training is offered by an institution of higher
learning for credit towards a standard college degree program.
(2) A State approving agency may approve a flight course only if a
flight school or an institution of higher learning offers the course. A
State approving agency may not approve a flight course if an individual
instructor offers it.
(Authority: 10 U.S.C. 16136(c), 16166(c), 38 U.S.C. 3032(e),
3241(b), 3672, 3676, 3680A)
* * * * *
0
15. Amend Sec. 21.4268 by revising paragraph (a) to read as follows:
Sec. 21.4268 Approval of licensing and certification tests.
(a) Authority to approve licensing and certification tests. (1)
Tests deemed approved. Effective August 1, 2011, a licensure test
offered by a Federal, State, or local government is deemed approved in
accordance with Sec. 21.4150(f).
(2) VA approval. The Secretary of Veterans Affairs delegates to the
Under Secretary for Benefits, and to personnel the Under Secretary for
Benefits may designate within the Education Service of the Veterans
Benefits Administration, the authority to approve licensing and
certification tests and the organizations and entities offering the
tests as provided in Sec. 21.4250(c)(2)(vi).
(3) State approving agency approval. Except for the licensing and
certification tests and organizations or entities offering these tests
that are approved under (a)(1) and (a)(2) of this section, the
Secretary of Veterans Affairs delegates to each State approving agency
the authority to approve licensing and certification tests and the
organizations and entities offering these tests located within the
State approving agency's jurisdiction as provided in Sec. 21.4250(a).
(Authority: 38 U.S.C. 512(a), 3672(b), 3689(a))
* * * * *
Subpart G--Post-Vietnam Era Veterans' Educational Assistance Under
38 U.S.C. Chapter 32
0
16. The authority citation for part 21, subpart G continues to read as
follows:
Authority: 38 U.S.C. 501(a), chs. 32, 36, and as noted in
specific sections.
0
17. Amend Sec. 21.5022 by:
0
a. In paragraph (a)(1)(ix), removing ``or''.
0
b. In paragraph (a)(1)(x), removing the period and adding a semicolon
in its place.
0
c. Adding paragraph (a)(1)(xi).
The addition reads as follows:
Sec. 21.5022 Eligibility under more than one program.
(a) * * *
(1) * * *
(xi) Effective August 1, 2011, 10 U.S.C. 510 (National Call to
Service).
* * * * *
Subpart K--All Volunteer Force Educational Assistance Program
(Montgomery GI Bill--Active Duty)
0
18. The authority citation for part 21, subpart K continues to read as
follows:
Authority: 38 U.S.C. 501(a), chs. 30, 36, and as noted in
specific sections.
0
19. Amend Sec. 21.7143 by:
0
a. In paragraph (a)(1)(ix), removing ``or''.
0
b. In paragraph (a)(1)(x), removing the period and adding a semicolon
in its place.
0
c. Adding paragraph (a)(1)(xi).
The addition reads as follows:
Sec. 21.7143 Nonduplication of educational assistance.
(a) * * *
[[Page 33697]]
(1) * * *
(xi) Effective August 1, 2011, 10 U.S.C. 510 (National Call to
Service).
* * * * *
Subpart L--Educational Assistance for Members of the Selected
Reserve
0
20. The authority citation for part 21, subpart L continues to read as
follows:
Authority: 10 U.S.C. ch. 1606; 38 U.S.C. 501(a), 512, ch. 36,
and as noted in specific sections.
0
21. Amend Sec. 21.7642 by:
0
a. In paragraph (a)(9), removing ``or''.
0
b. In paragraph (a)(10), removing the period and adding a semicolon in
its place.
0
c. Adding paragraph (a)(11).
The addition reads as follows:
Sec. 21.7642 Nonduplication of educational assistance.
(a) * * *
(11) Effective August 1, 2011, 10 U.S.C. 510 (National Call to
Service).
* * * * *
Subpart P--Post-9/11 GI Bill
0
22. The authority citation for part 21, subpart P continues to read as
follows:
Authority: 38 U.S.C. 501(a), 512, chs. 33, 36 and as noted in
specific sections.
0
23. Amend Sec. 21.9505 by:
0
a. Revising the section heading.
0
b. In the introductory text, removing ``apply.'' and adding in its
place ``apply to provisions effective before August 1, 2011, unless
otherwise noted.''
0
c. Revising the term ``Active duty''.
0
d. Adding in alphabetical order the term ``Educational institution''.
0
e. Revising the term ``Entry level and skill training''.
0
f. Adding in alphabetical order the term ``Fugitive felon''.
The revisions and additions read as follows:
Sec. 21.9505 Definitions--for provisions effective before August 1,
2011.
* * * * *
Active duty means--
(1) Full-time duty:
(i) In the regular components of the Armed Forces, or
(ii) Under a call or order to active duty under 10 U.S.C. 688,
12301(a), 12301(d), 12301(g), 12302, or 12304.
(2) In the case of a member of the Army National Guard of the
United States or the Air National Guard of the United States, in
addition to service described in paragraph (1)(ii) under the definition
of ``active duty'' in this section, full-time service--
(i) In the National Guard of a State for the purpose of organizing,
administering, recruiting, instructing, or training the National Guard;
or
(ii) In the National Guard under 32 U.S.C. 502(f) when authorized
by the President or the Secretary of Defense for the purpose of
responding to a national emergency declared by the President and
supported by Federal funds.
(3) Active duty does not include--
(i) Any period during which the individual--
(A) Was assigned full-time by the Armed Forces to a civilian
institution to pursue a program of education that was substantially the
same as programs of education offered to civilians; or
(B) Served as a cadet or midshipman at one of the service
academies; or
(C) Served under the provisions of 10 U.S.C. 12103(d) pursuant to
an enlistment in the Army National Guard, Air National Guard, Army
Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or
Coast Guard Reserve;
(ii) A period of service--
(A) Required by an officer pursuant to an agreement under 10 U.S.C.
2107(b); or
(B)(1) Required by an officer pursuant to an agreement under 10
U.S.C. 4348, 6959, or 9348; or
(2) Effective for individuals entering into agreements after
January 3, 2011, required by an officer pursuant to an agreement under
section 1925 of title 14, U.S.C.
(C) That was terminated because the individual is considered a
minor by the Armed Forces, was erroneously enlisted, or received a
defective enlistment agreement; or
(D) Counted for purposes of repayment of an education loan under 10
U.S.C. chapter 109.
(iii) A period of service after July 31, 2011, used to establish
eligibility under 38 U.S.C. chapter 30 or 32, or 10 U.S.C. chapter 1606
or 1607.
(Authority: 38 U.S.C. 101(21)(A), 3301(1), 3311(d), 3322(b), (c);
Pub. L. 111-377, 124 Stat. 4107-4108)
* * * * *
Educational institution has the same meaning as the term
institution of higher learning as defined in Sec. 21.4200(h) for
training pursued prior to August 1, 2011.
(Authority: 38. U.S.C. 3323(a))
* * * * *
Entry level and skill training means--
(1) Basic Combat Training, Advanced Individual Training, and,
effective January 4, 2011, One Station Unit Training for members of the
Army;
(2) Recruit Training (Boot Camp) and Skill Training (``A'' School)
for members of the Navy
(3) Basic Military Training and Technical Training for members of
the Air Force
(4) Recruit Training and Marine Corps Training (School of Infantry
Training) for members of the Marine Corps; and
(5) Basic Training and, for individuals entering service on or
after January 4, 2011, Skill Training (or so-called ``A'' School) for
members of the Coast Guard.
(Authority: 38 U.S.C. 3301(2))
* * * * *
Fugitive felon means an individual identified as such by Federal,
State, or local law enforcement officials and who is a fugitive by
reason of--
(1) Fleeing to avoid prosecution for an offense, or an attempt to
commit an offense, which is a felony under the laws of the place from
which the person flees;
(2) Fleeing to avoid custody or confinement after conviction for an
offense, or an attempt to commit an offense, which is a felony under
the laws of the place from which the person flees; or
(3) Violating a condition of probation or parole imposed for
commission of a felony under Federal or State law.
(Authority: 38 U.S.C. 3323(c), 5313B)
* * * * *
0
24. Add Sec. 21.9506 to read as follows:
Sec. 21.9506 Definitions--for provisions effective after July 31,
2011.
For the purposes of this subpart (governing the administration and
payment of educational assistance under 38 U.S.C. chapter 33),
effective after July 31, 2011, unless otherwise noted, the following
definitions apply. (See also additional definitions in Sec. Sec.
21.1029 and 21.4200).
Academic year means the period of time beginning August 1st of each
calendar year and ending July 31st of the subsequent calendar year.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(a))
Active duty means--
(1) Full-time duty:
(i) In the regular components of the Armed Forces, or
(ii) Under a call or order to active duty under 10 U.S.C. 688,
12301(a), 12301(d), 12301(g), 12302, or 12304.
(2) In the case of a member of the Army National Guard of the
United States or the Air National Guard of the United States, in
addition to service described in paragraph (1)(ii) under the definition
of ``active duty'' in this section, full time service--
(i) In the National Guard of a State for the purpose of organizing,
administering, recruiting, instructing, or training the National Guard;
or
[[Page 33698]]
(ii) In the National Guard under 32 U.S.C. 502(f) when authorized
by the President or the Secretary of Defense for the purpose of
responding to a national emergency declared by the President and
supported by Federal funds.
(3) Active duty does not include--
(i) Any period during which the individual--
(A) Was assigned full-time by the Armed Forces to a civilian
institution to pursue a program of education that was substantially the
same as programs of education offered to civilians; or
(B) Served as a cadet or midshipman at one of the service
academies; or
(C) Served under the provisions of 10 U.S.C. 12103(d) pursuant to
an enlistment in the Army National Guard, Air National Guard, Army
Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, or
Coast Guard Reserve;
(ii) A period of service--
(A) Required by an officer pursuant to an agreement under 10 U.S.C.
2107(b); or
(B)(1) Required by an officer pursuant to an agreement under 10
U.S.C. 4348, 6959, or 9348; or
(2) Effective for individuals entering into agreements after
January 3, 2011, required by an officer pursuant to an agreement under
section 1925 of title 14, U.S.C.
(C) That was terminated because the individual is considered a
minor by the Armed Forces, was erroneously enlisted, or received a
defective enlistment agreement; or
(D) Counted for purposes of repayment of an education loan under 10
U.S.C. chapter 109.
(Authority: 38 U.S.C. 101(21)(A), 3301(1), 3311(d), 3322(b), (c),
(h); Pub. L. 111-377, 124 Stat. 4107-4108)
Advance payment means an amount of educational assistance payable
under Sec. 21.9641(c) for the month or fraction of the month in which
the individual's quarter, semester, or term will begin plus the amount
for the following month.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(d))
Course means a unit of instruction required for an approved program
of education that provides an individual with the knowledge and skills
necessary to meet the requirements of the selected educational,
professional, or vocational objective.
(Authority: 38 U.S.C. 3323(c))
Distance learning means the pursuit of a program of education via
distance education as defined in 20 U.S.C. 1003(7).
(Authority: 20 U.S.C. 1003(7); 38 U.S.C. 3323(c))
Educational assistance means all monetary benefits (including but
not limited to tuition, fees, and monthly housing allowances) payable
under 38 U.S.C. chapter 33 to, or on behalf of, individuals who meet
the eligibility requirements for pursuit of an approved program of
education under 38 U.S.C. chapter 33
(Authority: 38 U.S.C. 3313)
Educational institution has the same meaning as the term
institution of higher learning as defined in Sec. 21.4200(h).
(Authority: 38. U.S.C. 3323(a)).
Enrollment period means a term, quarter, or semester during which
the educational institution offers instruction.
(Authority: 38 U.S.C. 3034(a), 3323(a), 3680(g))
Entry level and skill training means--
(1) For members of the Army--
(i) Basic Combat Training,
(ii) Advanced Individual Training, and
(iii) Effective January 4, 2011, One Station Unit Training.
(2) For members of the Navy, Recruit Training (Boot Camp) and Skill
Training (``A'' School).
(3) For members of the Air Force, Basic Military Training and
Technical Training.
(4) For members of the Marine Corps, Recruit Training and Marine
Corps Training (School of Infantry Training).
(5) For members of the Coast Guard--
(i) Basic Training and
(ii) For individuals entering service on or after January 4, 2011,
Skill Training (or so-called ``A'' School).
(Authority: 38 U.S.C. 3301(2))
Fees mean
[…truncated; see source link]Indexed from Federal Register on May 24, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.