Proposed Rule2024-22606
Legal Services for Veterans-Legal Assistance for Access to VA Programs Grant Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 2, 2024
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) proposes to amend its regulations to implement a new authority requiring VA to establish a pilot program to assess the feasibility of awarding grants to eligible entities to establish new legal assistance clinics or enhance existing legal assistance clinics and pro bono efforts to provide certain legal assistance to veterans and individuals who served in the Armed Forces. This rulemaking provides proposed grant program eligibility criteria, application requirements, scoring criteria, constraints on the allocation and use of grant funds, and other requirements necessary to implement the grant program.
Full Text
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<title>Federal Register, Volume 89 Issue 191 (Wednesday, October 2, 2024)</title>
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[Federal Register Volume 89, Number 191 (Wednesday, October 2, 2024)]
[Proposed Rules]
[Pages 80172-80191]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-22606]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 81
RIN 2900-AS17
Legal Services for Veterans--Legal Assistance for Access to VA
Programs Grant Program
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
regulations to implement a new authority requiring VA to establish a
pilot program to assess the feasibility of awarding grants to eligible
entities to establish new legal assistance clinics or enhance existing
legal assistance clinics and pro bono efforts to provide certain legal
assistance to veterans and individuals who served in the Armed Forces.
This rulemaking provides proposed grant program eligibility criteria,
application requirements, scoring criteria, constraints on the
allocation and use of grant funds, and other requirements necessary to
implement the grant program.
DATES: Comments must be received on or before December 2, 2024.
ADDRESSES: Comments may 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
<a href="http://www.regulations.gov">www.regulations.gov</a> as soon as possible after they have been received.
VA will not post on <a href="http://www.regulations.gov">www.regulations.gov</a> public comments that make
threats to individuals or institutions or suggest that the commenter
will take actions to harm an individual. VA encourages individuals not
to submit duplicative comments; however, we will post 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. In accordance with the Providing
Accountability Through Transparency Act of 2023, a 100 word Plain-
Language Summary of this proposed rule is available at <a href="http://Regulations.gov">Regulations.gov</a>,
under RIN 2900-AS17.
FOR FURTHER INFORMATION CONTACT: Madolyn Gingell, National Coordinator,
Legal Services for Veterans, Veterans Justice Programs, Clinical
Services, Veterans Health Administration, Department of Veterans
Affairs, at <a href="/cdn-cgi/l/email-protection#99d4f8fdf6f5e0f7b7def0f7fefcf5f5d9eff8b7fef6ef"><span class="__cf_email__" data-cfemail="266b4742494a5f4808614f4841434a4a66504708414950">[email protected]</span></a> or (239) 223-4681.
SUPPLEMENTARY INFORMATION:
Background
On January 1, 2021, the William M. (Mac) Thornberry National
Defense Authorization Act for Fiscal Year 2021, Public Law 116-283 (the
Act), was signed into law and authorized appropriations for defense
activities and various other purposes. Section 548(b) of the Act
directed the Secretary of VA (Secretary) to establish a pilot program
to assess the feasibility and advisability of awarding grants to
eligible entities to establish new legal assistance clinics or enhance
existing legal assistance clinics or other pro bono efforts in
locations other than VA facilities to provide certain legal assistance
to veterans and individuals who served in the Armed Forces. VA proposes
to implement this pilot program by creating the Legal Services for
Veterans--Legal Assistance for Access to VA Programs Grant Program
(Grant Program) in new part 81 of title 38, Code of Federal Regulations
(CFR).
The primary purpose of the Grant Program is to provide certain
legal assistance to former service members to assist them in gaining
access to VA benefits. Because a former service member's discharge is
often a barrier to VA benefits, VA believes the Grant Program would
provide needed assistance with improving the character of discharge for
those individuals whose current discharge status renders them
ineligible for VA benefits. Attorneys are well-suited to help
individuals navigate these processes, and the proposed Grant Program
would directly fund the provision of legal assistance with any VA
program, with improving the status of a military discharge or
characterization of service, and with seeking a review of a military
record before a board of correction of military or naval records,
consistent with Section 548(b) of the Act. The Grant Program would
serve a broad group of individuals, not just those who meet the
statutory definition of veteran under 38 U.S.C. 101(2), and would also
assist any individual discharged or released from the Armed Forces,
including those who served in a reserve component.
To be eligible for VA programs and services, an individual's
military discharge or release must generally be under ``other than
dishonorable conditions'' (e.g., honorable, under honorable conditions,
general), a standard established in the statutory definition of veteran
under 38 U.S.C. 101(2). A military discharge or release under certain
conditions, regardless of the character of service listed on an
individual's Certificate of Uniformed Service (DD Form 214/5), could
also constitute a statutory bar to VA programs and services under 38
U.S.C. 5303. However, in certain circumstances, individuals that do not
meet the statutory definition under 38 U.S.C. 101(2) could qualify for
VA programs and services if they receive a favorable outcome through a
military service discharge review board, a board for correction of
military or naval records, or VA's character of discharge
determination.
In late September 2021, VA sought input from 18 veterans service
organizations and legal services organizations to inform development of
the criteria and requirements for implementation of the Grant Program.
VA asked the organizations to provide comments on: (1) the types of VA
programs to be focused on; (2) any additional assistance that should be
provided beyond what is specified in the Act; (3) criteria that should
be emphasized during the grant selection process; (4) how VA should
require grantees to target individuals eligible to receive legal
assistance without regard for the conditions of discharge or release
from the Armed Forces; (5) criteria that should be used to assess the
effectiveness of the Grant Program; (6) and any additional factors VA
should consider for the Grant Program.
VA received input from two veterans service organizations and three
legal services organizations. Multiple commenters stated the Grant
Program should prioritize approving grant applicants that: operate in
underserved areas; would provide legal assistance to improve the status
of a military discharge or characterization of service; and would
provide legal assistance to
[[Page 80173]]
those who are ineligible for VA health care. Almost all commenters
suggested VA prioritize approving grant applicants that have experience
providing legal assistance to veterans instead of prioritizing grant
applicants who would expand their current program to newly provide
legal assistance to veterans or grant applicants who would start an
entirely new legal assistance program. In addition, commenters
suggested VA prioritize grant applicants that engage in community
outreach to former service members, considering both the direct
outreach of the applicant as well as the applicant's relationships with
community partners serving these individuals. Additionally, some
commenters suggested that VA allow grantees to provide a broad range of
legal assistance beyond what is specified in the Act. These comments
were considered during development of the proposed Grant Program
criteria and requirements, and the feedback VA received is publicly
available at <a href="http://www.regulations.gov">www.regulations.gov</a> as ``Supporting & Related Material''
to this rulemaking.
38 CFR Part 81--Legal Services for Veterans--Legal Assistance for
Access to VA Programs Grant Program
The Legal Services for Veterans--Legal Assistance for Access to VA
Programs Grant Program (Grant Program) would be established in new part
81 of title 38, CFR, to provide clarity and establish criteria for
applicants and grantees who may participate in the Grant Program. These
new regulations would ensure consistency in the overall administration
of the Grant Program and would provide transparency to eligible
entities applying for and administering a legal assistance grant.
The purpose, scope, and definitions applicable to the Grant Program
would be established in proposed Sec. Sec. 81.0 and 81.5. Eligibility
for entities seeking a legal assistance grant would be established in
proposed Sec. 81.10. Eligible individuals seeking legal assistance
from a grantee would be established in proposed Sec. 81.15. The types
of legal assistance that could be provided to eligible individuals
under the Grant Program would be established in proposed Sec. 81.20.
Grant Program application, scoring, and selection criteria for new
grantees and renewals would be established in proposed Sec. Sec. 81.25
through 81.50. Grantee requirements would be established in proposed
Sec. Sec. 81.55 through 81.115. The proposed content and structure of
new part 81 are described in further detail below.
Sec. 81.0 Purpose and Scope
Proposed 38 CFR 81.0 would explain the purpose and scope of part
81. Proposed paragraph (a) would state that the purpose is to implement
the Legal Services for Veterans--Legal Assistance for Access to VA
Programs Grant Program to award grants to eligible entities to
establish new legal assistance clinics or enhance existing legal
assistance clinics or other pro bono efforts providing legal assistance
to eligible individuals. Proposed paragraph (b) would state that part
81 applies only to the provision of legal assistance in locations other
than VA facilities to align with section 548(b)(1) of the Act. These
statements would be consistent with the intent, purpose, and scope of
the Grant Program established in section 548(b) of the Act.
We note that the present Grant Program is distinct from the program
established by Section 548(a) of the Act, codified in 38 U.S.C. 5906,
which directs VA to facilitate the provision of pro bono legal
assistance by a qualified legal clinic at certain VA locations. Legal
assistance authorized under section 548(a) of the Act is provided at VA
facilities, operates through pro bono legal clinic partnerships with
VA, and is only available to veterans, surviving spouses of veterans,
and children of deceased veterans using the statutory definition of
veteran under 38 U.S.C. 101(2).
The present Grant Program is also distinct from the grant program
authorized by 38 U.S.C. 2022A, codified in 38 CFR part 79 as the Legal
Services for Homeless Veterans and Veterans At-Risk for Homelessness
Grant Program (hereinafter referred to as LSV-H), which awards grants
to provide a wide range of legal services directly addressing the needs
of homeless veterans and veterans at-risk for homelessness, and also
uses the statutory definition of veteran under 38 U.S.C. 101(2). While
the authority for the LSV-H grant program is distinct from the present
Grant Program, we relied on the LSV-H grant program regulations in 38
CFR part 79 when drafting these proposed regulations. VA believes
maintaining as much consistency as possible between these two similar
grant programs will allow for ease of administration and use by VA,
eligible entities, and eligible individuals alike. In our discussion
below, we note the instances where we relied on the LSV-H regulations
to develop this rulemaking.
81.5 Definitions
Proposed 38 CFR 81.5 would set forth the definitions, in
alphabetical order, for terms that apply throughout part 81 and to any
Notice of Funding Opportunity (NOFO) for the Grant Program.
VA would define applicant as an entity meeting the eligibility
criteria of Sec. 81.10 that submits an application for a legal
assistance grant announced in a NOFO for the Grant Program administered
under this part. VA would define applicant in this manner since only an
eligible entity as defined in Sec. 81.10 could submit an application
for a legal assistance grant in accordance with Sec. 81.25. This
proposed definition is based on a plain language understanding of the
term and would be similar to the definition used in the LSV-H grant
program (see 38 CFR 79.5).
VA would define Armed Forces as having the meaning given to that
term in 38 U.S.C. 101(10). Section 101(10) of title 38, U.S.C., defines
Armed Forces as the United States Army, Navy, Marine Corps, Air Force,
Space Force, and Coast Guard, including the reserve components thereof.
Defining this term would be necessary to further identify eligible
individuals in proposed 38 CFR 81.15, and we would use the definition
of Armed Forces in 38 U.S.C. 101(10) to maintain consistency among VA
programs.
VA would define grantee as an eligible entity that is awarded a
legal assistance grant under this part. This proposed definition is
based on a plain language understanding of the term and would be
similar to the definition used in the LSV-H grant program (see 38 CFR
79.5).
VA would define legal assistance clinic as an entity or program
whose primary purpose is to provide legal assistance to individuals on
a pro bono basis. The definition would refer collectively to both the
individuals providing pro bono assistance and to the legal services
rendered. The term would not be a reference to a certain physical
space, as legal assistance clinics may operate remotely or virtually.
This definition would be consistent with the term's common usage in the
legal community.
VA would define legal assistance grant as a grant awarded under
this part. This definition is a plain language understanding of the
term.
VA would define nonprofit entity as an entity that meets the
requirements of 26 U.S.C. 501(c)(3), (6), or (19), which establish the
criteria for tax exempt status by the Internal Revenue Service. This
definition would be necessary to further define eligible nonprofit
entities
[[Page 80174]]
under proposed 38 CFR 81.10 and would be similar to the definition used
in the LSV-H grant program (see 38 CFR 79.10(c)).
Nonprofit organizations classified under section 501(c)(3) include
certain entities operated exclusively for religious, charitable,
scientific, public safety testing, literary, or educational purposes;
to foster amateur sports competition; or for the prevention of cruelty
to children or animals; and that do not substantially participate in
legislative or political activities. To be eligible under section
501(c)(3), no net earnings of the entity may benefit a private
shareholder or individual.
Nonprofit organizations classified under section 501(c)(6) include
business leagues, chambers of commerce, real-estate boards, boards of
trade, or professional football leagues (whether or not administering a
pension fund for football players). To be eligible under section
501(c)(6), no net earnings of the entity may benefit a private
shareholder or individual.
Nonprofit organizations classified under section 501(c)(19) are
those entities comprised of current or former members of the Armed
Forces of the United States; or an auxiliary unit, society, trust, or
foundation associated with such entity as long as it is organized in
the United States or any of its possessions, and a majority of its
members are past or present members of the Armed Forces of the United
States, with the remainder comprised mostly of individuals who are
cadets or former members of the Armed Forces of the United States. To
be eligible under section 501(c)(19), no net earnings of the entity may
benefit a private shareholder or individual.
VA would define Notice of Funding Opportunity (NOFO) using the
meaning given in 2 CFR 200.1, or successor regulations. Section 200.1
defines NOFO as a formal announcement of the availability of Federal
funding through a financial assistance program from a Federal awarding
agency. The NOFO provides information on the award, who is eligible to
apply, the evaluation criteria for selection of an awardee, the
required components of an application, and how to submit an
application. The NOFO is any paper or electronic issuance that an
agency uses to announce a funding opportunity, whether it is called a
``program announcement,'' ``notice of funding availability,'' ``broad
agency announcement,'' ``research announcement,'' ``solicitation,'' or
some other term. The Grant Program would be subject to the requirements
of 2 CFR part 200, which establishes the uniform administrative
requirements, cost principles, and audit requirements for Federal
awards to non-Federal entities. This definition would also be
consistent with the LSV-H grant program (see 38 CFR 79.5).
VA would define participant as an individual meeting the
eligibility criteria of 38 CFR 81.15 who receives legal assistance from
a grantee under this part. This is a plain language understanding of
the term.
VA would define reserve component as having the meaning given to
that term in 10 U.S.C. 10101. Section 10101 of title 10, U.S.C., (the
title applicable to the Armed Forces of the United States) defines the
reserve components of the Armed Forces as the Army National Guard of
the United States, the Army Reserve, the Navy Reserve, the Marine Corps
Reserve, the Air National Guard of the United States, the Air Force
Reserve, and the Coast Guard Reserve. We would refer to section 10101
to provide further clarity on the specific types of service that would
qualify as reserve component service, because VA's definition of
``Armed Forces'' in 38 U.S.C. 101(10) does not individually define the
term ``reserve components''. Defining this term would be necessary to
further identify eligible individuals in proposed 38 CFR 81.15.
VA would define State as any of the several States of the United
States, the District of Columbia, the Commonwealth of Puerto Rico, any
territory or possession of the United States, or any agency or
instrumentality of a State exclusive of local governments. This would
be similar to the definition of the term found in 38 U.S.C. 101(20), as
well as the definition used in the LSV-H grant program (see 38 CFR
79.5).
VA would define subcontractor as any third-party contractor, of any
tier, performing work directly for an eligible entity. This is a common
understanding of the term and would be consistent with the definition
used in the LSV-H grant program (see 38 CFR 79.5).
VA would define suspension as an action by VA that temporarily
withdraws VA funding under a legal assistance grant, pending corrective
action by the grantee or pending a decision by VA to terminate the
legal assistance grant. Suspension of a legal assistance grant would be
a separate action from suspension under VA regulations or guidance
implementing Executive Orders 12549 and 12689, ``Debarment and
Suspension.'' This definition would be consistent with the definition
used in the LSV-H grant program (see 38 CFR 79.5). However, with
regards to implementing Executive Orders 12549 and 12689, VA has added
the word guidance, as not all of VA's implementations of Executive
Orders are regulatory. Suspension is addressed in proposed 38 CFR
81.110, which is further discussed in this rulemaking.
VA would define withholding to mean that payment under a legal
assistance grant would not be made until such time as VA determines
that the grantee provides sufficiently adequate documentation and/or
actions to correct a deficiency for the legal assistance grant. This
term is defined in this manner as it is intended to provide a general
description of how this term is used in 2 CFR part 200, which governs
VA grant programs, including the legal assistance grant program. This
term relates to withholding payment of a legal assistance grant
pursuant to 38 CFR 81.110, which is further discussed in this
rulemaking. This definition would be similar to the definition used in
the LSV-H grant program (see 38 CFR 79.5).
Sec. 81.10 Eligible Entities
Proposed 38 CFR 81.10 would set forth the criteria for an entity to
be considered eligible for the Grant Program. This section would be
consistent with the provisions specified in section 548(b)(2) of the
Act, which state that an eligible entity is a veterans service
organization or other nonprofit organization specifically focused on
assisting veterans; an entity specifically focused on assisting
veterans and associated with an accredited law school; a legal services
organization or bar association; or such other type of entity as VA
considers appropriate for purposes of the Grant Program. This section
would also provide additional criteria for such entities to be
considered eligible for a legal assistance grant.
Proposed 38 CFR 81.10 would state that an eligible entity must be a
nonprofit or public entity that meets the following requirements.
Proposed Sec. 38 CFR 81.10(a) would establish the types of
nonprofit entities that could be eligible for a legal assistance grant.
While nonprofit status is required only in section 548(b)(2)(A) for an
organization that is ``specifically focused on assisting veterans'',
proposed Sec. 81.10(a) would require that all of the entities set
forth in proposed paragraphs (1) through (5) operate in a nonprofit
status to be eligible for a legal assistance grant. We would include
this additional requirement to ensure that only organizations who do
not operate for profit would be eligible for a legal assistance grant
as we believe that would be consistent with the intent of
[[Page 80175]]
the Grant Program, but we note that the majority of these entities
already operate in a nonprofit status. As discussed previously,
``nonprofit entity'' would be defined in proposed Sec. 81.5 as an
entity that meets the requirements of 26 U.S.C. 501(c)(3), (6), or
(19).
Proposed 38 CFR 81.10(a)(1) would state that a veterans service
organization (VSO) that is specifically focused on assisting veterans
and recognized by VA in accordance with 38 U.S.C. 5902 would be
eligible for a legal assistance grant. This would be consistent with
section 548(b)(2)(A) and (e)(2) of the Act. We note that section
548(b)(2)(A) of the Act limits eligibility to VSOs ``specifically
focused on assisting veterans'', but we do not believe Congress
intended to limit eligibility only to those VSOs providing services
exclusively to veterans as defined in 38 U.S.C. 101(2). Such an
interpretation would render the language in section 548(b)(1)(A) of the
Act, which states that ``individuals who served in the Armed Forces''
are eligible, superfluous. Therefore, even though the VSO must
specifically focus on veterans, we would consider VSOs that provide
services to more than just veterans (specifically those individuals
eligible under proposed 38 CFR 81.15) to be eligible organizations
under proposed Sec. 81.10(a)(1). To the extent that Congress did not
intend this outcome under section 548(b)(2)(A) of the Act, VA would use
its discretion under section 548(b)(2)(D) of the Act to include VSOs
that may also provide services to eligible individuals who do not meet
the criteria to be a veteran under in 38 U.S.C. 101(2).
Proposed 38 CFR 81.10(a)(2) would state that an organization that
is specifically focused on assisting veterans, but is not a VSO in
accordance with proposed paragraph (a)(1), would be eligible for a
legal assistance grant. This would be consistent with section
548(b)(2)(A) of the Act. Similar to proposed 38 CFR 81.10(a)(1), VA
would consider organizations specifically focused on assisting veterans
that provide services to more than just veterans (specifically those
individuals eligible under proposed Sec. 81.15) to be eligible
organizations under proposed Sec. 81.10(a)(2).
Proposed 38 CFR 81.10(a)(3) would state that an entity associated
with a law school accredited by the American Bar Association and
specifically focused on assisting veterans would be eligible for a
legal assistance grant. This would be consistent with section
548(b)(2)(B) of the Act. Many law schools operate one or more pro bono
(no cost) legal assistance clinics as part of their curriculum. These
legal assistance clinics allow law students to provide legal assistance
directly to clients under the supervision of a licensed attorney. The
areas of law and types of individuals served by these legal assistance
clinics vary among law schools. Section 548(b)(2)(B) of the Act
specifies that these entities must be ``associated with an accredited
law school.'' VA would require accreditation by the American Bar
Association (ABA), as it is the largest and most universal
accreditation standard for legal education in the United States.
According to the Law School Admissions Council, only 35 law schools in
the United States are not ABA-accredited, compared to nearly 200 law
schools accredited by the ABA. See <a href="https://www.lsac.org/choosing-law-school/find-law-school/non-aba-approved-law-schools/">https://www.lsac.org/choosing-law-school/find-law-school/non-aba-approved-law-schools/</a> and <a href="https://www.americanbar.org/groups/legal_education/resources/aba_approved_law_schools/">https://www.americanbar.org/groups/legal_education/resources/aba_approved_law_schools/</a>. VA proposes to adopt this accreditation
criteria because the ABA requires strict adherence to uniform academic
standards and using this standard would provide for transparency and
consistency among Grant Program applicants. See <a href="https://www.americanbar.org/groups/legal_education/resources/standards/">https://www.americanbar.org/groups/legal_education/resources/standards/</a>.
Proposed 38 CFR 81.10(a)(4) would state that a legal services
organization would be eligible for a legal assistance grant. Legal
services organizations are entities whose primary purpose is to provide
pro bono legal assistance to individuals. Commonly referred to as
``legal aid,'' each State has one or more organizations providing these
services, which are typically limited to low-income individuals. Legal
services organizations may operate from a defined physical space using
attorneys employed by the organization, or they may be structured as a
network of attorneys providing pro bono services in their individual
capacity to clients upon referral from the organization. Legal services
organizations operate in a nonprofit status and are therefore distinct
from law firms that operate for profit but may provide limited pro bono
services. VA would not add any additional criteria for a legal services
organization to be considered eligible, because these organizations are
structured similarly and are easily identifiable within the legal
community. This would be consistent with section 548(b)(2)(C) of the
Act.
Proposed 38 CFR 81.10(a)(5) would state that a bar association,
which is an organization of lawyers aligned at the national, State, or
local level, would be eligible for a legal assistance grant. Some bar
associations serve a regulatory function, while others are solely a
professional organization for members. VA would not add any additional
criteria for a bar association to be considered eligible, because these
organizations are structured similarly and are easily identifiable
within the legal community. This would be consistent with section
548(b)(2)(C) of the Act.
Proposed 38 CFR 81.10(b) would establish the three categories of
public entities that would be eligible for the Grant Program, which
would be consistent with section 548(b)(2)(D) of the Act.
Proposed 38 CFR 81.10(b)(1) would state that a local government,
which would be further defined as a county, municipality, city, town,
township, local public authority (including any public and Indian
housing agency under the United States Housing Act of 1937), school
district, special district, intrastate district, council of governments
(whether or not incorporated as a nonprofit corporation under state
law), any other regional or interstate government entity, or any agency
or instrumentality of a local government, would be eligible for a legal
assistance grant.
Proposed paragraph (b)(2) would state that a State government would
be eligible for a legal assistance grant. We would not include any
further definition, as this term is commonly understood by the public.
Proposed paragraph (b)(3) would state that a Federally recognized
Indian tribal government would be eligible for a legal assistance
grant. We would further define this term as the governing body or a
governmental agency of any Indian tribe, band, nation, or other
organized group or community (including any Native village as defined
in section 3 of the Alaska Native Claims Settlement Act, 85 Stat. 688)
certified by the Secretary of the Interior as eligible for the special
programs and services provided by him through the Bureau of Indian
Affairs. Using this definition would establish consistency and
uniformity among Federal agencies in the administration of grants and
cooperative agreements to State, local, and federally recognized Indian
tribal governments. Inclusion of these public entities would be
consistent with the LSV-H grant program (see 38 CFR 79.10).
Sec. 81.15 Eligible Individuals
Proposed 38 CFR 81.15 would set forth the individuals eligible to
receive legal assistance from grantees under the Grant Program.
Proposed paragraph (a)
[[Page 80176]]
would establish the first criterion for an individual to be eligible
for legal assistance, stating that the individual must have served in
the Armed Forces, including individuals who served in a reserve
component of the Armed Forces. This criterion would be consistent with
the definition of individuals eligible to receive legal assistance
described in section 548(b)(1)(A) of the Act.
As explained previously, ``Armed Forces'' and ``reserve component''
would be defined in proposed 38 CFR 81.5 as having the meaning given to
those terms in 38 U.S.C. 101(10) and 10 U.S.C. 10101, respectively. We
would not use the term ``veteran'' as defined in 38 U.S.C. 101(2) in
proposed 38 CFR 81.15(a), because the title 38 definition is narrower
than those who would be explicitly eligible under section 548(b)(1)(A)
of the Act regarding character of discharge. Relying on the definition
of ``reserve component'' in 10 U.S.C. 10101 would also clarify that an
individual who was called to serve in the Army or Air National Guard of
the United States (pursuant to the authority to federalize the State
militia under title 10, U.S.C.) would be eligible to receive legal
assistance, while an individual who served only in the Army or Air
National Guard of an individual State (pursuant to the authority to
maintain a State militia under title 32, U.S.C.) would not be eligible
to receive legal assistance. An individual who was never called to
Federal service in the Army or Air National Guard of the United States,
but who served only in the Army or Air National Guard of an individual
State, would not be eligible for any VA services, regardless of the
individual's military discharge or characterization of service, and
such individual would therefore receive no benefit from the types of
legal assistance able to be provided under the Grant Program as
established in proposed 38 CFR 81.20.
Proposed 38 CFR 81.15(b) would establish the second criterion,
stating that the individual must have been discharged or released
therefrom, regardless of the conditions of such discharge or release.
Proposed paragraph (b) would also state that for the purpose of
determining eligibility, ``discharged or released'' refers to the
official termination of service in the component of the Armed Forces in
which the individual served. This would be a commonsense interpretation
of the term and would be necessary to ensure consistent application
among the different terminology and documentation used by each military
service and its reserve component(s). The conditions of an individual's
discharge or release would not be considered in determining eligibility
for legal assistance under the Grant Program, which would be a
deviation from the majority of VA programs and services that use the
statutory definition of veteran under 38 U.S.C. 101(2) and require an
individual's discharge or release to be ``under conditions other than
dishonorable.'' This section would be consistent with the eligibility
criteria specified in section 548(b)(1)(A) of the Act.
Sec. 81.20 Legal Assistance
Proposed 38 CFR 81.20 would set forth the types of legal assistance
eligible individuals could receive from grantees under the Grant
Program. This section would be consistent with sections 548(b)(1)(A) of
the Act and 38 U.S.C. 5906(c) with one limitation, which is discussed
in further detail below.
Section 548(b)(1)(A) of the Act cites to 38 U.S.C. 5906(c) to
establish the types of legal assistance that may be provided under the
Grant Program. Section 5906(c) provides for the following types of
legal assistance: legal assistance with any program administered by the
Secretary; legal assistance associated with improving the status of a
military discharge or characterization of service in the Armed Forces,
including through a discharge review board or seeking a review of a
military record before a board of correction for military or naval
records; and such other legal assistance as the Secretary considers
appropriate and determines may be needed by eligible individuals.
Proposed 38 CFR 81.20(a) would explain that legal assistance could
be provided with regard to any VA program administered by the
Secretary. This would include navigating the full range of VA programs
and services such as claims and appeals for compensation and pension,
education, health care, loans, national cemetery matters, and VA
character of discharge determinations. This would be consistent with
section 548(b)(1)(A) of the Act and 38 U.S.C. 5906(c)(1). Pursuant to
38 U.S.C. 5901, no one can act as an agent or attorney in the
preparation, presentation, or prosecution of any claim under laws
administered by VA unless such individual has been recognized for such
purposes by VA. VA implemented this authority and established a formal
accreditation process in 38 CFR 14.626 through 14.637. We would include
a note to proposed paragraph (a) to state that a grantee must be
accredited consistent with Sec. Sec. 14.626 through 14.637 before
acting as an agent or attorney in the preparation, presentation, or
prosecution of any claim under laws administered by VA.
Proposed 38 CFR 81.20(b) would explain that legal assistance could
be provided to improve the status of a military discharge or
characterization of service in the Armed Forces, including through a
discharge review board. Proposed paragraph (b) would further explain
that legal assistance could also be provided in seeking review of a
military record before a board of correction for military or naval
records. This would be consistent with section 548(b)(1)(A) of the Act
and 38 U.S.C. 5906(c)(2).
During consultation, we received two comments encouraging VA to
include legal assistance for any type of legal issue an eligible
individual may be facing. We considered this input, but for the
purposes of the Grant Program, we would not incorporate into regulation
the ``other legal assistance'' provision in 38 U.S.C. 5906(c)(3).
Limiting legal assistance provided under the Grant Program to the areas
specifically listed in 38 U.S.C. 5906(c)(1) and (2) would allow
grantees to devote maximum resources to ensure this expanded population
of eligible individuals can access VA programs and services for which
they may be eligible. That is, VA believes it is critical to focus the
legal assistance offered under the Grant Program on enabling
eligibility for VA programs and services and does not intend to add
assistance under 5906(c)(3) at this time.
Sec. 81.25 Applications for Legal Assistance Grants
Proposed 38 CFR 81.25 would set forth the process for eligible
entities to apply for a legal assistance grant under this part.
Proposed paragraph (a) would provide the requirements for an
application package to be considered complete, as described in further
detail in the NOFO. To select eligible entities in accordance with the
criteria provided in section 548(b)(6) of the Act, Grant Program
application packages would require the following information:
Proposed 38 CFR 81.25(a)(1) would state that applicants must
provide documentation demonstrating the entity is eligible to apply for
a legal assistance grant under proposed Sec. 81.10. This would ensure
VA had necessary information to determine the applicant's eligibility
status and would be consistent with section 548(b)(2) of the Act.
Proposed 38 CFR 81.25(a)(2) would state that applicants must
describe their capacity, and the capacity of any
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identified subcontractors, to provide legal assistance to eligible
individuals. This would be consistent with section 548(b)(6)(A) of the
Act.
Proposed 38 CFR 81.25(a)(3) would state that applicants must
describe the legal assistance they would provide and the identified
need for that assistance among eligible individuals. This would be
consistent with section 548(b)(6)(B) of the Act.
Proposed 38 CFR 81.25(a)(4) would state that applicants must also
provide documentation that demonstrates their need for financial
assistance from a legal assistance grant. This would be consistent with
section 548(b)(6)(C) of the Act.
Proposed 38 CFR 81.25(a)(5) would state that applicants must
provide a description of the geographic area or community served by the
applicant. This would be consistent with section 548(b)(6)(D) of the
Act.
Proposed 38 CFR 81.25(a)(6) through (14) would set forth additional
information necessary to ensure that VA could adequately evaluate
applicants for the purposes of this Grant Program. These application
criteria would be similar to criteria used in the LSV-H grant program
(see 38 CFR 79.25).
Proposed paragraph (a)(6) would state that applicants must describe
the physical location where legal assistance will be provided to
eligible individuals, if applicable (that is, if the applicant would be
utilizing a physical space).
Proposed paragraph (a)(7) would state that applicants must describe
how they will ensure that legal assistance is provided to eligible
individuals.
Proposed paragraph (a)(8) would state that applicants must describe
the characteristics of the eligible individuals who will receive legal
assistance provided by the applicant. This criterion would provide an
opportunity for applicants to explain if their proposed program would
reach special populations, such as medically underserved or tribal
individuals, and would be consistent with section 548(b)(6)(B) and (E)
of the Act.
Proposed paragraph (a)(9) would state that applicants must provide
an estimate with supporting documentation of the number of eligible
individuals who will receive legal assistance provided by the
applicant.
Proposed paragraph (a)(10) would state that applicants must provide
documentation relating to their ability to maintain appropriate levels
of qualified staff and coordinate with any identified subcontractors.
Proposed paragraph (a)(11) would state that applicants must provide
documentation relating to their capacity to effectively administer a
legal assistance grant. This documentation would need to address the
applicant's accounting practices and financial controls; capacity for
data collection and reporting required under part 81; and experience
administering other Federal, State, or county grants similar to the
Grant Program under this part.
Proposed paragraph (a)(12) would state that applicants must provide
documentation of their managerial capacity. This documentation would
need to address the applicant's capacity to coordinate the provision of
legal assistance by the applicant or by other organizations on a
referral basis; continually assess the needs of participants for legal
assistance; coordinate the provision of legal assistance with services
provided by VA; customize legal assistance to the needs of eligible
individuals; and comply with and implement the requirements of part 81
throughout the term of the legal assistance grant.
Proposed paragraph (a)(13) would state that applicants must provide
documentation demonstrating that adequate financial support will be
available to carry out the legal assistance for which the grant is
sought consistent with the application.
Proposed paragraph (a)(14) would state that applicants must provide
any additional information that VA deems appropriate, which VA would
specifically list in the NOFO. This inclusive provision would allow VA
to further tailor application requirements throughout the duration of
the Grant Program, if necessary.
Proposed paragraph (b) would state that subject to funding
availability, grantees could apply for renewal of a legal assistance
grant if the grantee's program will remain substantially the same. To
apply for renewal, a grantee would be required to submit a complete
legal assistance grant renewal application package, as described in the
NOFO. This would allow VA to renew legal assistance grants in a timely
and efficient manner without lapse in the provision of legal assistance
to participants from year to year. This would be consistent with the
LSV-H grant program (see 38 CFR 79.25(b)).
Proposed paragraph (c) would state that VA could request, in
writing, that an applicant or grantee, as applicable, submit other
information or documentation relevant to the application. This would be
distinct from proposed paragraph (a)(14), which allows additional
information to be requested within the NOFO. If an application caused
concern or failed to address all required information, proposed
paragraph (c) would allow VA to collect all necessary information to
properly evaluate each applicant or grantee.
81.30 Threshold Requirements Prior to Scoring Legal Assistance Grant
Applicants
Proposed 38 CFR 81.30 would set forth the threshold requirements
that must be met before VA would score legal assistance grant
applicants pursuant to Sec. 81.35.
Proposed paragraphs (a) through (h) of Sec. 81.30 would state that
an application would be scored by VA if it demonstrates that the entity
is eligible to receive a legal assistance grant under Sec. 81.10; if
it is filed within the time period established in the NOFO and any
additional information or documentation requested by VA under Sec.
81.25(c) is provided within the time frame established by VA; if it is
completed in all parts; if the activities for which the legal
assistance grant is requested would be eligible for funding under this
part; if the applicant's proposed participants would be eligible to
receive legal assistance under this part; if the applicant agrees to
comply with the requirements of this part; if the applicant does not
have an outstanding obligation to the Federal government that is in
arrears and does not have an overdue or unsatisfactory response to an
audit; and if the applicant is not in default by failing to meet the
requirements for any previous Federal assistance.
By establishing these threshold requirements in regulation,
applicants would be able to clearly determine whether they meet the
minimum standard before beginning the intensive process of preparing
and submitting a legal assistance grant application. This section would
serve as an administrative checklist for applicants and would be
similar to the LSV-H grant program (see 38 CFR 79.30). These threshold
requirements would also ensure that VA could effectively utilize its
resources by scoring only complete applications that could be eligible
to receive a legal assistance grant.
81.35 Scoring Criteria for Legal Assistance Grant Applicants
Proposed 38 CFR 81.35 would set forth the criteria to score legal
assistance grant applicants. VA would establish scoring criteria for
awarding grants to allow VA to distribute legal assistance grants
consistent with section 548(b) of the Act and VA's goals and objectives
for the Grant Program, which would be further detailed in the NOFO.
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This section would not include specific point values for each
criterion but would state that point values would be set forth in the
NOFO. This would provide VA the flexibility to adjust point values
throughout the administration of the Grant Program, if necessary.
Values for these criteria could vary according to their likelihood to
impact the successful development and operation of the applicant's
program. The proposed scoring criteria would be substantially similar
to those developed for the LSV-H grant program (see 38 CFR 79.35).
Proposed 38 CFR 81.35(a) would state that VA would award points
based on the background, qualifications, experience, and past
performance of the applicant and any subcontractors identified by the
applicant in the legal assistance grant application, as demonstrated by
the criteria described in proposed paragraphs (a)(1) and (2) of this
section. These criteria would ensure that the applicant has the
necessary and relevant background as well as the experience to provide
legal assistance consistent with section 548(b)(6)(A) of the Act.
Background and organizational history. Proposed 38 CFR 81.35(a)(1)
would establish how VA would assess an applicant's background and
organizational history. VA would score an applicant's background and
organizational history relevant to the provision of legal assistance.
VA would also score whether the applicant maintains organizational
structures with clear lines of reporting and defined responsibilities,
as well as whether the applicant has a history of complying with
agreements and not defaulting on financial obligations. All
``background and organizational history'' requirements listed for an
applicant would also be scored for any subcontractors identified by the
applicant.
Organization and staff qualifications. Proposed paragraph (a)(2)
would establish how VA would assess an applicant's organization and
staff qualifications. VA would award points based on the applicant's
experience working with and providing legal assistance to individuals
who would meet the criteria for eligibility specified in Sec. 81.15.
VA would consider an applicant's experience working with former members
of the Armed Forces, who are the individuals eligible for legal
assistance under proposed Sec. 81.15, as well as an applicant's
experience working with VA programs and services important to ensure
the needs of eligible individuals will be met through the Grant
Program. This would be especially relevant given that the legal
assistance available under the Grant Program concerns only VA programs
and services and military service-related matters.
Applicants would be scored based on their qualifications to provide
legal assistance, including the professional qualifications of staff
and the ability to properly supervise law students, if applicable.
Scoring would take into consideration whether attorneys are properly
licensed, in good standing as a member of their State bar, and not
subject to professional disciplinary action. Scoring would also
consider whether an applicant associated with a law school has
appropriate staff to meet applicable standards for supervising law
students engaged in student practice. The rules for supervising law
students eligible to practice law under the supervision of a practicing
attorney vary among jurisdictions.
To ensure that Grant Program resources could be allocated
appropriately, VA would award points based on the experience of the
applicant's staff in administering programs similar to the Grant
Program. All ``organization and staff qualifications'' requirements
listed for an applicant would also be scored for any subcontractors
identified by the applicant.
Proposed paragraph (b) would state that VA would award points based
on the applicant's program concept and legal assistance plan, as
demonstrated by the criteria listed in proposed paragraphs (b)(1)
through (7). These criteria would be used to determine whether the
applicant has a fully developed program concept and plan able to meet
the intent of section 548(b) of the Act and this part. These criteria
would be instrumental in assessing the potential effectiveness of an
applicant's proposed program and allocating resources to the greatest
benefit of eligible individuals.
Need for the program. Proposed 38 CFR 81.35(b)(1) would establish
how VA would assess the need for the program. Applicants would receive
points based on the ability to demonstrate a need amongst eligible
individuals, as well as an understanding of the legal assistance needs
unique to eligible individuals, in the area or community the program
would serve. VA would also consider the applicant's demonstration of
need for financial assistance from the legal assistance grant to serve
eligible individuals. These selection criteria would be consistent with
section 548(b)(6)(B) and (C) of the Act.
Outreach and screening plan. Proposed 38 CFR 81.35(b)(2) would
establish how VA would assess the applicant's outreach and screening
plan for eligible individuals. Applicants would receive points based on
their outreach and referral plan to identify and assist eligible
individuals in need of legal assistance covered by the Grant Program.
Applicants would also need to demonstrate a plan to process and receive
legal assistance referrals and assess and accommodate the needs of
referred eligible individuals.
Program concept. Proposed paragraph (b)(3) would establish that
points would be awarded based on the feasibility of the applicant's
program concept, size, scope, and staffing plan. Program concept
scoring would also include whether the applicant's program is
sufficiently designed to meet the legal needs of eligible individuals.
Program implementation timeline. Proposed paragraph (b)(4) would
establish that points would be awarded based on the timeliness of the
proposed program. This would account for the applicant's ability to
begin providing legal assistance to eligible individuals as quickly as
possible and within a specified timeline. Applicants would also be
scored on the timeliness of their hiring plan or their plan to utilize
present staff for the program.
Collaboration and communication with VA. Proposed paragraph (b)(5)
would establish that points would be awarded based on the applicant's
plan to coordinate services with local VA facilities.
Ability to meet Grant Program expectations. Proposed paragraph
(b)(6) would establish that points would be awarded based on the
demonstration of commitment to ensuring the applicant's program meets
VA's requirements, goals, and objectives for the Grant Program as
specified in the NOFO.
Capacity to undertake program. Proposed paragraph (b)(7) would
establish that points would be awarded based on whether the applicant
has sufficient capacity, including staff resources, to undertake the
proposed program.
Proposed paragraph (c) would state that VA would award points based
on the applicant's quality assurance and evaluation plan, as
demonstrated by the criteria in proposed paragraphs (c)(1) through (4).
These factors would be used to assess whether applicants will be
equipped to adequately evaluate, monitor, report on, remediate, and
manage the proposed program. These criteria would ensure that
applicants selected for participation in the Grant Program would be
able to provide the
[[Page 80179]]
information needed by VA to routinely assess the effectiveness of the
Grant Program.
Program evaluation. Proposed paragraph (c)(1) would establish that
points would be awarded based on the creation of clear, realistic, and
measurable metrics that align with the Grant Program's aim of
addressing the legal needs of eligible individuals and through which
the applicant's program performance can be continually evaluated.
Monitoring. Proposed paragraph (c)(2) would establish that points
would be awarded based on the applicant's ability to monitor the
proposed program. Points awarded would consider whether the applicant
has adequate controls in place to regularly monitor the program,
including any subcontractors, for compliance with all applicable laws,
regulations, and guidelines. Whether the applicant has adequate
financial and operational controls in place to ensure the proper use of
legal assistance grant funds would also be considered. VA would score
the feasibility of the applicant's plan for ensuring that their staff,
and any subcontractors, are appropriately trained and comply with the
requirements of part 81.
Remediation. Proposed paragraph (c)(3) would establish that points
would be awarded based on the applicant's plan to establish a system to
remediate noncompliant aspects of the program if and when they are
identified.
Management and reporting. Proposed paragraph (c)(4) would establish
that points would be awarded based on whether the applicant's program
management team has the capability and a system in place to provide
timely and accurate reports at the frequency set by VA.
Proposed paragraph (d) would state that VA would award points based
on the applicant's financial capability and plan, as demonstrated by
the criteria listed in proposed paragraphs (d)(1) and (2). These
criteria ensure that funds would be provided only to applicants who
have considered the costs and have an acceptable plan to secure
necessary funding for the consistent provision of legal assistance to
eligible individuals.
Organizational finances. Proposed paragraph (d)(1) would establish
that points would be awarded based on the financial stability of the
applicant and any identified subcontractors.
Financial feasibility of the program. Proposed paragraph (d)(2)
would establish that points would be awarded based on the applicant's
plan to obtain all funding necessary to operate the proposed program
for the period of the legal assistance grant. VA would also score the
cost-effectiveness of the applicant's proposed program and the ability
to effectively implement it on-budget.
Proposed paragraph (e) would state that VA would award points based
on the applicant's connections within the community, a factor VA
considers key to ensuring the success of the applicant's proposed
program and the Grant Program overall. Applicants would demonstrate
this through the criteria listed in proposed paragraphs (e)(1) through
(4). VA acknowledges that applicants may not have existing
relationships but could develop them over time. Additionally, VA
understands that applicants without these connections could obtain them
through relationships with community partners.
Area or community linkages. Proposed paragraph (e)(1) would
establish that points would be awarded based on the applicant's plan to
develop or rely on existing linkages with VA, Federal, State, local,
and tribal governments, agencies, and private entities for the purpose
of providing additional legal assistance to eligible individuals.
Past working relationships. Proposed paragraph (e)(2) would
establish that points would be awarded based on the applicant's (or
applicant's staff's), and any identified subcontractors' (or
subcontractors' staff's) successful past working relationships and
linkages with public and private organizations that provide legal and
non-legal supportive services to eligible individuals.
Local presence and knowledge. Proposed paragraph (e)(3) would
establish that points would be awarded based on the applicant's
presence in the area or community to be served by the applicant, as
well as the applicant's understanding of the dynamics of that area or
community.
Integration of linkages and program concept. Proposed paragraph
(e)(4) would establish that points would be awarded based on how the
applicant's linkages to the area or community would enhance the
effectiveness of the proposed program.
81.40 Selection of Grantees
Proposed 38 CFR 81.40 would set forth the process for awarding
legal assistance grants to applicants. These criteria would be
consistent with the selection criteria in section 548(b)(6) of the Act
and similar to the LSV-H grant program (see 38 CFR 79.40).
Proposed paragraph (a) would state that VA would score all
applicants meeting the threshold requirements specified in Sec. 81.30
using the scoring criteria specified in Sec. 81.35.
Proposed paragraph (b) would state that applicants would be grouped
within the applicable funding priorities if such priorities are set
forth in the NOFO. Establishing funding priorities in the NOFO would
provide VA the flexibility to update changing priorities quickly and
efficiently throughout the conduct of the Grant Program.
Proposed paragraph (c) would state that applicants receiving the
minimum amount of total points and points per category set forth in the
NOFO would be ranked in order from highest to lowest scores, within
their respective funding priority group, if any. The minimum amount of
total points and points per category would be specified in the NOFO and
could change annually. Establishing point values in the NOFO would
provide VA the flexibility to address changing requirements throughout
the administration of the Grant Program.
Proposed paragraph (d) would state that VA would use the
applicant's ranking as the primary basis for selection for funding. VA
would ensure that at least one legal assistance grant is distributed to
an eligible entity in each State, if VA determines that there is such
an entity in a State that has applied for a legal assistance grant and
meets the requirements specified in Sec. 81.30. This would be
consistent with the requirement specified in section 548(b)(3) of the
Act and would also account for the requirement to consider the
geographic diversity of applicants specified in section 548(b)(6)(D) of
the Act.
Proposed 38 CFR 81.40(e) would state that VA would fund the
highest-ranked applicants for which funding is available, within the
highest funding priority group, if any, subject to the provisions of
proposed paragraph (d) of this section. If funding priorities have been
established, VA would select applicants in the next highest funding
priority group based on their rank within that group, to the extent
funding is available and subject to the provisions of proposed
paragraph (d) of this section.
Proposed paragraph (f) would state that VA could select an
applicant for funding when sufficient funds become available if the
applicant would have been selected but for a procedural error committed
by VA. This provision would apply only if there is no material change
in the information that would have resulted in the applicant's
selection. A new application would not be required.
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Sec. 81.45 Scoring Criteria for Grantees Applying for Renewal of Legal
Assistance Grants
Proposed 38 CFR 81.45 would set forth the criteria to score legal
assistance grantees applying for renewal of a previously awarded grant.
Utilization of these scoring criteria would allow VA to review and
evaluate grantees appropriately to ensure that only successful programs
would receive additional grant funding. These criteria would be
consistent with section 548(b) of the Act and similar to the LSV-H
grant program (see 38 CFR 79.45).
Proposed paragraph (a) would state that VA would award points based
on the success of the grantee's program. Success would be determined by
the overall satisfaction of program participants, if such information
was available, as well as the timeliness of the legal assistance
provided to participants by the grantee. VA would score how well the
grantee developed and sustained relationships with community partners
to refer eligible individuals in need of legal assistance. Grantees
would also be scored on their effectiveness in conducting outreach to
eligible individuals, demonstrated through increased engagement of
participants.
Proposed paragraph (b) would state that VA would award points based
on the cost effectiveness of the grantee's program, demonstrated by
showing that the cost per participant was reasonable and that the
program was effectively implemented within budget.
Proposed paragraph (c) would state that VA would award points based
on how well the program complied with Grant Program goals and
requirements. VA would consider whether the grantee's program was
administered in accordance with VA's goals for the Grant Program as
described in the NOFO; with all applicable laws, regulations, and
guidelines; and with the legal assistance grant agreement.
Proposed paragraph (d) would state that VA would award points based
on the continued need of the grantee's program for financial assistance
from the Grant Program to serve eligible individuals. This would be
consistent with section 548(b)(6)(C) of the Act.
81.50 Selection of Grantees for Renewal of Legal Assistance Grants
Proposed 38 CFR 81.50 would set forth the process for selecting
grantees applying for renewal of legal assistance grants. VA would
score grantees seeking renewal using a simplified process considering
the success, cost effectiveness, and compliance of their program with
Grant Program expectations. These criteria would be consistent with
section 548(b) of the Act and similar to the LSV-H grant program (see
38 CFR 79.50).
Proposed 38 CFR 81.50(a) would state that VA would score all
grantees meeting the threshold requirements specified in Sec. 81.30
using the scoring criteria specified in Sec. 81.45.
Proposed paragraph (b) would state that grantees receiving the
minimum amount of total points and points per category set forth in the
NOFO would be ranked in order from highest to lowest scores.
Proposed paragraph (c) would state that VA would use the grantee's
ranking as the basis for selection for funding and would fund the
highest-ranked grantees for which funding is available.
Proposed paragraph (d) would state that VA could award any
deobligated funds to an applicant or existing grantee at its
discretion. If VA chose to award deobligated funds to an applicant or
existing grantee, proposed paragraph (d)(1) would state that VA could
first offer the deobligated funds to the applicant or grantee with the
highest score under the relevant NOFO that applies for, or is awarded a
renewal grant in, the same community as, or a proximate community to,
the affected community. Such applicant or grantee would have to have
the capacity and agree to provide prompt services to the affected
community.
The relevant NOFO refers to the most recently published NOFO which
covers the geographic area including the affected community, or for
multi-year grant awards, the NOFO for which the grantee, who is offered
additional funds, received the multi-year award. If the first such
applicant or grantee offered the deobligated funds refuses, proposed
paragraph (d)(2) would state that VA could then offer the deobligated
funds to the next highest-ranked applicant or grantee, per the criteria
in proposed paragraph (d)(1) of this section. VA would continue on in
rank order until the deobligated funds were awarded. Under proposed
paragraph (d)(3), VA could offer to award funds under other conditions,
or could choose not to award the deobligated funds at all, when VA
deems it appropriate based on other relevant factors.
Proposed paragraph (e) would state that VA could select a grantee
for renewed funding when sufficient funds become available if the
grantee would have been selected for renewal but for a procedural error
committed by VA. This provision would apply only if there is no
material change in the information that would have resulted in the
grantee's selection. A new application would not be required.
81.55 General Operation Requirements
Proposed 38 CFR 81.55 would set forth the requirements for the
operation of legal assistance programs administered pursuant to this
part. These requirements would further the effective administration of
the grantee's program, ensure that the legal needs of eligible
individuals are being properly addressed, and would be similar to the
LSV-H grant program (see 38 CFR 79.55).
Eligibility documentation. Proposed paragraph (a) would explain how
grantees must handle and record the eligibility of participants. Prior
to providing legal assistance, grantees must verify and document an
individual's eligibility using the criteria specified in Sec. 81.15.
Once a grantee begins providing legal assistance, the grantee must
continue to provide legal assistance as long as the participant remains
eligible and has a need for legal assistance. If a participant becomes
ineligible or the grantee is unable to meet the participant's legal
needs, the grantee would be required to provide information about other
programs and resources or provide a referral to another organization
able to meet the participant's need.
Legal assistance documentation. Proposed paragraph (b) would
explain how grantees must document information about the legal
assistance provided to participants. Grantees would have to document
the legal assistance provided and how it was provided. Grantees would
have to document the duration of the legal assistance provided and
document the goals for the provision of such assistance. Grantees would
also have to document any measurable outcomes of the legal assistance
provided as determined by VA, such as whether the participant's legal
issue was resolved. This information is necessary to VA to evaluate the
success of the Grant Program and how to allocate funds.
Confidentiality. Proposed paragraph (c) would explain that grantees
must maintain the confidentiality of participant records related to the
provision of legal assistance. Grantees would have to establish and
implement procedures ensuring the confidentiality of participant
records, as well as information related to the address or location
where legal assistance is provided. The procedures established by a
grantee must be consistent with the attorney-client confidentiality
rules of the applicable State bar.
[[Page 80181]]
Notifications to participants. Proposed paragraph (d) would explain
that grantees would need to provide certain information to
participants. Prior to providing legal assistance, grantees would
inform participants that legal assistance is being paid for, in whole
or in part, by VA. Participants would also have to be notified of the
specific type of legal assistance available through the grantee's
program, as well as any conditions or restrictions on the receipt of
legal assistance by the participant.
Assessment of funds. Proposed paragraph (e) would explain that
grantees must regularly assess how grant funds can be used alongside
other available funds and services to ensure the continuity of program
operations and assist participants. This would encourage grantees to
search for and leverage additional resources that could improve the
grantee's program and the legal and non-legal needs of participants.
Administration of legal assistance grants. Proposed paragraph (f)
would explain that grantees must properly administer legal assistance
grants. This would include compliance with the requirements of this
part, with the legal assistance grant agreement, and with other
applicable Federal, State, and local laws and regulations. Grantees
would also be responsible for ensuring that the activity of
subcontractors is in compliance.
While proposed Sec. 81.55 would not include a reporting
requirement for the information required from grantees in this section,
grantees would be required to include such information in a report to
VA as required and specified in Sec. 81.95. This report, discussed in
further detail in the discussion of Sec. 81.95 below, would contain
information relating to a grantee's operational effectiveness, fiscal
responsibility, compliance with the legal assistance grant agreement,
and legal and regulatory compliance. Additionally, the records required
under this section would need to be maintained for at least three years
as specified in Sec. 81.100, which is also discussed in further detail
below. These provisions would be consistent with the reporting
requirement found in section 548(b)(7) of the Act.
81.60 Fee Prohibition
Proposed 38 CFR 81.60 would explain that grantees would be
prohibited from charging a fee to participants for providing legal
assistance funded by a legal assistance grant under this part. This
prohibition would be mandated by section 548(b) of the Act, which
requires ``pro bono legal assistance'' for the program and would be
similar to the LSV-H grant program (see 38 CFR 79.60).
We note that attorneys providing services in connection with
representation for benefits outside of this Grant Program may be
eligible to recover fees and expenses under the provisions of 38 CFR
14.636 and 14.637. Section 14.636 authorizes accredited agents and
attorneys to collect reasonable fees directly related to the
representation of individuals before VA and the Board of Veterans'
Appeals through a fixed fee, an hourly rate, a percentage of benefits
recovered, or a combination of such bases. Section 14.637 authorizes
accredited agents and attorneys to be reimbursed for certain
nonrecurring expenses such as travel, copying records, and expert
opinions incurred directly in the prosecution of a claim for benefits.
However, because the attorneys providing legal assistance under the
Grant Program must provide such assistance pro bono in accordance with
the authorizing statute, the fee prohibition in proposed Sec. 81.60
would apply irrespective of the provisions in Sec. 14.636. The fee
prohibition in proposed Sec. 81.60 would also apply despite the
ability for accredited attorneys and agents outside of this program to
collect certain reimbursement expenses under Sec. 14.637 because these
fees are only authorized pursuant to a fee agreement, and a fee
agreement would not be executed in the provision of pro bono legal
assistance under the Grant Program.
Sec. 81.65 Notice of Funding Opportunity
Proposed 38 CFR 81.65 would provide information on the Notice of
Funding Opportunity (NOFO). The NOFO would be a formal announcement
published on <a href="http://www.grants.gov">www.grants.gov</a> that communicates specific details about
the availability and award of legal assistance grants to the public.
This section would be similar to the LSV-H grant program (see 38 CFR
79.65).
This section would explain what would be identified in the NOFO,
including the location to obtain legal assistance grant applications,
as well as the date, time, and place to submit completed applications.
The NOFO would identify the estimated amount and type of funding
available, including the maximum amount and the length of each award.
The NOFO would identify specific point values for each criterion
specified in proposed Sec. 81.35 and 81.45 along with the minimum
number of total points and points per category that an applicant or
grantee would need to receive for a legal assistance grant to be
funded. The NOFO would identify any maximum uses of grant funds for
specific types of legal assistance and the timeframes and manner of
payment for legal assistance grants. The NOFO would also identify any
additional information necessary for the application process as
determined by VA, including the requirements, goals, and objectives of
the Grant Program.
Sec. 81.70 Legal Assistance Grant Agreements
Proposed 38 CFR 81.70 would provide information on legal assistance
grant agreements, which would be the written agreements executed
between VA and grantees. These agreements would be legally enforceable
and provide assurance to VA that grantees would use awarded funds
properly. This section would be similar to the LSV-H grant program (see
38 CFR 79.70).
Proposed paragraph (a) would state that VA would draft and execute
a legal assistance grant agreement with an applicant after the
applicant is selected for a legal assistance grant in accordance with
Sec. 81.40. Upon execution of the agreement, VA would obligate funds
to cover the amount of the approved legal assistance grant, subject to
the availability of funding. The grantee would be required to agree,
and ensure that each subcontractor agrees, to operate the program in
accordance with their application and the provisions of part 81.
Grantees would also need to agree to comply with other terms and
conditions established by VA for purposes of carrying out the Grant
Program in an effective and efficient manner. Such terms and conditions
would include recordkeeping and reports for program monitoring and
evaluation purposes. Grantees would be required to agree to provide
additional information deemed appropriate by VA.
Proposed paragraph (b) would state that VA would draft and execute
a legal assistance grant agreement with a grantee after such grantee is
selected for grant renewal in accordance with Sec. 81.50. Upon
execution of the agreement, VA would obligate funds to cover the amount
of the approved legal assistance grant, subject to the availability of
funding. The renewed legal assistance grant agreement would contain the
same provisions described in proposed Sec. 81.70(a).
Proposed paragraph (c) would explain that Grant Program funds could
not be used to replace Federal, State, tribal, or local funds
previously used, or designated for use, to assist eligible individuals.
[[Page 80182]]
Sec. 81.75 Program or Budget Changes and Corrective Action Plans
Proposed 38 CFR 81.75 would set forth the process for modifications
to a grantee's program or budget and would provide for the use of a
corrective action plan (CAP). These provisions would provide necessary
oversight and control of grantees' programs, allowing VA to address
deficiencies and ensure grant funds are used properly. This section
would be similar to the LSV-H grant program (see 38 CFR 79.75).
Proposed paragraph (a) would state that a grantee must submit a
written request to VA to modify a legal assistance grant for any
proposed significant change that would alter its legal assistance
program. If approved, VA would issue a written amendment to the legal
assistance grant agreement. A grantee would need to receive VA approval
prior to implementing a significant change.
Proposed paragraph (a)(1) would state that significant changes
would include--but would not be limited to--a change in the grantee or
any subcontractors identified in the legal assistance grant agreement;
a change in the area or community served by the grantee; additions or
deletions of legal assistance provided by the grantee; a change in
category of eligible individuals to be served; and a change in budget
line items that are more than ten percent of the total legal assistance
grant award.
Proposed paragraph (a)(2) would state that VA's approval of changes
would be contingent upon the grantee's amended application retaining a
sufficient rank to have been competitively selected for funding in the
year the application was granted. Modification requests would need to
contain a description of, and justification for, the revised proposed
use of legal assistance grant funds.
Proposed paragraph (b) would state that VA could require a grantee
to initiate, develop, and submit a CAP if, on a quarterly basis, actual
legal assistance grant expenditures vary from the amount disbursed to a
grantee for that same quarter or actual legal assistance grant
activities vary from the grantee's program description provided in the
legal assistance grant agreement.
A CAP would need to identify the expenditure or activity source
that has caused the deviation, describe the reason(s) for the variance,
and provide specific proposed corrective action(s) and a timetable for
accomplishment of the corrective action. After receipt, VA would inform
the grantee, by letter, whether the CAP is approved or disapproved. If
the CAP is disapproved, VA would make suggestions to improve the
proposed CAP and request resubmission. VA could also take other
remedial actions in accordance with this part.
Proposed paragraph (c) would state that grantees must inform VA in
writing of any grantee address changes and key personnel changes, such
as a new executive director, legal assistance grant program director,
or chief financial officer. Notice of these changes would need to be
given to VA within 30 days of the change.
Sec. 81.80 Faith-Based Organizations
Proposed 38 CFR 81.80 would state that faith-based organizations
would be eligible, on the same basis as other organizations, to
participate in the Grant Program under this part. This section would
reference the requirements of 38 CFR part 50. Part 50 explains that
faith-based organizations are eligible to participate in VA's grant-
making programs on the same basis as any other organizations, that VA
will not discriminate against faith-based organizations in the
selection of service providers, and that faith-based and other
organizations may request accommodations from program requirements and
may be afforded such accommodations in accordance with Federal law.
VA would apply the provisions of part 50 to the Grant Program
established under part 81. However, we would not restate the provisions
of part 50 in part 81. In the event that VA makes future amendments to
part 50, such amendments would apply to the Grant Program without
further need to amend part 81.
Sec. 81.85 Visits To Monitor Operations and Compliance
Proposed 38 CFR 81.85 would set forth VA's authority to conduct
visits for the purpose of inspecting a grantee's legal assistance grant
program for compliance with the requirements of this part. The ability
to conduct inspections and monitor operations would provide critical
oversight for legal assistance grants and would be similar to the LSV-H
grant program (see 38 CFR 79.85).
Proposed paragraph (a) would authorize VA to make visits at
reasonable times to all grantee locations where legal assistance grant
funds are being utilized. The purpose of these visits would be to
review grantee accomplishments and management control systems and to
provide technical assistance as required. VA would conduct these
inspections of program locations and records of a grantee at such times
as necessary to determine compliance with the provisions of this part.
If the visit would be to the premises of the grantee or a
subcontractor, the grantee, and any subcontractor, would need to
provide all reasonable facilities and assistance for the safety and
convenience of the VA representatives in the performance of their
duties. If legal assistance would be provided at a participant's home
or a location away from the grantee's place of business, VA could
accompany the grantee but would only visit a participant's home with
consent of the participant. All visits and evaluations would be
performed in such a manner as to not unduly delay services.
Proposed paragraph (b) would clarify that the authority to inspect
would not provide VA with authority over the management or control of
any applicant or grantee under this part.
Sec. 81.90 Financial Management and Administrative Costs
Proposed 38 CFR 81.90 would set forth the financial management
expectations for grant funds. While this section would specifically
mention certain general principles, it would also orient readers to the
full financial management requirements of 2 CFR part 200. This
reference would ensure that applicants and grantees would be aware that
legal assistance grants would be subject to the additional requirements
of part 200. VA would refer to part 200 rather than including all
applicable provisions to prevent the necessity of changes to this part
if changes to part 200 are later made. This section would be similar to
the LSV-H grant program (see 38 CFR 79.90).
Proposed paragraph (a) would state that grantees must comply with
applicable requirements of the Uniform Administrative Requirements,
Cost Principles, and Audit Requirements for Federal Awards under 2 CFR
part 200, which applies to all Federal funds awarded to non-Federal
entities.
Proposed 38 CFR 81.90(b) would state that grantees must use a
financial management system that provides adequate fiscal control and
accounting records and meets the requirements established in 2 CFR part
200. Financial management requirements are currently located in Sec.
200.302.
Proposed 38 CFR 81.90(c) would state that payment up to the amount
specified in the legal assistance grant must be made only for
allowable, allocable, and reasonable costs in conducting the work under
the grant. The determination of allowable costs would need to be made
in accordance with the applicable
[[Page 80183]]
Federal cost principles found in 2 CFR part 200. Cost principles are
currently located in Sec. Sec. 200.400 through 200.476.
Proposed 38 CFR 81.90(d) would adopt the requirement in 2 CFR
200.414, or successor regulations, that all grantees may request
indirect costs by applying the negotiated indirect cost rate
established with their Federal cognizant agency; by applying a de
minimis rate as described in 2 CFR 200.414(f), or successor
regulations, if they do not have a negotiated indirect cost rate; or
requesting to negotiate an indirect cost rate with VA or their Federal
cognizant agency.
Sec. 81.95 Grantee Reporting Requirements
Proposed 38 CFR 81.95 would set forth the reporting requirements
for legal assistance grantees. These requirements would be consistent
with section 548(b)(7) of the Act, which states that legal assistance
grantees must report on their activities and the utilization of grant
funds in accordance with criteria established by VA. These requirements
would allow for oversight and prudent management of taxpayer dollars
and would be similar to the LSV-H grant program (see 38 CFR 79.95).
Proposed 38 CFR 81.95(a) would state that VA could require grantees
to provide, in such form as may be prescribed, such reports or answers
in writing to specific questions, surveys, or questionnaires as VA
determines necessary to carry out the Grant Program.
Proposed paragraph (b) would state that grantees must submit to VA
at least once per year, or at another frequency set by VA, a report
containing information on the grantee's performance under the Grant
Program. This report would contain data concerning the operational
effectiveness and fiscal responsibility of the grantee, as well as the
grantee's compliance with the legal assistance grant agreement and all
applicable laws and regulations. The report would need to include a
breakdown of how the grantee utilized legal assistance grant funds, the
number of participants assisted, and describe the legal assistance
provided to participants. Because the Grant Program would serve an
expanded population of eligible individuals, this report would also
need to include critical data on each participant, including gender,
age, race, service era, branch of service, component, and status of
military discharge or characterization of service. The information
specified in proposed paragraph (b) would be critical to analyze and
monitor the grantee's performance, and VA would be able to request any
additional information if necessary.
Proposed paragraph (c) would state that VA retains the discretion
to request additional reports or information needed to fully assess the
provision of legal assistance under this part. This inclusive provision
would allow VA to collect all necessary information to properly assess
and develop the Grant Program, and VA anticipates that requests under
proposed paragraph (c) would vary on a based on the grantee's
circumstances. This provision would also allow VA to clarify any
information received in other reports from a grantee, if necessary.
Proposed paragraph (d) would state that grantees must connect
financial data to performance data and develop unit cost information
whenever practical. This data would be instrumental in evaluating the
financial efficiency of the grantee's program and the individual legal
assistance provided.
Proposed paragraph (e) would state that all pages of reports must
cite the grantee's legal assistance grant number and be submitted in a
timely manner as specified in the grant agreement.
Proposed paragraph (f) would state that grantees must provide
consent to post report information on the internet and in other ways
deemed appropriate by VA. Additionally, grantees would be required to
redact confidential information based on attorney-client privilege,
unless the privilege has been waived by the client. These provisions
would allow VA to keep the public informed of the availability and
progression of the Grant Program.
Sec. 81.100 Recordkeeping
Proposed 38 CFR 81.100 would set forth the recordkeeping
requirements for legal assistance grantees. To document compliance with
the requirements of the Grant Program, grantees would be required to
maintain all relevant records for three years (unless a longer period
is otherwise required by VA) and produce them upon request by VA.
Maintaining records for this period would provide VA the information it
needs to oversee and manage the Grant Program. This provision would be
consistent with the recordkeeping requirements for Federal awards found
in 2 CFR 200.334, as well as the reporting requirement found in section
548(b)(7) of the Act. This provision would also be similar to the LSV-H
grant program (see 38 CFR 79.100).
Sec. 81.105 Technical Assistance
Proposed 38 CFR 81.105 would explain that VA would provide
technical assistance to applicants and grantees, as necessary, to help
them meet the requirements of this part. This assistance would be
provided directly by VA or through contracts with appropriate public or
nonprofit private entities. Assistance could include resources for
planning, development, and provision of legal assistance to eligible
individuals. VA could also offer training sessions to help applicants
and grantees understand and implement the Grant Program. This section
would also be similar to the LSV-H grant program (see 38 CFR 79.105).
Sec. 81.110 Withholding, Suspension, Deobligation, Termination, and
Recovery of Funds by VA
Proposed 38 CFR 81.110 would explain that VA would enforce part 81
through appropriate actions such as withholding, suspension,
deobligation, termination, recovery of funds by VA, and any other
allowable actions in accordance with 2 CFR part 200. This section would
be similar to the LSV-H grant program (see 38 CFR 79.110).
Similar to proposed 38 CFR 81.90, proposed Sec. 81.110 would
reference 2 CFR part 200 to ensure that applicants and grantees would
be aware that legal assistance grants would be subject to the
additional requirements of part 200. Remedies for noncompliance and
collection of funds are currently located in Sec. Sec. 200.208,
200.305, 200.339 through 200.343, and 200.346. Rather than including
all applicable provisions, VA would refer to part 200 to prevent the
necessity of changes to part 81 if changes to part 200 are later made.
Certain enforcement actions under proposed 38 CFR 81.110, such as
suspension and termination, could result in a disruption of legal
assistance to participants. We do not propose to regulate the
responsibilities of grantees to continue providing services or to
coordinate the transfer of participants to other sources of legal
support. Instead, we would include such requirements and
responsibilities in the grant agreement that VA and the grantee would
enter into, which would ensure any disruption and impact on
participants is minimized as much as possible.
Sec. 81.115 Legal Assistance Grant Closeout Procedures
Proposed 38 CFR 81.115 would explain that legal assistance grants
would be closed out in accordance with the provisions of 2 CFR part
200. Similar to proposed 38 CFR 81.90 and 81.110, proposed Sec. 81.115
would reference 2 CFR part 200 to ensure that applicants and grantees
are aware that
[[Page 80184]]
legal assistance grants would be subject to these additional
requirements. VA would refer to part 200 rather than include the
relevant requirements in this section in case changes are later made to
part 200. Procedures for closing out Federal awards are currently
located in Sec. Sec. 200.344 and 200.345. 38 CFR 81.115 would be
similar to the LSV-H grant program (see 38 CFR 79.115).
Executive Orders 12866, 13563, and 14094
Executive Order 12866 (Regulatory Planning and Review) directs
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. Executive Order 14094 (Executive Order on
Modernizing Regulatory Review) supplements and reaffirms the
principles, structures, and definitions governing contemporary
regulatory review established in Executive Order 12866 of September 30,
1993 (Regulatory Planning and Review), and Executive Order 13563 of
January 18, 2011 (Improving Regulation and Regulatory Review). The
Office of Information and Regulatory Affairs has determined that this
rulemaking is not a significant regulatory action under Executive Order
12866, 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 hereby certifies that this proposed rule would not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act (5
U.S.C. 601-612). To the extent there is any such impact, it would
result in financial assistance to eligible entities who apply for a
legal assistance grant. Therefore, pursuant to 5 U.S.C. 605(b), the
initial and final regulatory flexibility analysis requirements of 5
U.S.C. 603 and 604 do not apply.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This proposed rule would have no such
effect on State, local, and tribal governments, or on the private
sector.
Paperwork Reduction Act
This proposed rule includes provisions constituting collections of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
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.
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. Section 81.25 contains application
provisions for legal assistance grants, including renewals. Section
81.75 contains provisions for program or budget changes and submission
of corrective action plans. Section 81.95 contains grantee reporting
requirements. These sections are collections of information under the
Paperwork Reduction Act of 1995. If OMB does not approve the
collections of information as requested, VA will immediately remove the
provisions containing a collection of information or take such other
action as is directed by OMB.
Comments on the new collection of information contained in this
rulemaking should be submitted through <a href="http://www.regulations.gov">www.regulations.gov</a>. Comments
should be sent within 60 days of publication of this rulemaking. The
collection 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. 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 collections of
information in--
<bullet> Evaluating whether the collections 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 collections 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 collections 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
contained in 38 CFR 81.25, 81.75, and 81.95 are described immediately
following this paragraph, under their respective titles.
Title: Application for the Legal Services for Veterans--Legal
Assistance for Access to VA Programs (LSV-A) Grant Program.
OMB Control No: 2900-xxxx (New/TBD).
CFR Provision: 38 CFR 81.25.
<bullet> Summary of collection of information: The new collection
of information in 38 CFR 81.25 contains application provisions for the
LSV-A Grant Program.
<bullet> Description of need for information and proposed use of
information: This information is needed to award legal assistance
grants to eligible entities.
<bullet> Description of likely respondents: Nonprofit private and
public legal service entities applying for grants.
<bullet> Estimated number of respondents per year: 100.
<bullet> Estimated frequency of responses: Once annually.
<bullet> Estimated average burden per response: 1,440 minutes.
<bullet> Estimated total annual reporting and recordkeeping burden:
2,400 hours.
<bullet> Estimated cost to respondents per year: Using VA's average
annual number of respondents, VA estimates the application information
collection burden cost to respondents as $137,112.00 per year * (2,400
burden hours x $57.13 per hour).
Title: Renewal Application for the Legal Services for Veterans--
Assistance with Access to VA Programs (LSV-A) Grant Program.
OMB Control No: 2900-xxxx (New/TBD).
CFR Provision: 38 CFR 81.25.
<bullet> Summary of collection of information: The new collection
of information in 38 CFR 81.25 requires grantees who want to renew
their LSV-A grant to file a renewal application.
[[Page 80185]]
<bullet> Description of need for information and proposed use of
information: VA needs this information to renew legal assistance grants
previously awarded.
<bullet> Description of likely respondents: Grant program grantees
seeking a renewal of funds.
<bullet> Estimated number of respondents: 85.
<bullet> Estimated frequency of responses: Once annually.
<bullet> Estimated average burden per response: 1,200 minutes.
<bullet> Estimated total annual reporting and recordkeeping burden:
1,700 hours.
<bullet> Estimated cost to respondents per year: Using VA's average
annual number of respondents, VA estimates the renewal application
information collection burden cost to respondents as $97,121.00 per
year * (1,700 burden hours x $57.13 per hour).
Title: Budget Changes and Corrective Action Plan (CAP) for the
Legal Services for Veterans--Legal Assistance for Access to VA Programs
(LSV-A) Grant Program.
OMB Control No: 2900-xxxx (New/TBD).
CFR Provision: 38 CFR 81.75.
<bullet> Summary of collection of information: The new collection
of information in 38 CFR 81.75 would require grantees to inform VA of
changes to their approved program through an amendment process.
<bullet> Description of need for information and proposed use of
information: This information is needed for a grantee to inform VA of
significant changes that will alter a grant program approved by VA. In
addition, VA may require grantees to initiate, develop, and submit to
VA for approval corrective action plans (CAPs) if actual legal
assistance grant expenditures vary from the amount disbursed to a
grantee for that same quarter or actual legal assistance grant
activities vary from the grantee's program description provided in the
LSV-A grant agreement.
<bullet> Description of likely respondents: Grantees who desire to
modify their approved grant program.
<bullet> Estimated number of respondents: 10.
<bullet> Estimated frequency of responses: Once annually.
<bullet> Estimated average burden per response: 120 minutes.
<bullet> Estimated total annual reporting and recordkeeping burden:
20 hours.
<bullet> Estimated cost to respondents per year: Using VA's average
annual number of respondents, VA estimates the total CAP information
collection burden cost to respondents as $1,142.60 per year * (20
burden hours x $57.13 per hour).
Title: Quarterly Performance Reporting Requirements for the Legal
Services for Veterans--Legal Assistance for Access to VA Programs (LSV-
A) Grant Program.
OMB Control No: 2900-xxxx (New/TBD).
CFR Provision: 38 CFR 81.95.
<bullet> Summary of collection of information: The new collection
of information in 38 CFR 81.95 would require the grantee to submit
reports pertaining to operational effectiveness and other applicable
LSV-A grant agreement requirements.
<bullet> Description of need for information and proposed use of
information: VA will use this information to determine grantee program
effectiveness and compliance with the requirements for the LSV-A Grant
Program.
<bullet> Description of likely respondents: Program grantees for
the current grant award year.
<bullet> Estimated number of respondents: 85.
<bullet> Estimated frequency of responses: Quarterly = 4 times per
year.
<bullet> Estimated average burden per response: 60 minutes.
<bullet> Estimated total annual reporting and recordkeeping burden:
340 hours.
<bullet> Estimated cost to respondents per year: Using VA's average
annual number of respondents, VA estimates the total performance report
information collection burden cost to respondents as $19,424.20 per
year * (340 burden hours for respondents x $57.13 per hour).
Title: Bi-Annual Finance Reporting Requirements for the Legal
Services for Veterans--Legal Assistance for Access to VA Programs (LSV-
A) Grant Program.
OMB Control No: 2900-xxxx (New/TBD).
CFR Provision: 38 CFR 81.95.
<bullet> Summary of collection of information: The new collection
of information in 38 CFR 81.95 would require the grantee to submit
reports pertaining to cost effectiveness, fiscal responsibility, and
other applicable LSV-A grant agreement requirements.
<bullet> Description of need for information and proposed use of
information: VA will use this information to determine grantee program
effectiveness and compliance with the requirements for the LSV-A Grant
Program.
<bullet> Description of likely respondents: Program grantees for
the current grant award year.
<bullet> Estimated number of respondents: 85.
<bullet> Estimated frequency of responses: Bi-annually = 2 times
per year.
<bullet> Estimated average burden per response: 60 minutes.
<bullet> Estimated total annual reporting and recordkeeping burden:
170 hours.
<bullet> Estimated cost to respondents per year: Using VA's average
annual number of respondents, VA estimates the total finance report
information collection burden cost to respondents as $9,712.10 per year
* (170 burden hours for respondents x $57.13 per hour).
* The total burden cost to respondents for the information
collections associated with the LSV-A Grant Program regulation is
estimated to be $264,511.90.
Assistance Listing
The Assistance Listing number and title for the program affected by
this document is 64.056, Legal Services for Veterans Grants.
List of Subjects in 38 CFR Part 81
Administrative practice and procedure; Armed Forces; Armed Forces
Reserves; Disability benefits; Grant programs--health; Grant programs--
law; Grant programs--social programs; Grant programs--veterans; Grants
administration; Health care; Lawyers; Legal services; Military law;
Military personnel; Nonprofit organizations; Public assistance
programs; Reporting and recordkeeping requirements; Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved and signed
this document on September 27, 2024, 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,
Regulation Development Coordinator, Office of Regulation Policy &
Management, Office of General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs proposes to amend 38 CFR chapter I to add part 81 to read as
follows:
PART 81--LEGAL SERVICES FOR VETERANS--LEGAL ASSISTANCE FOR ACCESS
TO VA PROGRAMS GRANT PROGRAM
Sec.
81.0 Purpose and scope.
81.5 Definitions.
81.10 Eligible entities.
81.15 Eligible individuals.
81.20 Legal assistance.
81.25 Applications for legal assistance grants.
81.30 Threshold requirements prior to scoring legal assistance grant
applicants.
81.35 Scoring criteria for legal assistance grant applicants.
[[Page 80186]]
81.40 Selection of grantees.
81.45 Scoring criteria for grantees applying for renewal of legal
assistance grants.
81.50 Selection of grantees for renewal of legal assistance grants.
81.55 General operation requirements.
81.60 Fee prohibition.
81.65 Notice of Funding Opportunity (NOFO).
81.70 Legal assistance grant agreements.
81.75 Program or budget changes and corrective action plans.
81.80 Faith-based organizations.
81.85 Visits to monitor operations and compliance.
81.90 Financial management and administrative costs.
81.95 Grantee reporting requirements.
81.100 Recordkeeping.
81.105 Technical assistance.
81.110 Withholding, suspension, deobligation, termination, and
recovery of funds by VA.
81.115 Legal assistance grant closeout procedures.
Authority: 38 U.S.C. 501, Section 548(b) of Pub. L. 116-283,
and as noted in specific sections.
Sec. 81.0 Purpose and scope.
(a) Purpose. This part implements the Legal Services for Veterans--
Legal Assistance for Access to VA Programs Grant Program to award
grants to eligible entities to establish new legal assistance clinics
or enhance existing legal assistance clinics or other pro bono efforts
providing legal assistance to eligible individuals.
(b) Scope. This part applies only to the provision of legal
assistance in locations other than VA facilities.
Sec. 81.5 Definitions.
For purposes of this part and any Notice of Funding Opportunity
(NOFO) issued under this part:
Applicant means an entity meeting the eligibility criteria of Sec.
81.10 that submits an application for a legal assistance grant
announced in a NOFO under this part.
Armed Forces has the meaning given to that term in 38 U.S.C.
101(10).
Grantee means an eligible entity that is awarded a legal assistance
grant under this part.
Legal assistance clinic means an entity or program whose primary
purpose is to provide legal assistance to individuals on a pro bono
basis.
Legal assistance grant means a grant awarded under this part.
Nonprofit entity means an entity that meets the requirements of 26
U.S.C. 501(c)(3), (6), or (19).
Notice of Funding Opportunity (NOFO) has the meaning given to this
term in 2 CFR 200.1, or successor regulations.
Participant means an individual meeting the eligibility criteria of
Sec. 81.15 who receives legal assistance from a grantee under this
part.
Reserve component has the meaning given to that term in 10 U.S.C.
10101.
State means any of the several States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, or any agency or instrumentality of a
State exclusive of local governments.
Subcontractor means any third-party contractor, of any tier,
performing work directly for an eligible entity.
Suspension means an action by VA that temporarily withdraws VA
funding under a legal assistance grant, pending corrective action by
the grantee or pending a decision by VA to terminate the legal
assistance grant. Suspension of a legal assistance grant is a separate
action from suspension under VA regulations or guidance implementing
Executive Orders 12549 and 12689, ``Debarment and Suspension.''
Withholding means that payment under a legal assistance grant will
not be made until such time as VA determines that the grantee provides
sufficiently adequate documentation and/or actions to correct a
deficiency for the legal assistance grant.
Sec. 81.10 Eligible entities.
To be an eligible entity under this part, the entity must be a
nonprofit or public entity that meets the following requirements.
(a) A nonprofit entity must be:
(1) A veterans service organization that is specifically focused on
assisting veterans and recognized by the Secretary in accordance with
38 U.S.C. 5902;
(2) An organization that is specifically focused on assisting
veterans but is not a veterans service organization under paragraph
(a)(1);
(3) An entity associated with a law school accredited by the
American Bar Association and specifically focused on assisting
veterans;
(4) A legal services organization; or
(5) A bar association.
(b) A public entity must be:
(1) A local government, which is a county, municipality, city,
town, township, local public authority (including any public and Indian
housing agency under the United States Housing Act of 1937), school
district, special district, intrastate district, council of governments
(whether or not incorporated as a nonprofit corporation under state
law), any other regional or interstate government entity, or any agency
or instrumentality of a local government;
(2) A State government; or
(3) A federally recognized Indian tribal government, which is the
governing body or a governmental agency of any Indian tribe, band,
nation, or other organized group or community (including any Native
village as defined in section 3 of the Alaska Native Claims Settlement
Act, 85 Stat 688) certified by the Secretary of the Interior as
eligible for the special programs and services provided by the Bureau
of Indian Affairs.
Sec. 81.15 Eligible individuals.
To be eligible for legal assistance under Sec. 81.20, an
individual must:
(a) Have served in the Armed Forces, including individuals who
served in a reserve component of the Armed Forces; and
(b) Have been discharged or released therefrom, regardless of the
conditions of such discharge or release. For the purpose of determining
eligibility, ``discharged or released'' refers to the official
termination of service in the component of the Armed Forces in which
the individual served.
Sec. 81.20 Legal assistance.
Legal assistance provided under this Grant Program is limited to
the following:
(a) Legal assistance with any VA program administered by the
Secretary.
Note to paragraph (a): A grantee must be accredited consistent with
Sec. Sec. 14.626 through 14.637 before acting as an agent or attorney
in the preparation, presentation, or prosecution of any claim under
laws administered by VA.
(b) Legal assistance associated with:
(1) Improving the status of a military discharge or
characterization of service in the Armed Forces, including through a
discharge review board; or
(2) Seeking a review of a military record before a board of
correction for military or naval records.
Sec. 81.25 Applications for legal assistance grants.
(a) To apply for a legal assistance grant, an applicant must submit
to VA a complete legal assistance grant application package, as
described in the NOFO. A complete legal assistance grant application
package includes the following:
(1) Documentation that demonstrates the applicant is an eligible
entity under Sec. 81.10;
(2) A description of the capacity of the applicant, and any
identified subcontractors, to provide legal assistance to eligible
individuals;
(3) A description of the legal assistance to be provided by the
applicant and the identified need for
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such legal assistance among eligible individuals;
(4) Documentation that demonstrates the applicant's need for
financial assistance from a legal assistance grant;
(5) A description of the geographic area or community served by the
applicant;
(6) A description of the physical location where the applicant will
provide legal assistance to eligible individuals, if applicable;
(7) A description of how the applicant will ensure that legal
assistance is provided to eligible individuals;
(8) A description of the characteristics of eligible individuals
who will receive legal assistance provided by the applicant;
(9) An estimate with supporting documentation of the number of
eligible individuals who will receive legal assistance provided by the
applicant;
(10) Documentation relating to the applicant's ability to maintain
appropriate levels of qualified staff and coordinate with any
identified subcontractors;
(11) Documentation relating to the applicant's capacity to
effectively administer a grant under this section that describes the
applicant's:
(i) Accounting practices and financial controls;
(ii) Capacity for data collection and reporting required under this
part; and
(iii) Experience administering other Federal, State, or county
grants similar to the Grant Program under this part.
(12) Documentation of the managerial capacity of the applicant to:
(i) Coordinate the provision of legal assistance by the applicant
or by other organizations on a referral basis;
(ii) Assess continuously the needs of participants for legal
assistance;
(iii) Coordinate the provision of legal assistance with services
provided by VA;
(iv) Customize legal assistance to the needs of eligible
individuals; and
(v) Comply with and implement the requirements of this part
throughout the term of the legal assistance grant;
(13) Documentation that demonstrates that adequate financial
support will be available to carry out the legal assistance for which
the grant is sought consistent with the application; and
(14) Any additional information as deemed appropriate by VA and
listed in the NOFO.
(b) Subject to funding availability, grantees may submit an
application for renewal of a legal assistance grant if the grantee's
program will remain substantially the same. To apply for renewal of a
legal assistance grant, a grantee must submit to VA a complete legal
assistance grant renewal application package, as described in the NOFO.
(c) VA may request in writing that an applicant or grantee, as
applicable, submit other information or documentation relevant to the
legal assistance grant application.
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-XXXX.)
Sec. 81.30 Threshold requirements prior to scoring legal assistance
grant applicants.
VA will only score applicants who meet the following threshold
requirements:
(a) The application demonstrates that the entity is eligible to
receive a legal assistance grant under Sec. 81.10;
(b) The application is filed within the time period established in
the NOFO, and any additional information or documentation requested by
VA under Sec. 81.25(c) is provided within the time frame established
by VA;
(c) The application is completed in all parts;
(d) The activities for which the legal assistance grant is
requested are eligible for funding under this part;
(e) The applicant's prospective participants are eligible to
receive legal assistance under this part;
(f) The applicant agrees to comply with the requirements of this
part;
(g) The applicant does not have an outstanding obligation to the
Federal government that is in arrears and does not have an overdue or
unsatisfactory response to an audit; and
(h) The applicant is not in default by failing to meet the
requirements for any previous Federal assistance.
Sec. 81.35 Scoring criteria for legal assistance grant applicants.
VA will score applicants who apply for a legal assistance grant. VA
will set forth specific point values to be awarded for each criterion
in the NOFO. VA will use the following criteria to score these
applicants:
(a) VA will award points based on the background, qualifications,
experience, and past performance of the applicant, and any
subcontractors identified by the applicant in the legal assistance
grant application, as demonstrated by the following:
(1) Background and organizational history.
(i) Applicant's, and any identified subcontractors', background and
organizational history relevant to providing legal assistance.
(ii) Applicant, and any identified subcontractors, maintain
organizational structures with clear lines of reporting and defined
responsibilities.
(iii) Applicant, and any identified subcontractors, have a history
of complying with agreements and not defaulting on financial
obligations.
(2) Organization and staff qualifications.
(i) Applicant, and any identified subcontractors, have experience
working with individuals who meet the eligible individual criteria in
Sec. 81.15.
(ii) Applicant, and any identified subcontractors, have experience
providing legal assistance to individuals who meet the eligible
individual criteria in Sec. 81.15.
(iii) Applicant's staff, and any identified subcontractors' staff,
are qualified to provide legal assistance, and as applicable, are in
good standing as a member of the applicable State bar. In the case of
an entity associated with a law school, applicant maintains appropriate
staff to meet applicable standards for supervising law students
authorized to practice within the jurisdiction.
(iv) Applicant's staff, and any identified subcontractors' staff,
have experience administering programs similar to the Grant Program
under this part.
(b) VA will award points based on the applicant's program concept
and legal assistance plan, as demonstrated by the following:
(1) Need for the program.
(i) Applicant has shown a need amongst eligible individuals in the
area or community where the program will be based.
(ii) Applicant demonstrates an understanding of the legal
assistance needs unique to eligible individuals in the area or
community where the program will be based.
(iii) Applicant has shown a need for financial assistance from a
legal assistance grant in order to serve eligible individuals.
(2) Outreach and screening plan.
(i) Applicant has a feasible outreach and referral plan to identify
and assist eligible individuals in need of legal assistance.
(ii) Applicant has a plan to process and receive legal assistance
referrals for eligible individuals.
(iii) Applicant has a plan to assess and accommodate the needs of
referred eligible individuals.
(3) Program concept.
(i) Applicant's program concept, size, scope, and staffing plan are
feasible.
(ii) Applicant's program is designed to meet the legal needs of
eligible individuals.
(4) Program implementation timeline.
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(i) Applicant's program will be implemented in a timely manner and
legal assistance will be delivered to eligible individuals as quickly
as possible and within a specified timeline.
(ii) Applicant has a feasible hiring plan in place to meet the
applicant's program timeline or has existing staff to meet such
timeline.
(5) Collaboration and communication with VA. Applicant has a
feasible plan to coordinate services with local VA facilities.
(6) Ability to meet Grant Program expectations. Applicant
demonstrates commitment to ensuring that its program meets VA's
requirements, goals, and objectives for the Grant Program as identified
in the NOFO.
(7) Capacity to undertake program. Applicant has sufficient
capacity, including staff resources, to undertake the program.
(c) VA will award points based on the applicant's quality assurance
and evaluation plan, as demonstrated by the following:
(1) Program evaluation. Applicant has created clear, realistic, and
measurable metrics that align with the Grant Program's aim of
addressing the legal needs of eligible individuals and through which
the applicant's program performance can be continually evaluated.
(2) Monitoring.
(i) Applicant has adequate controls in place to regularly monitor
the program, including any subcontractors, for compliance with all
applicable laws, regulations, and guidelines.
(ii) Applicant has adequate financial and operational controls in
place to ensure the proper use of legal assistance grant funds.
(iii) Applicant has a feasible plan for ensuring that the
applicant's staff and any subcontractors are appropriately trained and
comply with the requirements of this part.
(3) Remediation. Applicant has an appropriate plan to establish a
system for remediating noncompliant aspects of the program if and when
they are identified.
(4) Management and reporting. Applicant's program management team
has the capability and a system in place to provide to VA timely and
accurate reports at the frequency set by VA.
(d) VA will award points based on the applicant's financial
capability and plan, as demonstrated by the following:
(1) Organizational finances. Applicant, and any identified
subcontractors, are financially stable.
(2) Financial feasibility of the program.
(i) Applicant has a realistic plan for obtaining all funding
required to operate the program for the period of the legal assistance
grant.
(ii) Applicant's program is cost-effective and can be effectively
implemented on-budget.
(e) VA will award points based on the applicant's area or community
linkages and relations, as demonstrated by the following:
(1) Area or community linkages. Applicant has a plan for developing
or relying on existing linkages with Federal (including VA), State,
local, and tribal governments, agencies, and private entities for the
purpose of providing additional legal assistance to eligible
individuals.
(2) Past working relationships. Applicant (or applicant's staff),
and any identified subcontractors (or subcontractors' staff), have
fostered successful working relationships and linkages with public and
private organizations providing legal and non-legal supportive services
to eligible individuals.
(3) Local presence and knowledge.
(i) Applicant has a presence in the area or community to be served
by the applicant.
(ii) Applicant understands the dynamics of the area or community to
be served by the applicant.
(4) Integration of linkages and program concept. Applicant's
linkages to the area or community to be served by the applicant enhance
the effectiveness of the applicant's program.
Sec. 81.40 Selection of grantees.
VA will use the following process to select applicants to receive
legal assistance grants:
(a) VA will score all applicants that meet the threshold
requirements set forth in Sec. 81.30 using the scoring criteria set
forth in Sec. 81.35.
(b) VA will group applicants within the applicable funding
priorities if funding priorities are set forth in the NOFO.
(c) VA will rank those applicants who receive at least the minimum
amount of total points and points per category set forth in the NOFO,
within their respective funding priority group, if any. The applicants
will be ranked in order from highest to lowest scores, within their
respective funding priority group, if any.
(d) VA will use the applicant's ranking as the primary basis for
selection for funding. However, VA will ensure that legal assistance
grants are distributed to at least one eligible entity in each State,
if VA determines that there is such an entity in a State that has
applied for a legal assistance grant and meets the requirements set
forth in Sec. 81.30.
(e) Subject to paragraph (d) of this section, VA will fund the
highest-ranked applicants for which funding is available, within the
highest funding priority group, if any. If funding priorities have been
established, to the extent funding is available and subject to
paragraph (d) of this section, VA will select applicants in the next
highest funding priority group based on their rank within that group.
(f) If an applicant would have been selected but for a procedural
error committed by VA, VA may select that applicant for funding when
sufficient funds become available if there is no material change in the
information that would have resulted in the applicant's selection. A
new application will not be required for this purpose.
Sec. 81.45 Scoring criteria for grantees applying for renewal of
legal assistance grants.
VA will score grantees who are applying for a renewal of a legal
assistance grant. VA will set forth the specific point values to be
awarded for each criterion in the NOFO. VA will use the following
criteria to score grantees applying for renewal of a legal assistance
grant:
(a) VA will award points based on the success of the grantee's
program, as demonstrated by the following:
(1) Participants were satisfied with the legal assistance provided
by the grantee.
(2) The grantee delivered legal assistance to participants in a
timely manner.
(3) The grantee implemented the program by developing and
sustaining relationships with community partners to refer eligible
individuals in need of legal assistance.
(4) The grantee was effective in conducting outreach to eligible
individuals and increased engagement of participants seeking legal
assistance provided by the grantee.
(b) VA will award points based on the cost effectiveness of the
grantee's program, as demonstrated by the following:
(1) The cost per participant was reasonable.
(2) The grantee's program was effectively implemented within
budget.
(c) VA will award points based on the extent to which the grantee's
program complied with the Grant Program's goals and requirements, as
demonstrated by the following:
(1) The grantee's program was administered in accordance with VA's
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goals for the Grant Program as described in the NOFO.
(2) The grantee's program was administered in accordance with all
applicable laws, regulations, and guidelines.
(3) The grantee's program was administered in accordance with the
grantee's legal assistance grant agreement.
(d) The continued need of the grantee's program for financial
assistance from the legal assistance grant in order to serve eligible
individuals.
Sec. 81.50 Selection of grantees for renewal of legal assistance
grants.
VA will use the following process to select grantees applying for
renewal of legal assistance grants:
(a) So long as the grantee continues to meet the threshold
requirements set forth in Sec. 81.30, VA will score the grantee using
the scoring criteria set forth in Sec. 81.45.
(b) VA will rank those grantees who receive at least the minimum
amount of total points and points per category set forth in the NOFO.
The grantees will be ranked in order from highest to lowest scores.
(c) VA will use the grantee's ranking as the basis for selection
for funding. VA will fund the highest-ranked grantees for which funding
is available.
(d) At its discretion, VA may award any deobligated funds to an
applicant or existing grantee. If VA chooses to award deobligated funds
to an applicant or existing grantee, funds will be awarded as follows:
(1) VA may first offer to award the deobligated funds to the
applicant or grantee with the highest grant score under the relevant
NOFO that applies for, or is awarded a renewal grant in, the same
community as, or a proximate community to, the affected community. Such
applicant or grantee must have the capacity and agree to provide prompt
services to the affected community. For the purposes of this section,
the relevant NOFO is the most recently published NOFO which covers the
geographic area that includes the affected community, or for multi-year
grant awards, the NOFO for which the grantee, who is offered the
additional funds, received the multi-year award.
(2) If the first such applicant or grantee offered the deobligated
funds refuses the funds, VA may offer to award the funds to the next
highest-ranked applicant or grantee, per the criteria in paragraph
(d)(1) of this section, and continue on in rank order until the
deobligated funds are awarded.
(3) VA, at its discretion, may choose to award the deobligated
funds under other conditions, or may choose to not award the
deobligated funds at all, when VA determines appropriate based on
consideration of other relevant factors.
(e) If a grantee would have been selected but for a procedural
error committed by VA, VA may select that grantee for funding when
sufficient funds become available if there is no material change in the
information that would have resulted in the grantee's selection. A new
application will not be required for this purpose.
Sec. 81.55 General operation requirements.
(a) Eligibility documentation.
(1) Prior to providing legal assistance, grantees must verify and
document an individual's eligibility for legal assistance using the
criteria set forth in Sec. 81.15.
(2) Once the grantee initiates legal assistance, the grantee will
continue to provide legal assistance to the participant so long as the
individual continues meet the eligibility criteria set forth in Sec.
81.15.
(3) If a grantee finds that a participant is ineligible to receive
legal assistance under this part, or the grantee is unable to meet the
legal needs of that participant, the grantee must provide information
on other available programs and resources or provide a referral to
another legal services organization that is able to meet the
participant's need.
(b) Legal assistance documentation. For each participant who
receives legal assistance from the grantee, the grantee must document
the legal assistance provided, how such assistance was provided, the
duration of the assistance provided, goals for the provision of such
assistance, and measurable outcomes of the legal assistance provided as
determined by VA, such as whether the participant's legal issue was
resolved.
(c) Confidentiality. Grantees must maintain the confidentiality of
records kept in connection to legal assistance provided to
participants. Grantees that provide legal assistance must establish and
implement procedures to ensure the confidentiality of:
(1) Records pertaining to any participant, and
(2) The address or location where legal assistance is provided.
Such confidentiality must be consistent with the grantee's State bar
rules on confidentiality in an attorney-client relationship.
(d) Notifications to participants. Prior to initially providing
legal assistance to a participant, the grantee must notify each
participant of the following:
(1) The legal assistance is being paid for, in whole or in part, by
VA;
(2) The specific legal assistance available to the participant
through the grantee's program; and
(3) Any conditions or restrictions on the receipt of legal
assistance by the participant.
(e) Assessment of funds. Grantees must regularly assess how legal
assistance grant funds can be used in conjunction with other available
funds and services to ensure continuity of program operations and to
assist participants.
(f) Administration of legal assistance grants. Grantees must ensure
that legal assistance grants are administered in accordance with the
requirements of this part, the legal assistance grant agreement, and
other applicable Federal, State, and local laws and regulations.
Grantees are responsible for ensuring that any subcontractors carry out
activities in compliance with this part.
Sec. 81.60 Fee prohibition.
Grantees must not charge a fee to participants for providing legal
assistance that is funded with amounts from a legal assistance grant
under this part. Grantees may not recover fees otherwise authorized
under 38 CFR 14.636.
Sec. 81.65 Notice of Funding Opportunity (NOFO).
When funds are available for legal assistance grants, VA will
publish a NOFO on <a href="http://Grants.gov">Grants.gov</a>. The NOFO will identify:
(a) The location for obtaining legal assistance grant applications;
(b) The date, time, and place for submitting completed legal
assistance grant applications;
(c) The estimated amount and type of legal assistance grant funding
available, including the maximum grant funding available per award;
(d) The length of term for the legal assistance grant award;
(e) Specific point values to be awarded for each criterion listed
in Sec. Sec. 81.35 and 81.45;
(f) The minimum number of total points and points per category that
an applicant or grantee, as applicable, must receive for a legal
assistance grant to be funded;
(g) Any maximum uses of legal assistance grant funds for specific
legal assistance;
(h) The timeframes and manner for payments under the legal
assistance grant; and
(i) Other information necessary for the legal assistance grant
application
[[Page 80190]]
process as determined by VA, including the requirements, goals, and
objectives of the Grant Program.
Sec. 81.70 Legal assistance grant agreements.
(a) After an applicant is selected for a legal assistance grant in
accordance with Sec. 81.40, VA will draft a legal assistance grant
agreement to be executed by VA and the applicant. Upon execution of the
legal assistance grant agreement, VA will obligate legal assistance
grant funds to cover the amount of the approved legal assistance grant,
subject to the availability of funding. The legal assistance grant
agreement will provide that the grantee agrees, and will ensure that
each subcontractor agrees, to:
(1) Operate the program in accordance with the provisions of this
part and the applicant's legal assistance grant application;
(2) Comply with such other terms and conditions, including
recordkeeping and reports for program monitoring and evaluation
purposes, as VA may establish for purposes of carrying out the Grant
Program, in an effective and efficient manner; and
(3) Provide such additional information as deemed appropriate by
VA.
(b) After a grantee is selected for renewal of a legal assistance
grant in accordance with Sec. 81.50, VA will draft a legal assistance
grant agreement to be executed by VA and the grantee. Upon execution of
the legal assistance grant agreement, VA will obligate legal assistance
grant funds to cover the amount of the approved legal assistance grant,
subject to the availability of funding. The legal assistance grant
agreement will contain the same provisions described in paragraph (a)
of this section.
(c) No funds provided under this part may be used to replace
Federal, State, tribal, or local funds previously used, or designated
for use, to assist eligible individuals.
Sec. 81.75 Program or budget changes and corrective action plans.
(a) Change in legal assistance grant agreement. A grantee must
submit to VA a written request to modify a legal assistance grant for
any proposed significant change that will alter its legal assistance
program. If VA approves such change, VA will issue a written amendment
to the legal assistance grant agreement. A grantee must receive VA's
approval prior to implementing a significant change.
(1) Significant changes include, but are not limited to:
(i) A change in the grantee or any subcontractors identified in the
legal assistance grant agreement;
(ii) A change in the area or community served by the grantee;
(iii) Additions or deletions of legal assistance provided by the
grantee; and
(iv) A change in category of eligible individuals to be served; and
a change in budget line items that are more than 10 percent of the
total legal assistance grant award.
(2) VA's approval of changes is contingent upon the grantee's
amended application retaining a sufficient rank to have been
competitively selected for funding in the year that the application was
granted.
(3) Each legal assistance grant modification request must contain a
description of, and justification for, the revised proposed use of
legal assistance grant funds.
(b) Corrective action plan. VA may require that the grantee
initiate, develop, and submit to VA for approval a corrective action
plan (CAP) if, on a quarterly basis, actual legal assistance grant
expenditures vary from the amount disbursed to a grantee for that same
quarter or actual legal assistance grant activities vary from the
grantee's program description provided in the legal assistance grant
agreement.
(1) The CAP must identify the expenditure or activity source that
has caused the deviation, describe the reason(s) for the variance,
provide specific proposed corrective action(s), and provide a timetable
for accomplishment of the corrective action.
(2) After receipt of the CAP, VA will send a letter to the grantee
indicating that the CAP is approved or disapproved. If disapproved, VA
will make beneficial suggestions to improve the proposed CAP and
request resubmission or take other actions in accordance with this
part.
(c) Grantees must inform VA in writing of any key personnel changes
(e.g., new executive director, grant program director, or chief
financial officer) and grantee address changes within 30 days of the
change.
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-XXXX.)
Sec. 81.80 Faith-based organizations.
Organizations that are faith-based are eligible, on the same basis
as any other organization, to participate in the Grant Program under
this part in accordance with 38 CFR part 50.
Sec. 81.85 Visits to monitor operations and compliance.
(a) VA has the right, at all reasonable times, to make visits to
all grantee locations where a grantee is using legal assistance grant
funds in order to review grantee accomplishments and management control
systems and to provide such technical assistance as may be required. VA
may conduct inspections of all program locations and records of a
grantee at such times as are deemed necessary to determine compliance
with the provisions of this part. If a grantee delivers services in a
participant's home, or at a location away from the grantee's place of
business, VA may accompany the grantee. If the grantee's visit is to
the participant's home, VA will only accompany the grantee with the
consent of the participant. If any visit is made by VA on the premises
of the grantee or a subcontractor under the legal assistance grant, the
grantee must provide, and must require its subcontractors to provide,
all reasonable facilities and assistance for the safety and convenience
of the VA representatives in the performance of their duties. All
visits and evaluations will be performed in such a manner as will not
unduly delay services.
(b) The authority to inspect carries with it no authority over the
management or control of any applicant or grantee under this part.
Sec. 81.90 Financial management and administrative costs.
(a) Grantees must comply with applicable requirements of the
Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards under 2 CFR part 200.
(b) Grantees must use a financial management system that provides
adequate fiscal control and accounting records and meets the
requirements set forth in 2 CFR part 200.
(c) Payment up to the amount specified in the legal assistance
grant must be made only for allowable, allocable, and reasonable costs
in conducting the work under the legal assistance grant. The
determination of allowable costs must be made in accordance with the
applicable Federal cost principles set forth in 2 CFR part 200.
(d) In accordance with 2 CFR 200.414, or successor regulations,
grantees may, in regard to indirect costs:
(i) Apply the negotiated indirect cost rate established with their
Federal cognizant agency;
(ii) Apply a de minimis rate, as described in 2 CFR 200.414(f), or
[[Page 80191]]
successor regulations, if they do not have a negotiated indirect cost
rate; or
(iii) Request to negotiate an indirect cost rate with VA or their
Federal cognizant agency.
Sec. 81.95 Grantee reporting requirements.
(a) VA may require grantees to provide, in such form as may be
prescribed, such reports or answers in writing to specific questions,
surveys, or questionnaires as VA determines necessary to carry out the
Grant Program.
(b) At least once per year, or at the frequency set by VA, each
grantee must submit to VA a report containing information relating to
operational effectiveness; fiscal responsibility; legal assistance
grant agreement compliance; and legal and regulatory compliance. This
report must include a breakdown of how the grantee used the legal
assistance grant funds; the number of participants assisted;
information on each participant's gender, age, race, service era,
branch of service, component, and status of military discharge or
characterization of service; a description of the legal assistance
provided to each participant; and any other information that VA
requests.
(c) VA may request additional reports or information to allow VA to
fully assess the provision of legal assistance under this part.
(d) Grantees must relate financial data to performance data and
develop unit cost information whenever practical.
(e) All pages of the reports must cite the assigned legal
assistance grant number and be submitted in a timely manner as set
forth in the grant agreement.
(f) Grantees must provide VA with consent to post information from
reports on the internet and use such information in other ways deemed
appropriate by VA. Grantees must clearly redact information that is
confidential based on attorney-client privilege, unless that privilege
has been waived by the client.
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-XXXX.)
Sec. 81.100 Recordkeeping.
Grantees must ensure that records are maintained for at least a 3-
year period (unless a longer period is otherwise required) to document
compliance with this part. Grantees must produce such records at VA's
request.
Sec. 81.105 Technical assistance.
VA will provide technical assistance, as necessary, to applicants
and grantees to meet the requirements of this part. Such technical
assistance will be provided either directly by VA or through contracts
with appropriate public or nonprofit private entities.
Sec. 81.110 Withholding, suspension, deobligation, termination, and
recovery of funds by VA.
VA will enforce this part through such actions as may be
appropriate. Appropriate actions include withholding, suspension,
deobligation, termination, recovery of funds by VA, and actions in
accordance with 2 CFR part 200.
Sec. 81.115 Legal assistance grant closeout procedures.
Legal assistance grants will be closed out in accordance with 2 CFR
part 200.
[FR Doc. 2024-22606 Filed 10-1-24; 8:45 am]
BILLING CODE 8320-01-P
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</html>Indexed from Federal Register on October 2, 2024.
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.