Rule2024-25964
Legal Services for Homeless Veterans and Veterans At-Risk for Homelessness 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
November 13, 2024
Effective
December 13, 2024
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) adopts as final, with changes, an interim final rule (IFR) to implement a new authority requiring VA to award grants to eligible entities that will provide certain legal services for homeless veterans and veterans at risk for homelessness.
Full Text
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<title>Federal Register, Volume 89 Issue 219 (Wednesday, November 13, 2024)</title>
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[Federal Register Volume 89, Number 219 (Wednesday, November 13, 2024)]
[Rules and Regulations]
[Pages 89494-89501]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-25964]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 79
RIN 2900-AR33
Legal Services for Homeless Veterans and Veterans At-Risk for
Homelessness Grant Program
AGENCY: Department of Veterans Affairs
ACTION: Final rule
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SUMMARY: The Department of Veterans Affairs (VA) adopts as final, with
changes, an interim final rule (IFR) to implement a new authority
requiring VA to award grants to eligible entities that will provide
certain legal services for homeless veterans and veterans at risk for
homelessness.
DATES: This rule is effective December 13, 2024.
FOR FURTHER INFORMATION CONTACT: Madolyn Gingell, National Coordinator,
Legal Services for Veterans, Veterans Justice Programs, Clinical
Services, Veterans Health Administration, Department of Veterans
Affairs, 810 Vermont Ave. NW, Washington, DC 20420, (239) 223-4681.
(This is not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION: In an IFR published in the Federal Register
(FR) on June 1, 2022, (87 FR 33025), VA established, in new part 79 of
title 38, Code of Federal Regulations (CFR), the Legal Services for
Homeless Veterans and Veterans At-Risk for Homelessness Grant Program,
required by section 2022A of title 38, United States Code (U.S.C.). VA
provided a 60-day comment period, which ended on August 1, 2022. VA
received 12 comments, which are discussed in further detail below.
Based on the comments, VA is making changes to part 79, as explained in
more detail below.
Comments
Definition of Veteran
Two commenters suggested VA revise its definition of veteran in 38
CFR 79.5, which adopts the definition of veteran in 38 U.S.C. 101(2).
Section 101(2) defines veteran as a person who served in the active
military, naval, air, or space service, and who was discharged or
released therefrom under conditions other than dishonorable. These
commenters were concerned that the definition is too limited and would
exclude former servicemembers who need or would benefit from the legal
assistance provided under this grant program and who this program was
designed to serve (that is, as described by the commenters, those who
need assistance with discharge upgrades).
Instead of using the definition of veteran in 38 U.S.C. 101, one of
these commenters recommended VA use the definition of veteran in 38
U.S.C. 2002(b) (which is applicable to VA benefits for homeless
veterans) or in the alternative, use a more inclusive definition. The
definition of veteran in 38 U.S.C. 2002(b) is used for purposes of
sections 2011, 2012, 2013, 2044, 2061 of title 38, as well as 42 U.S.C.
1437f(o)(19)(D). Sections 2011, 2012, 2013, 2044, and 2061 apply to VA
benefits for homeless veterans such as the supportive services for
veteran families grant program and the homeless providers grant and per
diem program. Section 1437(o)(19)(D) of 42 U.S.C. authorizes rental
vouchers for certain eligible homeless veterans.
The definition of veteran in 38 U.S.C. 2002 defines veteran to mean
a person who served in the active military, naval, air, or space
service, regardless of length of service, and who was discharged or
released therefrom, and excludes a person who received a dishonorable
discharge from the Armed Forces; or was discharged or dismissed from
the Armed Forces by reason of the sentence of a general court-martial.
We acknowledge that the current definition of veteran in 38 CFR
79.5 limits those individuals who are eligible for legal services under
the grant program, including legal services relating to requests to
upgrade the characterization of a discharge. However, we are unable to
revise the definition as this commenter recommends (e.g., by using the
38 U.S.C. 2002(b) definition of veteran or a more inclusive
definition). Section 2022A does not define veteran. Title 38 has
already provided a definition for veteran in section 101(2). Without
indicating an alternate definition for the term in statute, Congress's
use of ``veteran'' in section 2022A can only lead VA to surmise that it
intended the legal services enumerated in section 2022A to be provided
to veterans who meet the requirements of section 101(2), as well as
other criteria for being homeless or at risk for homelessness. Thus, we
must use the definition of veteran in section 101 rather than the
definition in section 2002(b) or a more inclusive definition.
Furthermore, section 2002(b) explicitly limits its applicability to
specific sections in chapter 20 (for example, sections 2011, 2012,
2013, 2044, and 2061) and does not include section 2022A. Given that
Congress remained silent on the subject, ``veteran'' in section 2022A
must be read as using the available definition in section 101(2). Short
of future statutory change, the definition of veteran in 38 U.S.C.
2002(b) does not apply to this grant program authorized by 2022A.
We make no changes to the definition of veteran based on this
comment.
The other commenter recommended that VA define veteran in the same
way as the U.S. Interagency Council on Homelessness, which defines
veteran as all individuals who served in the military regardless of the
length of service or their discharge status.
In defining veteran, section 101(2) refers to a person who was
discharged or released therefrom under conditions other than
dishonorable. This excludes
[[Page 89495]]
those who received a dishonorable discharge from the Armed Forces or
who have been found by VA to have been discharged under dishonorable
conditions. Thus, those individuals would be ineligible to receive
services provided through this legal services grant program since we
are applying the definition of veteran under section 101(2). Since we
must use that definition for purposes of this grant program for the
reasons previously explained, we are unable to remove the restrictions
on discharge status in the section 101(2) definition.
We are also unable to remove the length of service requirements as
those set forth in 38 U.S.C. 5303A apply to this grant program. These
requirements apply to the administration of VA benefits and services
unless otherwise explicitly made inapplicable. See 38 U.S.C. 5303A(a)
(``Notwithstanding any other provision of law, any requirements for
eligibility for or entitlement to any benefit under this title or any
other law administered by the Secretary that are based on the length of
active duty served by a person who initially enters such service after
September 7, 1980, shall be exclusively as prescribed in this title.'')
and 5303A(b)(3). Section 2022A is not excluded from the length of
service requirements in section 5303A(b)(3). Moreover, section 2022A
did not explicitly exclude eligible veterans from these length of
service requirements. Thus, section 2022A must be read as requiring the
length of service requirements described in 38 U.S.C. 5303A. We make no
changes to the definition of veteran based on this comment.
Eligible Veterans and 38 CFR 79.55
One commenter stated that grantees should be tasked with
establishing their own criteria for eligibility and the methods used to
confirm and document eligibility under Sec. 79.15. This commenter
opined that grantees should establish their own criteria for
determining eligibility and should only have to determine it at the
time the veteran engages with them, particularly because requiring
grantees to recertify eligibility after intake may cause ethical issues
for the grantee and result in frustration, hardship, and damages to the
veteran being served by that grantee. This same commenter also
suggested that if the veteran is eligible at the time of intake, the
legal services should continue until the legal issue is completed.
VA requires grantees verify and document a veteran's eligibility
for legal services prior to providing legal services. See Sec.
79.55(a)(1). VA also requires that services continue to be provided
through completion of the legal services so long as the participant
continues to be eligible and if, at any point, the grantee finds the
participant is ineligible, they must document such ineligibility and
provide the individual with information on other available programs/
resources or provide a referral. See Sec. 79.55(a)(2) and (3). Because
the statutory authority, 38 U.S.C. 2022A, is clear about eligibility
for legal services, as further set forth in 38 CFR 79.15, VA does not
believe it would be appropriate for grantees to establish their own
eligibility criteria, which could vary and lack consistency among
grantees. This could lead to grantees providing services to veterans
who are not actually eligible pursuant to VA's authority and therefore
would place an undue burden on VA to conduct an independent
determination of each grantee's eligibility criteria to ensure it is
consistent and does not exceed the bounds of VA's authority. In
addition, this could lead to disparate treatment of veterans as
grantees could otherwise set more restrictive or broad criteria than
others. In such instances, eligibility for legal services would depend
on the organization from which veterans sought services. To ensure
compliance with the law and that veterans are treated the same for
purposes of eligibility for legal services provided under this grant
program, VA believes it is appropriate to have the same eligibility
criteria for all veterans rather than have grantees establish their
own.
For these same reasons, VA will provide grantees with various
methods that can be used to determine eligibility. Such information
will be included in a program guide that will be provided to grantees.
The program guide is the appropriate location for such information
rather than regulation since the methods that may be used to determine
eligibility are subject to change.
While we expect grantees to determine eligibility based on the
criteria in Sec. 79.15 prior to the provision of legal services, we do
not expect grantees to verify or confirm eligibility on a frequent, on-
going basis. However, if a grantee becomes aware that an individual was
never eligible due to, for example, a military discharge as a result of
general court-martial, but by mistake was initially determined
eligible, we expect the grantee to take appropriate action by ending
services and making appropriate referrals to other organizations that
are able to assist the individual with legal services, in compliance
with Sec. 79.55(a)(3). It was and is not our intent to have grantees
take similar actions if an individual is initially found to be eligible
for services but due to improvement in their housing situation, they
may no longer be eligible under Sec. 79.15(a)(1). Because these
individuals may continue to be at risk for homelessness under Sec.
79.15(a)(2), we want grantees to continue to provide legal services to
these individuals. For all participants, we expect legal services to
continue to be provided through completion or as the need for such
services comes to an end, so long as the individuals remain eligible
for such services. See Sec. 79.55(a)(2).
We do not make changes to the regulations based on these comments.
However, this information will be included in the grant program guide
and as part of technical assistance.
Two commenters raised concerns about the definition of at risk for
homelessness included in Sec. 79.15. The definition of at risk for
homelessness means an individual who does not have sufficient resources
or support networks, e.g., family, friends, faith-based or other social
networks, immediately available to prevent them from moving to an
emergency shelter or another place described in paragraph (1) of the
definition of ``homeless'' in 24 CFR 576.2 and meets one or more of
nine conditions set forth in 38 CFR 79.15(b)(1) through (9).
It was suggested by both commenters that VA remove the requirement
in Sec. 79.15(b)(3) that the veteran be notified in writing that their
right to occupy their current housing or living situation will be
terminated within 21 days after the application for assistance or add a
period longer than 21 days. The commenter stated that this requirement
causes undue confusion, added burden on staff, and that housing
statutes and requirements often require landlords provide more than 21
days' notice.
As an initial matter, the language in Sec. 79.15(b)(3) is not a
requirement that all veterans must meet to be determined at risk for
homelessness. Instead, it is one of nine conditions, of which a veteran
must meet only one. Thus, a veteran can meet the definition of at risk
for homelessness if they meet one of those other eight conditions. We
believe that if a veteran did not meet Sec. 79.15(b)(3) because they
live in a place where more than 21 days' notice is required to
terminate their right to occupy their current housing or living
situation and they find themselves in such situation, they may very
likely meet one of the other eight conditions. As we have largely
adopted the definition of at risk
[[Page 89496]]
for homelessness from the Department of Housing and Urban Development's
(HUD) definition of at risk for homelessness, including this specific
requirement in Sec. 79.15(b)(3), we make no changes based on this
comment as we defer to HUD's definition given they are the leading
Federal agency on this subject matter. We acknowledge one difference in
that 24 CFR 576.2 does include an income limitation. We chose to remove
that limitation in 38 CFR 79.15(b) due to situations where a veteran
earns an income beyond the limitation in 24 CFR 576.2(i) but is still
unable to maintain housing because of a high cost of living where they
reside. See 87 FR 33028. We still note that this definition is
consistent with other VA grant programs that provide services to
veterans at risk for homelessness. Thus, to be consistent with both HUD
and VA's existing grant programs, we make no changes based on this
comment. However, if we find that this criterion is a barrier for
eligibility for services under this grant program, we will consider
revising the criterion and make any such revisions in a future
rulemaking.
One of the commenters raised concerns about 38 CFR 79.15(b)(5)
which excludes veterans residing in hotels or motels paid for by non-
profit organizations and government entities based on low income. This
language in paragraph (b)(5) is consistent with HUD and VA's other
grant programs focused on veterans at risk for homelessness.
Additionally, the definition of at risk for homelessness provides nine
separate ways to meet the definition, which is fairly broad. However,
similar to the discussion on paragraph (b)(3) above, if we find that
this criterion is a barrier for eligibility for services under this
grant program, we will consider revising the criterion and make any
such revisions in a future rulemaking.
One commenter stated that it should be sufficient for veterans to
only meet one of the criteria in Sec. 79.15(b)(1) through (9), rather
than also having to meet the requirement in Sec. 79.15(b) that an
individual does not have sufficient resources or support networks (for
example, family, friends, faith-based or other social networks)
immediately available to prevent them from moving to an emergency
shelter or another place described in paragraph (1) of the definition
of ``homeless'' in 24 CFR 576.2. This commenter suggested removing the
latter criterion based on the assertion that it is subjective, hard to
apply, and requires assessment of a veteran's resources. They also
stated that it is irrelevant to a veteran's ability to access legal
services or their need for legal help, as availability of resources
does not mean they will have support.
As discussed above, this language was included to be consistent
with HUD and VA's other grant programs focused on veterans at risk for
homelessness. We acknowledge that this criterion is subjective, which
is beneficial to veterans as it allows grantees to look at the totality
of a veteran's circumstances. However, we disagree that this criterion
is hard to apply and requires assessment of a veteran's resources.
Instead, this criterion requires a screening, rather than an in-depth
analysis or assessment of the veteran's resources and finances. To
assist in determining whether a veteran is at risk for homelessness for
purposes of this grant program, we will make available to grantees a
short screening tool. This tool will be similar to tools that have been
utilized effectively by other VA homeless programs, but it will be
modified for purposes of the definition of at risk for homelessness in
part 79. As this criterion is consistently used and applied in other VA
and HUD programs, we do not believe it is or should be hard to apply,
especially as an in-depth analysis is not required and the
determination on whether this criterion is met is a judgment call made
by the grantee.
We acknowledge and agree with the commenter that potential
availability of resources to a veteran does not equate to support.
However, we note that the requirement is only for the veteran to lack
either ``sufficient resources or support networks'' to actually prevent
homelessness or moving to an emergency shelter; the veteran need not
lack both of those things. Even if a veteran's family member may have
resources or support, this criterion would not necessarily presume that
the veteran has the ability to access such resources or support. To
continue to be consistent with HUD and VA's other programs, we do not
make changes to this definition based on this comment.
Another commenter recommended that services provided under this
grant program be available to deported veterans with no income
limitations, as they noted there are veterans and servicemembers who
are not citizens, are at risk for homelessness, and may be deported.
As an initial matter, we do not impose any income limitations to be
eligible for legal services provided under this grant program. As
described in Sec. 79.15, an individual is eligible for services under
part 79 if they are a homeless veteran (defined consistent with 42
U.S.C. 11302) or a veteran at risk for homelessness (defined consistent
with 24 CFR 576.2). Section 11302 of 42 U.S.C. does not include any
income limitations in its definition of homeless. As noted above, while
24 CFR 576.2 does include an income limitation, we removed that
limitation in 38 CFR 79.15(b) because VA recognized that there may be
situations where a veteran earns an income beyond the limitation in 24
CFR 576.2(i) but is still unable to maintain housing because of a high
cost of living where they reside. See 87 FR 33028. Because part 79 does
not include any income limitations for purposes of eligibility for
legal services, we do not make any changes based on this part of the
comment.
As written, part 79 does not prohibit grantees from providing legal
services, including immigration-specific legal services, to deported
veterans or those veterans without U.S. citizenship who live in the
United States who meet the eligibility criteria in Sec. 79.15. Part 79
also does not require grantees to provide immigration-specific legal
services, to deported veterans or those veterans without U.S.
citizenship who meet the eligibility criteria in Sec. 79.15. We
understand that relatively few potential grantees may have the capacity
and experience to serve such individuals effectively in those
circumstances. However, if a grantee is able to do so effectively and
in a way that meets all other requirements imposed by this grant
program, they would be permitted to do so. Thus, because the provision
of legal services, including immigration-specific legal services, to
deported veterans or those veterans without U.S. citizenship meeting
the eligibility criteria in Sec. 79.15 would be at the discretion of
the grantee, we would not regulate this and do not make any changes to
part 79 based on this comment.
Eligible Entities
One commenter inquired about whether two non-profits can partner
for this grant program. We assume this commenter is inquiring as to
whether two organizations can submit a joint grant application for this
grant program. Consistent with how VA administers other grant programs,
two organizations will not be able to submit a joint application for a
legal services grant. However, an organization that is an eligible
entity, as defined in part 79, and is awarded a grant may be the
primary grantee and may work directly with a subcontractor to
administer the grant. As part of the application process, grantees are
expected to identify any subcontractors in their application. See 38
CFR 79.25(a)(7). While we do not allow a joint application for two
[[Page 89497]]
primary grantees, we do not find it necessary to update the regulations
in part 79 to clarify this point, especially as we have not done so in
any of our other grant program regulations. This clarification will be
further provided through technical assistance and in Frequently Asked
Questions.
Legal Services
One commenter recommended VA remove the word ``defense'' from
criminal defense in the list of allowable legal services contained in
Sec. 79.20. This commenter stated that use of defense may be
misleading to non-criminal legal problems that provide legal services
to address the removal of barriers to homelessness associated with
interacting with the criminal justice system.
The authorizing statute, 38 U.S.C. 2022A(d)(4), includes certain
criminal defense legal services as part of this grant program.
Consistent with section 2022A(d)(4), 38 CFR 79.20(d) states that legal
services include those relating to criminal defense, including defense
in matters symptomatic of homelessness, such as outstanding warrants,
fines, driver's license revocation, and citations. To reduce recidivism
and facilitate the overcoming of reentry obstacles in employment or
housing, covered legal services relating to criminal defense also
include legal assistance with requests to expunge or seal a criminal
record.
We are unclear what the commenter is referring to with regards to
non-criminal legal problems that provide legal services to address the
removal of barriers to homelessness associated with interacting with
the criminal justice system. We included in our definition of legal
services defense in matters symptomatic of homelessness, such as
outstanding warrants, fines, driver's license revocation, and
citations. We believe this covers those instances in which a veteran
may be interacting with the criminal justice system but are considered
non-criminal legal problems. However, based on this comment, we revise
this language to include the word ``assistance'' to better clarify that
these legal services are not restricted to only defense. We believe
that this change is a logical outgrowth of the IFR and does not warrant
an additional comment period because the change is directly related to
a concern presented by a commenter and is otherwise within the scope of
the IFR.
We would not remove ``defense'' as suggested by the commenter since
that would be inconsistent with our statutory authority for this
program. Because we are making additional changes to Sec. 79.20(d) as
subsequently explained, all of the revisions to Sec. 79.20(d),
including the word ``assistance'', are described in one consolidated
revision further below.
This same commenter also recommended VA clarify that criminal
defense includes the resolution of criminal matters symptomatic of
homelessness either at any time during a criminal proceeding or post-
adjudication and sentencing.
We understand the commenter's concern and note that Sec. 79.20(d)
includes defense in matters symptomatic of homelessness, such as
outstanding warrants, fines, and driver's license revocation, to reduce
recidivism and facilitate the overcoming of reentry obstacles in
employment or housing. However, similar to the changes discussed
directly above, based on this comment, we revise Sec. 79.20(d) to
indicate that resolution of matters symptomatic of homelessness is
included as part of the legal services that may be provided under this
grant program. We believe revising the language to include resolution
is appropriate, would better clarify that these legal services are not
restricted to only defense, and would cover resolution of criminal
matters symptomatic of homelessness either at any time during a
criminal proceeding or post-adjudication and sentencing. We believe
that this change is a logical outgrowth of the IFR and does not warrant
an additional comment period because the change is directly related to
a concern presented by a commenter and is otherwise within the scope of
the IFR.
Because Sec. 79.20(d) places no limits on when in criminal
proceedings legal assistance may be provided, we decline to add
language to clarify that legal services under paragraph (d) may be
provided at any time during a criminal proceeding or post-adjudication
and sentencing.
Based on the previously described changes to Sec. 79.20(d) to
include the word ``assistance'' and those described in a preceding
paragraph, Sec. 79.20(d) is revised to state the following: Legal
services relating to criminal defense, including defense and resolution
of, and assistance with, matters symptomatic of homelessness, such as
outstanding warrants, fines, driver's license revocation, and
citations. To reduce recidivism and facilitate the overcoming of
reentry obstacles in employment or housing, covered legal services
relating to criminal defense also include legal assistance with
requests to expunge or seal a criminal record.
We make no further changes based on these comments.
Another commenter suggested VA expand the discharge upgrade legal
services under Sec. 79.20 to include those under 10 U.S.C. 1552. This
commenter opined that limiting grantees to only serve those seeking
discharges under 10 U.S.C. 1553 seems arbitrary, unfairly favors
recent-era veterans, especially as it would require grantees to turn
away clients who separated over 15 years ago and would limit a
grantee's ability to help appeal wrongful denials.
As an initial matter, we note that the authorizing statute for this
grant program includes as legal services those relating to requests to
upgrade the characterization of a discharge or dismissal of a former
member of the Armed Forces under 10 U.S.C. 1553. Such requests are
reviewed by a Discharge Review Board (DRB). Only former members of the
Armed Services who were discharged or dismissed within the prior 15
years and are appealing their discharge or dismissal (other than one
given by sentence of a General Court Martial) are eligible to submit
their request for an upgrade to a DRB. All other requests for
corrections of military records or for an upgrade to the
characterization of a discharge or dismissal of a former member of the
Armed Forces who was discharged or dismissed more than 15 years prior
may be reviewed and corrected pursuant to 10 U.S.C. 1552. Section 1552
allows former members of the Armed Forces to apply to the Board for
Correction of Military Records (BCMR) for a correction of the former
member's military record when it is considered necessary to correct an
error or remove an injustice. BCMRs can upgrade any character of
discharge or dismissal; change any reason for discharge or dismissal,
re-enlistment codes, the date of discharge or dismissal; remove
mistakes in a former member's record; and add or remove a note of
medical retirement.
While Congress did not explicitly include 10 U.S.C. 1552 in the
list of legal services authorized under 38 U.S.C. 2022A, based on the
comment above, we believe it is appropriate to include as legal
services those relating to requests to correct the military record of a
former member of the Armed Forces under 10 U.S.C. 1552. We have the
authority to do so pursuant to our discretionary authority in 38 U.S.C.
2022A(d)(6), which explains that grants under this section shall be
used to provide homeless veterans and veterans at risk for homelessness
such other legal services as the Secretary determines appropriate. We
use that authority to
[[Page 89498]]
add new paragraph (f)(6) to Sec. 79.20 to include legal services
relating to requests for corrections to military records of a former
member of the Armed Forces under 10 U.S.C. 1552. We believe this is an
appropriate legal service to add under this grant program due to the
language in 38 U.S.C. 1553 that limits requests for upgrades to those
who have been discharged or dismissed within the prior 15 years. We
believe it is appropriate to add legal assistance with section 1552
requests so that those former members who were discharged or dismissed
more than 15 years prior are able to receive legal assistance with
their correction of military records or requests for upgrades, similar
to those who were discharged or dismissed within the prior 15 years.
This would allow grantees to assist eligible veterans with requests
submitted to DRBs and BCMRs.
We believe that this change is a logical outgrowth of the IFR and
does not warrant an additional comment period because the change is
directly related to a concern presented by a commenter and is otherwise
within the scope of the IFR. Further, the IFR provided, in 38 CFR
79.20, that covered legal services would include ``[o]ther covered
legal services as determined appropriate by the Secretary,'' and this
change merely reflects the exercise of that authority expressly stated
in the IFR.
We would not limit assistance with 10 U.S.C. 1552 requests to only
requests for upgrades since the statute is broader than requests for
upgrades. Former members of the Armed Forces, regardless of when they
were discharged or dismissed, are able to request corrections to other
military records under section 1552, and we would allow grantees to use
funds to provide assistance with such requests. We make no further
changes based on this comment.
Applications (38 CFR 79.25) and Scoring Criteria (38 CFR 79.35)
Another commenter asked what documentation is needed as proof of
previous services rendered. We assume this commenter is referring to
the language in the sections of part 79 concerning applications for
legal services grants (Sec. 79.25) and scoring criteria for legal
services grant applicants (Sec. 79.35). Section 79.25(a)(6) explains
that a complete legal services grant application package includes
documentation describing the experience of the applicant and any
identified subcontractors in providing legal services to eligible
veterans. Section 79.35(a)(2)(ii) explains that as part of scoring
applications, VA will use criteria including whether the applicant, and
any identified subcontractors, have experience providing legal
services, including providing such services to veterans, or individuals
who are homeless, at risk for homelessness or who have very low income.
As part of the application process, we do not require specific
documentation to be provided regarding prior experience. However, as
part of the application, applicants can provide information and
documents to support their prior experience, which we will review when
scoring applications. For example, in the application form, we included
a section in which applicants can explain their prior experience.
Additionally, we will review such documents as memoranda of
understanding, memoranda of agreement, staff resumes, position
descriptions, and any other documents the applicant submits as part of
their application.
Since we do not require any specific documentation to support an
applicant's prior experience, we do not revise these regulations.
General Operation Requirements
Another commenter recommended VA eliminate the requirement in Sec.
79.55(d)(1) that grantees disclose VA as a funding source, as it could
cause confusion and create a barrier to legal services. While we
understand the commenter's concerns, this is standard practice for our
grant programs (and statutorily required for some of our grant
programs), and we believe that disclosing this is important information
that eligible veterans should be aware of, particularly as this can
positively impact their relationship and interactions with VA. Thus, we
do not make any changes based on this comment.
Other Comments
One commenter recommended that the NOFO state that a pass-through
entity is an eligible entity. This same commenter also recommended VA
have a central prime awardee and suggested VA provide a higher cap
(more than $150k) on the amount of funds that can be awarded to those
entities applying as pass-through entities.
While the comment concerns the NOFO, and thus is considered outside
the scope of this rulemaking, we note that the NOFO will address
whether applicants can operate as a pass-through entity if awarded a
grant under this grant program. We are not awarding grants to
organizations that would operate as a central prime awardee because we
do not believe it would be appropriate for a single agency to
administer this grant program on behalf of VA. While the commenter
references a cap of $150,000, we did not set forth in regulation any
cap on the amount of funds we will award grantees. Instead, we stated
that this information on estimated amounts of legal services grant
funding available, including the maximum grant funding available per
award, would be included in the NOFO. See 38 CFR 79.65(c). As there is
no such cap in the regulations, particularly as the funds available and
awarded can vary annually, we make no changes based on this comment.
Lastly, this commenter also recommended that funds under this
program be allowed to cover attorney training and professional
development and that this be clarified in the NOFO.
While we make no changes to the regulation based on this comment,
we would allow grantees to use legal funds for attorney training and
professional development. However, those costs must be covered under
the administrative costs. We will provide further guidance on such
allowable administrative costs, including attorney training and
professional development, in the program guidance and through technical
assistance.
One commenter expressed their support for the rule but suggested
that VA require its employees to provide information on this grant
program if domestic violence is disclosed to them. This comment is
outside the scope of this rulemaking, and such a requirement would be
more appropriate for internal VA policy. We will work with VA's
Intimate Partner Violence Assistance Program to ensure they have
information on this program that can be shared with veterans if
domestic violence is disclosed to VA employees. We make no changes to
part 79 based on this comment.
Two commenters, who identified as veterans, separately expressed
their need for assistance as they were at risk for homelessness. While
we consider these comments outside the scope of the rulemaking, to the
extent these commenters provided contact information, VA did reach out
to them. We further encourage these veterans and others who may be in
similar situations to contact their nearest VA facility for further
assistance in addressing their needs. We also refer such veterans to
VA's website for additional information on VA's homeless programs. See
<a href="https://www.va.gov/homeless">https://www.va.gov/homeless</a>. We do not make any changes to part 79
based on these comments.
[[Page 89499]]
Changes to 38 CFR Part 79 Not Based on Comments
VA makes several changes not based on comments. These do not create
any burdens or restrictions on grantees under this grant program and
address issues VA has identified with implementation. Several of these
changes remove requirements and limitations that would restrict
grantees and their ability to effectively provide legal services under
this grant program. These changes are a logical outgrowth from the IFR,
and even if they are not, given their nature, advance notice and the
opportunity to comment is unnecessary under the terms of 5 U.S.C.
553(b)(B).
Changes to Sec. 79.10(c)
Pursuant to 38 U.S.C. 2022A(c), VA established in 38 CFR 79.10 the
criteria for an entity to be considered an eligible entity under part
79. One such entity that is eligible for a grant under part 79 is a
non-profit private entity. However, Congress did not define this term
in 38 U.S.C. 2022A. Thus, as explained in the IFR, VA defined non-
profit private entity to mean an entity that meets the requirements of
26 U.S.C. 501(c)(3) or (19). 87 FR 33028. These are designations used
by the Internal Revenue Service for purposes of tax exemptions and
include such entities as corporations; foundations; and certain posts
and organizations of members of the Armed Forces; in which no part of
the net earnings inure to the benefit of any private shareholder or
individual. Id.
When we promulgated the IFR, we believed that non-profit private
entities, such as bar associations, that specialize in providing legal
services to veterans who are homeless or at risk for homelessness,
including Native veterans, women veterans, and those who live in rural
areas, would meet the requirements of 38 CFR 79.10(c). However, since
implementing part 79, we have found that such entities may not be
eligible to apply for, or receive, a grant because they do not meet the
criteria of a non-profit private entity, as defined in 38 CFR 79.10(c),
nor do they meet any other criteria to be considered an eligible entity
under Sec. 79.10. Instead, such entities may meet the requirements of
26 U.S.C. 501(c)(6), which refers to 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), not organized for profit and no part of the net earnings of
which inures to the benefit of any private shareholder or individual.
To ensure that such entities are eligible to apply for, and
receive, a grant under part 79, we revise 38 CFR 79.10(c) to include
non-profit private entities that meet the requirements of 26 U.S.C.
501(c)(6). While we did not receive any comments on this issue, we
consider this change to be removing a restriction in its regulation
that excludes other non-profit private entities that commonly provide
legal services from applying for, and receiving, a grant. These
entities such as bar associations are important to the implementation
of this grant program, as they would likely have the capacity to
effectively administer a grant under part 79 and often provide legal
services to those who may not otherwise have access to such services,
such as those who are homeless or at risk for homelessness. We believe
this revision to 38 CFR 79.10(c) thus aligns with the intent of the 38
U.S.C. 2022A(a) and (c), as VA is required to award grants to eligible
entities that provide legal services to homeless veterans and veterans
at risk for homeless, and VA may only award grants if the applicant is
a public or nonprofit private entity with the capacity (as determined
by the Secretary) to effectively administer a grant under section 2022A
(emphasis added).
Changes to Sec. Sec. 79.25, 79.75, and 79.95
Sections 79.75 and 79.95 include information collections subject to
the Paperwork Reduction Act (PRA). When the IFR published, these
information collections had not yet been approved by the Office of
Management and Budget (OMB). In Sec. Sec. 79.75 and 79.95, we thus
included language noting that OMB had approved the information
collection provisions in these sections but did not identify specific
control numbers. However, these information collections have been
approved and designated with control numbers. Thus, in this final rule,
we revise the language in Sec. Sec. 79.75 and 79.95 to state that OMB
has approved the information collection provisions in this section
under control number 2900-0905.
Additionally, we are amending Sec. 79.25 to state that OMB has
approved the information collection provisions in this section under
control number 2900-0905. We inadvertently left this sentence out of
the section when we published the IFR. As Sec. 79.25 addresses
applications, which are subject to PRA, we now add this language to
reflect the approved collection.
Changes to Sec. 79.80
Section 79.80 explains that faith-based organizations are eligible
to participate in the Legal Services for Homeless Veterans and Veterans
At-Risk for Homelessness Grant Program and describes the conditions for
use of these grants as they relate to religious activities. Subsequent
to the publication of the interim final rule establishing part 79, VA
finalized regulations updating 38 CFR part 50. See 89 FR 15671 (March
4, 2024). Part 50 also 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. Because all VA grant programs, including
the grant program in part 79, are subject to part 50, we revise 38 CFR
79.80 to refer to part 50 rather than restate the provisions of part
50. Thus, in the event that part 50 is further amended, we would not
need to amend part 79.
We do not regard notice and comment on this change as necessary
because the public was already given notice and an opportunity to
comment as part of the rulemaking to amend part 50.
Relatedly, we also remove in 38 CFR 79.5 the terms ``Direct Federal
financial assistance'' and ``Indirect Federal financial assistance''
and their definitions, as such terms and definitions were only included
in Sec. 79.5 to define the use of these terms in Sec. 79.80. Since we
are revising Sec. 79.80 to reference 38 CFR part 50, as explained
above, and current part 50 includes definitions for these terms, we
remove these terms and their definitions from 38 CFR 79.5 as they will
no longer be used in part 79.
Changes to 38 CFR 79.90
Section 79.90 describes financial management and administrative
costs related to this grant program. Paragraph (d) limits the
administrative costs to no more than 10 percent of the total amount of
the legal services grant. This 10 percent cap aligned with other VA
grant programs such as the Supportive Services for Veteran Families
program (see 38 CFR 62.10), as well as 2 CFR 200.414(f), which sets the
de minimis rate for indirect costs (also commonly referred to as
administrative costs) for non-Federal entities that receive Federal
financial assistance. Effective October 1, 2024, the rate in Sec.
200.414(f) will increase from 10 percent to 15 percent. See 89 FR 30046
(April 22, 2024).
[[Page 89500]]
Additionally, 2 CFR 200.414(c) requires that negotiated rates for
indirect costs between one Federal awarding agency and a grantee must
be accepted by all Federal awarding agencies unless a different rate is
required by statute or regulation. Thus, in instances when a legal
services grantee has negotiated with another Federal awarding agency a
rate other than the de minimis rate set forth in Sec. 200.414(f), VA
could accept that rate pursuant to Sec. 200.414(f). However, as VA
established the 10 percent rate in current 38 CFR 79.90(d), VA is
unable to accept any negotiated rates a grantee may have with another
Federal awarding agency. This could limit the number of organizations
to which VA could provide funds under this instant grant program, as
some organizations, including those who have current and/or past
experience providing the services authorized under this grant program,
may choose not to apply for a grant under part 79.
Thus, VA is revising Sec. 79.90(d) to state ``Costs for
administration by a grantee will be consistent with 2 CFR part 200.''
This will provide VA flexibility to quickly implement the 15 percent as
the de minimis rate for indirect costs, and any subsequent changes to
that rate, in Sec. 200.414(f) without first having to conduct
rulemaking to change 38 CFR part 79. VA would not reference the
specific section of 2 CFR part 200 as that is subject to change.
This will also allow VA to utilize negotiated rates pursuant to
Sec. 200.414(f), as applicable, which will align VA with other Federal
agencies who provide funds to organizations for the similar type of
services that are authorized under this instant grant program, as VA
will be able to apply the negotiated rate pursuant to 2 CFR 200.414(c),
when applicable. This revision will also align the instant grant
program with similar changes VA is making to other grant programs, such
as the Sergeant Parker Gordon Fox Suicide Prevention Grant program. See
for example, 38 CFR 78.140(d).
This change is within VA's discretion under 38 U.S.C. 2022A(b),
which requires VA to establish criteria and requirements for grants
under [such] section. Section 2022A does not place limits on the
percentage of the grants funds that may be used for administrative
costs. VA makes no further changes to 38 CFR 79.90.
Administrative Procedure Act
VA has considered all relevant input and information contained in
the comments submitted in response to the IFR (87 FR 33025) and, for
the reasons set forth in the foregoing responses to those comments, has
concluded that changes to the IFR are warranted based on those
comments. VA is also making changes to the regulation, as explained
above, that do not require notice and comment before implementation.
These changes are a logical outgrowth from the IFR, and even if they
are not, they relieve limitations and requirements previously
established through the IFR, and advance notice and opportunity to
comment is unnecessary under the terms of 5 U.S.C. 553(b)(B) because
the amendments generally align with the statutory authority and do not
create any burdens or restrictions on grantees under this program.
Changes to 38 CFR 79.80 were already effectively subject to notice and
comment as well through the rulemaking to amend part 50, as discussed
above. Accordingly, based upon the authorities and reasons set forth in
issuing the IFR (87 FR 33025), as supplemented by the additional
reasons provided in this document in response to comments received and
based on the rationale set forth in this rule, VA is adopting the
provisions of the IFR as a final rule with changes.
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 final rule will 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). This final rule will only impact those entities that choose to
participate in the Legal Services for Homeless Veterans and Veterans
At-Risk for Homelessness Grant Program. Small entity applicants will
not be affected to a greater extent than large entity applicants. Small
entities must elect to participate. To the extent this final rule would
have any impact on small entities, it would not have an impact on a
substantial number of small entities. 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 final rule will have no such effect on
State, local, and Tribal governments, or on the private sector.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507) requires that
VA consider the impact of paperwork and other information collection
burdens imposed on the public. Except for emergency approvals under 44
U.S.C. 3507(j), 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. The interim final rule included
provisions constituting new collections of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that required
approval by OMB (the provisions in the interim final rule are 38 CFR
79.25, 79.75, and 79.95). Accordingly, under 44 U.S.C. 3507(d), VA
submitted a copy of the IFR to OMB for review, and VA requested that
OMB approve the collections of information on an emergency basis. VA
did not receive any comments on the collections of information
contained in the interim final rule. OMB approved the collections of
information under control number 2900-0905.
[[Page 89501]]
Assistance Listing
The Assistance Listing numbers and titles for the programs affected
by this document are 64.056.
Congressional Review Act
Pursuant to Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C.
801 et seq.), the Office of Information and Regulatory Affairs
designated this rule as not satisfying the criteria under 5 U.S.C.
804(2).
List of Subjects in 38 CFR Part 79
Administrative practice and procedure; Grant programs-social
services; Grant programs-veterans; Homeless; Legal services; Public
assistance programs; Reporting and recordkeeping requirements;
Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved and signed
this document on October 31, 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 interim rule amending
38 CFR chapter 1, which was published at 87 FR 33025 (June 1, 2022), is
adopted as final with the following changes:
PART 79--LEGAL SERVICES FOR HOMELESS VETERANS AND VETERANS AT-RISK
FOR HOMELESSNESS GRANT PROGRAM
0
1. The general authority citation for part 79 continues to read as
follows:
Authority: 38 U.S.C. 501, 38 U.S.C. 2022A, and as noted in
specific sections.
Sec. 79.5 [Amended]
0
2. Amend Sec. 79.5 by removing the definitions of ``Direct Federal
financial assistance'' and ``Indirect Federal financial assistance''.
Sec. 79.10 [Amended]
0
3. Amend Sec. 79.10 in paragraph (c) by removing ``26 U.S.C. 501(c)(3)
or (19)'' and adding in its place ``26 U.S.C. 501(c)(3), (6), or
(19)''.
0
4. Amend Sec. 79.20 by revising paragraph (d) and adding paragraph
(f)(6) to read as follows:
Sec. 79.20 Legal services.
* * * * *
(d) Legal services relating to criminal defense, including defense
and resolution of, and assistance with, matters symptomatic of
homelessness, such as outstanding warrants, fines, driver's license
revocation, and citations. To reduce recidivism and facilitate the
overcoming of reentry obstacles in employment or housing, covered legal
services relating to criminal defense also include legal assistance
with requests to expunge or seal a criminal record.
* * * * *
(f) * * *
(6) Legal services relating to requests for corrections to military
records of a former member of the Armed Forces under 10 U.S.C. 1552.
0
5. Amend Sec. 79.25 by adding an information collection authority to
the end of the section to read as follows:
Sec. 79.25 Application for legal services grants.
* * * * *
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-
0905)
Sec. 79.75 [Amended]
0
6. Amend Sec. 79.75 in the information collection authority at the end
of the section by removing ``2900-TBD'' and adding in its place ``2900-
0905''.
0
7. Revise Sec. 79.80 to read as follows:
Sec. 79.80 Faith-based organizations.
Organizations that are faith-based are eligible, on the same basis
as any other organization, to participate in the Legal Services for
Homeless Veterans and Veterans At-Risk for Homelessness Grant Program
under this part in accordance with 38 CFR part 50.
0
8. Amend Sec. 79.90 by revising the first sentence of paragraph (d) to
read as follows:
Sec. 79.90 Financial management and administrative costs.
* * * * *
(d) Costs for administration by a grantee will be consistent with 2
CFR part 200. * * *
Sec. 79.95 [Amended]
0
9. Amend Sec. 79.95 in the information collection authority at the end
of the section by removing ``2900-TBD'' and adding in its place ``2900-
0905''.
[FR Doc. 2024-25964 Filed 11-12-24; 8:45 am]
BILLING CODE 8320-01-P
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</html>Indexed from Federal Register on November 13, 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.