Vocational Rehabilitation and Employment Program-Periods of Eligibility, 3165-3168 [2010-879]
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Federal Register / Vol. 75, No. 12 / Wednesday, January 20, 2010 / Rules and Regulations
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than 20 percent under 38 U.S.C. chapter
11.
(2) Incurred or aggravated the
disability or disabilities in active
military, naval, or air service on or after
September 16, 1940.
(3) Is determined by VA to be in need
of rehabilitation because of a serious
employment handicap.
(c) Servicemembers awaiting
discharge. The individual is a
servicemember who, while waiting for
discharge from the active military,
naval, or air service, is hospitalized, or
receiving outpatient medical care,
services, or treatment, for a disability
that VA will likely determine to be
service-connected. In addition, VA must
have determined that:
(1) The hospital or other medical
facility providing the hospitalization,
care, service, or treatment is doing so
under contract or agreement with the
Secretary concerned, or is under the
jurisdiction of the Secretary of Veterans
Affairs or the Secretary concerned;
(2) The individual is in need of
rehabilitation because of an
employment handicap; and
(3) The individual has a disability or
combination or disabilities that will
likely be:
(i) At least 10 percent compensable
under 38 U.S.C. chapter 11 and he or
she originally applied for assistance
under 38 U.S.C. chapter 31 after March
31, 1981, and before November 1, 1990;
or
(ii) At least 20 percent compensable
under 38 U.S.C. chapter 11 and he or
she originally applied for assistance
under 38 U.S.C. chapter 31 on or after
November 1, 1990.
(d) Exception for veterans who first
applied after March 31, 1981, and
before November 1, 1990. The
individual is a veteran who:
(1) Has a service-connected disability
or combination of disabilities rated less
than 20 percent under 38 U.S.C. chapter
11;
(2) Originally applied for assistance
under 38 U.S.C. chapter 31 after March
31, 1981, and before November 1, 1990;
and
(3) Is determined by VA to be in need
of rehabilitation because of an
employment handicap.
Authority: 38 U.S.C. ch. 11, 3102, 3103,
3106; sec. 8021(b), Pub. L. 101–508, 104 Stat.
1388–347; sec. 404(b), Pub. L. 102–568, 106
Stat. 4338, as amended by sec. 602, Pub. L.
103–446, 108 Stat. 4671.
4. In §§ 21.42 and 21.47, remove
‘‘§ 21.40(a)’’ each place that it appears
and add, in its place, ‘‘§ 21.40’’.
■ 5. Revise § 21.50(d) to read as follows:
■
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§ 21.50
Initial evaluation.
*
*
*
*
*
(d) Need for cooperation in the initial
evaluation process. The individual’s
cooperation is essential in the initial
evaluation process. If the individual
does not cooperate, the CP or VRC will
make reasonable efforts to secure the
individual’s cooperation. If, despite
those efforts, the individual fails to
cooperate, VA will suspend the initial
evaluation process (see § 21.362,
regarding satisfactory conduct and
cooperation, and § 21.364, regarding
unsatisfactory conduct and
cooperation).
Authority: 38 U.S.C. 3111.
6. Revise the undesignated center
heading immediately preceding § 21.282
and that section to read as follows:
■
Induction into a Rehabilitation
Program
§ 21.282 Effective date of induction into a
rehabilitation program; retroactive
induction.
(a) Entering a rehabilitation program.
The effective date of induction into a
rehabilitation program is governed by
the provisions of §§ 21.320 through
21.334, except as provided in this
section.
Authority: 38 U.S.C. 3108, 5113.
(b) Retroactive induction. Subject to
paragraphs (c) and (d) of this section, an
individual may be inducted into a
rehabilitation program on a retroactive
basis. If the individual is retroactively
inducted, VA may authorize payment
pursuant to § 21.262 or § 21.264 for
tuition, fees, and other verifiable
expenses that an individual paid or
incurred consistent with the approved
rehabilitation program. In addition, VA
may authorize payment of subsistence
allowance pursuant to §§ 21.260,
21.266, and 21.270 for the period of
retroactive induction, except for any
period during which the individual was
on active duty.
Authority: 38 U.S.C. 3108, 3113, 3681,
5113.
(c) Conditions for retroactive
induction. Retroactive induction into a
rehabilitation program may be
authorized for a past period under a
claim for vocational rehabilitation
benefits when all of the following
conditions are met:
(1) The past period is within—
(i) A period under § 21.40(c) during
which a servicemember was awaiting
discharge for disability; or
(ii) A period of eligibility under
§§ 21.41 through 21.44 or 38 U.S.C.
3103.
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3165
(2) The individual was entitled to
disability compensation under 38 U.S.C.
chapter 11 during the period or would
likely have been entitled to that
compensation but for active-duty
service.
(3) The individual met the criteria for
entitlement to vocational rehabilitation
benefits and services under 38 U.S.C.
chapter 31 in effect during the period.
(4) VA determines that the
individual’s training and other
rehabilitation services received during
the period were reasonably needed to
achieve the goals and objectives
identified for the individual and may be
included in the plan developed for the
individual (see §§ 21.80 through 21.88,
and §§ 21.92 through 21.98).
(5) VA has recouped any benefits that
it paid the individual for education or
training pursued under any VA
education program during any portion
of the period.
(6) An initial evaluation was
completed under § 21.50.
(7) A period of extended evaluation is
not needed to be able to determine the
reasonable feasibility of the
achievement of a vocational goal.
Authority: 38 U.S.C. 3102, 3103, 3108,
5113.
(d) Effective date for retroactive
induction. The effective date for
retroactive induction is the date when
all the entitlement conditions set forth
in paragraph (c) of this section are met,
and for a veteran (except as to a period
prior to discharge from active duty) in
no event before the effective date of a
VA rating under 38 U.S.C. chapter 11
establishing a qualifying level under
§ 21.40 of service-connected disability.
Authority: 38 U.S.C. 5113.
[FR Doc. 2010–886 Filed 1–19–10; 8:45 am]
BILLING CODE 8320–01–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 21
RIN 2900–AM84
Vocational Rehabilitation and
Employment Program—Periods of
Eligibility
Department of Veterans Affairs.
Final rule.
AGENCY:
ACTION:
SUMMARY: This document adopts
without change the proposed rule
published in the Federal Register on
March 9, 2009, amending regulations of
the Department of Veterans Affairs (VA)
concerning periods of eligibility
applicable to VA’s provision of
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Federal Register / Vol. 75, No. 12 / Wednesday, January 20, 2010 / Rules and Regulations
Vocational Rehabilitation and
Employment benefits and services. The
amendments clarify program
requirements, interpret and incorporate
new statutory requirements, and make
clarifying non-substantive changes.
DATES: Effective Date: This final rule is
effective February 19, 2010.
FOR FURTHER INFORMATION CONTACT:
Alvin Bauman, Senior Policy Analyst,
Vocational Rehabilitation and
Employment Service (28), Department
of Veterans Affairs, Veterans Benefits
Administration, 810 Vermont Ave.,
NW., Washington, DC 20420, (202) 461–
9613.
On March
9, 2009, VA published a proposed rule
in the Federal Register (74 FR 9975).
We proposed to amend VA’s regulations
in 38 CFR Part 21, Subpart A—
Vocational Rehabilitation Under 38
U.S.C. Chapter 31. The amendments in
the proposed rule concerned periods of
eligibility applicable to VA’s provision
of Vocational Rehabilitation and
Employment (VR&E) benefits and
services.
VA provided a 60-day comment
period for the proposed rule that ended
May 8, 2009. We received no comments.
Based on the rationale set forth in the
proposed rule, we are adopting the
provisions of the proposed rule as a
final rule without change.
Specifically, in 38 CFR 21.41, we are
clarifying the term ‘‘basic period of
eligibility.’’ We are revising § 21.42 to
clarify who is authorized to determine
that a veteran’s participation in a
vocational rehabilitation program is
reasonably feasible and when a basic
period of eligibility would begin or
resume. We are revising § 21.44 to more
clearly state the length of time that an
extension of the basic period of
eligibility for a veteran with a serious
employment handicap may be granted.
Section 21.45 is being revised to clearly
state the length of extension of the basic
period of eligibility for a veteran in a
program of independent living services.
Finally, we are adding a new § 21.46 to
reflect and interpret an amendment to
38 U.S.C. 3103 that extends the period
of eligibility for a veteran who VA
determines ‘‘was prevented from
participating’’ in a vocational
rehabilitation program because the
veteran was recalled to active duty.
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SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act of 1995
This document contains no provisions
constituting a collection of information
under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501–3521).
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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
year. This final rule will have no such
effect on State, local, and tribal
governments, or on the private sector.
Executive Order 12866
Executive Order 12866 directs
agencies to assess all 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, and other advantages;
distributive impacts; and equity). The
Executive Order classifies a regulatory
action as a ‘‘significant regulatory
action,’’ requiring review by the Office
of Management and Budget (OMB)
unless OMB waives such review, if it is
a regulatory action that is likely to result
in a rule that may: (1) Have an annual
effect on the economy of $100 million
or more or adversely affect in a material
way the economy, a sector of the
economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, or tribal
governments or communities; (2) create
a serious inconsistency or otherwise
interfere with an action taken or
planned by another agency; (3)
materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; or (4) raise novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the Executive
Order.
The economic, interagency,
budgetary, legal, and policy
implications of this final rule have been
examined and it has been determined
not to be a significant regulatory action
under Executive Order 12866.
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 not affect any small entities. Only
individuals will be affected. Therefore,
pursuant to 5 U.S.C. 605(b), this final
rule is exempt from the initial and final
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regulatory flexibility analysis
requirements of sections 603 and 604.
Catalog of Federal Domestic Assistance
The program that this final rule will
affect has the following Catalog of
Federal Domestic Assistance number
and title: 64.116, Vocational
Rehabilitation for Disabled Veterans.
List of Subjects in 38 CFR Part 21
Administrative practice and
procedure, Armed forces, Civil rights,
Claims, Colleges and universities,
Conflict of interests, Education,
Employment, Grant programseducation, Grant programs-veterans,
Health care, Loan programs-education,
Loan programs-veterans, Manpower
training programs, Reporting and
recordkeeping requirements, Schools,
Travel and transportation expenses,
Veterans, Vocational education,
Vocational rehabilitation.
Approved: December 8, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.
For the reasons set forth in the
preamble, VA amends 38 CFR part 21
(subpart A) as follows:
■
PART 21—VOCATIONAL
REHABILITATION AND EDUCATION
Subpart A—Vocational Rehabilitation
and Employment Under 38 U.S.C.
Chapter 31
1. Revise the authority citation for part
21, subpart A to read as follows:
■
Authority: 38 U.S.C. 501(a), chs. 18, 31,
and as noted in specific sections.
2. Revise the subpart A heading as set
forth above.
■ 3. Revise §§ 21.41, 21.42, 21.44, and
21.45 to read as follows:
■
§ 21.41
Basic period of eligibility.
(a) Time limit for eligibility to receive
vocational rehabilitation. (1) For
purposes of §§ 21.41 through 21.46, the
term basic period of eligibility means
the 12-year period beginning on the date
of a veteran’s discharge or release from
his or her last period of active military,
naval, or air service, and ending on the
date that is 12 years from the veteran’s
discharge or release date, but the
beginning date may be deferred or the
ending date extended under the sections
referred to in paragraph (b) of this
section. (See §§ 21.70 through 21.79
concerning duration of rehabilitation
programs.)
(2) Except as provided in paragraph
(b) or (c) of this section, the period
during which an individual may receive
a program of vocational rehabilitation
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benefits and services under 38 U.S.C.
chapter 31 is limited to his or her basic
period of eligibility.
(b) Deferral and extension of the basic
period of eligibility. VA may defer the
beginning date of a veteran’s basic
period of eligibility under § 21.42. VA
may extend the ending date of a
veteran’s basic period of eligibility
under § 21.42 (extension due to medical
condition); § 21.44 (extension for a
veteran with a serious employment
handicap), § 21.45 (extension during a
program of independent living services
and assistance), and § 21.46 (extension
for a veteran recalled to active duty).
(Authority: 38 U.S.C. 3103)
(c) Servicemember entitled to
vocational rehabilitation services and
assistance before discharge. The basic
period of eligibility for a servicemember
who is entitled to vocational
rehabilitation services and assistance
under 38 U.S.C. chapter 31 for a period
before discharge does not run while the
servicemember remains on active duty,
but begins on the date of discharge from
the active military, naval, or air service.
The period of eligibility requirements of
this section are not applicable to
provision of vocational rehabilitation
services and assistance under chapter 31
during active duty.
(Authority: 38 U.S.C. 3102, 3103)
§ 21.42 Deferral or extension of the basic
period of eligibility.
The basic period of eligibility does
not run as long as any of the following
reasons prevents the veteran from
commencing or continuing a vocational
rehabilitation program:
(a) Qualifying compensable serviceconnected disability(ies) not
established. The basic period of
eligibility does not commence until the
day VA notifies a veteran of a rating
determination by VA that the veteran
has a qualifying compensable serviceconnected disability under § 21.40.
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(Authority: 38 U.S.C. 3103(b)(3))
(b) Character of discharge is a bar to
benefits.
(1) The basic period of eligibility does
not commence until the veteran meets
the requirement of a discharge or release
under conditions other than
dishonorable. (For provisions regarding
character of discharge, see § 3.12 of this
chapter.)
(2) If VA has considered a veteran’s
character of discharge to be a bar to
benefits, the basic period of eligibility
commences only when one of the
following happens:
(i) An appropriate authority changes
the character of discharge or release; or
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(ii) VA determines that the discharge
or release was under conditions other
than dishonorable or that the discharge
or release was, but no longer is, a bar to
benefits.
(3) If there is a change in the character
of discharge, or the discharge or release
otherwise is determined, as provided in
paragraph (b)(2) of this section, not to be
a bar to benefits, the beginning date of
the basic period of eligibility will be the
effective date of the change or VA
determination.
(Authority: 38 U.S.C. 3103(b)(2))
(c) Commencement or continuation of
participation prevented by medical
condition(s).
(1) The basic period of eligibility does
not run during any period when a
veteran’s participation in a vocational
rehabilitation program is determined to
be infeasible for 30 days or more
because of any medical condition(s) of
the veteran, including the disabling
effects of chronic alcoholism (see
paragraphs (c)(2) through (c)(5) of this
section).
(2) For purposes of this section, the
term disabling effects of chronic
alcoholism means alcohol-induced
physical or mental disorders or both,
such as habitual intoxication,
withdrawal, delirium, amnesia,
dementia, and other like manifestations
that:
(i) Have been diagnosed as
manifestations of alcohol dependency or
chronic alcohol abuse; and
(ii) Have been determined to prevent
the affected veteran from beginning or
continuing in a program of vocational
rehabilitation and employment.
(3) A diagnosis of alcoholism, chronic
alcoholism, alcohol dependency, or
chronic alcohol abuse, in and of itself,
does not satisfy the definition of
disabling effects of chronic alcoholism.
(4) Injuries sustained by a veteran as
a proximate and immediate result of
activity undertaken by the veteran while
physically or mentally unqualified to do
so due to alcoholic intoxication are not
considered disabling effects of chronic
alcoholism. An injury itself, however,
may prevent commencement or
continuation of a rehabilitation
program.
(5) For purposes of this section, after
November 17, 1988, the disabling effects
of chronic alcoholism do not constitute
willful misconduct. See 38 U.S.C.
105(c).
(6) If the basic period of eligibility is
delayed or interrupted under this
paragraph (c) due to any medical
condition(s) of the veteran, it will begin
or resume on the date a Counseling
Psychologist (CP) or Vocational
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3167
Rehabilitation Counselor (VRC) notifies
the veteran in writing that the CP or
VRC has determined, based on the
evidence of record, that participation in
a vocational rehabilitation program is
reasonably feasible for the veteran.
(Authority: 38 U.S.C. 3103(b)(1))
§ 21.44 Extension of the basic period of
eligibility for a veteran with a serious
employment handicap.
(a) Conditions for extension. A
Counseling Psychologist (CP) or
Vocational Rehabilitation Counselor
(VRC) may extend the basic period of
eligibility of a veteran with a serious
employment handicap when the
veteran’s current employment handicap
and need for rehabilitation services and
assistance necessitate an extension
under the following conditions:
(1) Not rehabilitated to the point of
employability. The veteran has not been
rehabilitated to the point of
employability; or
(Authority: 38 U.S.C. 3103(c))
(2) Rehabilitated to the point of
employability. The veteran was
previously declared rehabilitated to the
point of employability, but currently
meets one of the following three
conditions:
(i) One or more of the veteran’s
service-connected disabilities has
worsened, preventing the veteran from
working in the occupation for which he
or she trained, or in a related
occupation;
(ii) The veteran’s current employment
handicap and capabilities clearly show
that the occupation for which the
veteran previously trained is currently
unsuitable; or
(iii) The occupational requirements in
the occupation for which the veteran
trained have changed to such an extent
that additional services are necessary to
enable the veteran to work in that
occupation, or in a related field.
(Authority: 38 U.S.C. 3103(c))
(b) Length of eligibility extension. For
a veteran with a serious employment
handicap, a CP or VRC may extend the
basic period of eligibility for such
additional period as the CP or VRC
determines is needed for the veteran to
accomplish the purposes of his or her
individualized rehabilitation program.
(Authority: 38 U.S.C. 3103(c))
§ 21.45 Extending the period of eligibility
for a program of independent living beyond
basic period of eligibility.
A Counseling Psychologist (CP) or
Vocational Rehabilitation Counselor
(VRC) may extend the period of
eligibility for a veteran’s program of
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independent living services beyond the
veteran’s basic period of eligibility if the
CP or VRC determines that an extension
is necessary for the veteran to achieve
maximum independence in daily living.
The extension may be for such period as
the CP or VRC determines is needed for
the veteran to achieve the goals of his
or her program of independent living.
(See § 21.76(b) concerning duration of
independent living services.)
(Authority: 38 U.S.C. 3103(d))
■
4. Add § 21.46 to read as follows:
§ 21.46 Veteran ordered to active duty;
extension of basic period of eligibility.
If VA determines that a veteran is
prevented from participating in, or
continuing in, a program of vocational
rehabilitation as a result of being
ordered to active duty under 10 U.S.C.
688, 12301(a), 12301(d), 12301(g),
12302, or 12304, the veteran’s basic
period of eligibility will be extended by
the length of time the veteran serves on
active duty plus 4 months.
(Authority: 38 U.S.C. 3103(e); sec. 308(h),
Pub. L. 107–330, 116 Stat. 2829)
[FR Doc. 2010–879 Filed 1–19–10; 8:45 am]
BILLING CODE 8320–01–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 21
RIN 2900–AN31
Vocational Rehabilitation and
Employment Program—SelfEmployment
Department of Veterans Affairs.
Final rule.
AGENCY:
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ACTION:
SUMMARY: This document amends the
vocational rehabilitation and
employment regulations of the
Department of Veterans Affairs (VA)
concerning self-employment for
individuals with qualifying disabilities.
We are making changes to conform VA’s
regulations for self-employment
programs for veterans, and for
servicemembers awaiting discharge, to
statutory provisions, including
provisions limiting eligibility for certain
supplies, equipment, stock, and license
fees to individuals with the most severe
service-connected disabilities. We are
also making related changes in VA’s
regulations affecting eligibility for such
assistance for certain veterans’ children
with birth defects in self-employment
programs. In addition, we are amending
our regulations regarding the approval
authority for self-employment plans to
make certain requirements less
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restrictive and less burdensome, to
remove a vague and overly broad
requirement, to make changes to reflect
longstanding VA policy, and to make
nonsubstantive clarifying changes.
DATES: Effective Date: This final rule is
effective February 19, 2010.
Applicability Dates: Except as noted
in the Supplementary Information
section, this final rule applies to claims
pending on or after February 19, 2010.
FOR FURTHER INFORMATION CONTACT:
Alvin Bauman, Senior Policy Analyst,
Vocational Rehabilitation and
Employment Service (28), Veterans
Benefits Administration, Department of
Veterans Affairs, 810 Vermont Ave.,
NW., Washington, DC 20420, (202) 461–
9613 (not a toll-free number).
SUPPLEMENTARY INFORMATION: In a
document published in the Federal
Register on April 28, 2009 (74 FR
19164), we proposed to amend VA’s
regulations concerning self-employment
in 38 CFR part 21 that are applicable to
benefits and services under 38 U.S.C.
chapter 31, Training and Rehabilitation
for Veterans with Service-Connected
Disabilities, and 38 U.S.C. chapter 18,
Benefits for Children of Vietnam
Veterans and Certain Other Veterans.
We provided a 60-day comment period
that ended on June 29, 2009. We
received comments from one individual
in support of the proposed changes.
Consequently, we make no changes
based on the commenter’s submission.
The Veterans’ Benefits Act of 1996,
Public Law 104–275 (enacted October 9,
1996), amended 38 U.S.C. 3104(a)(12)
regarding the special assistance and
supplies that VA can provide for
individuals pursuing self-employment
programs. Prior to the enactment of
Public Law 104–275, only ‘‘the most
severely disabled’’ individuals who
required self-employment were, under
38 CFR 21.258, entitled to the special
supplies, equipment, stock, and license
fees described in 38 CFR 21.214(e).
Public Law 104–275 amended
3104(a)(12) by restricting the provision
of those special supplies, equipment,
stock, and license fees to individuals
‘‘with the most severe service-connected
disabilities who require homebound
training or self employment.’’ VA
implemented the statutory amendments
upon enactment but until this
rulemaking did not incorporate them in
VA’s regulations. This rule conforms
VA’s regulations to the statutory
provisions and prescribes (in § 21.257
rather than current § 21.258) criteria for
providing such special supplies,
equipment, stock, and license fees for
individuals who require selfemployment.
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We are revising some of the
requirements under § 21.254 pertaining
to a service-disabled veteran trained for
self-employment under a State
rehabilitation agency. We are
eliminating the burdensome and
restrictive requirement under § 21.254
for certification by an official of the
State rehabilitation agency with
responsibility for administration of selfemployment programs. Instead, we are
listing the conditions under which an
individual who has trained for selfemployment under a State rehabilitation
agency may be provided special
supplies, equipment, stock, and license
fees if there is a VA determination that
the qualifying criteria are met.
In addition, we are eliminating the
requirement currently in § 21.254 that,
prior to authorization of any supplies,
the Director, Vocational Rehabilitation
and Education (VR&E) Service, must
approve the request if the cost of
supplies is more than $2,500.
We are amending the criteria for
approval of self-employment as a
vocational goal for an individual.
Current § 21.257(a) is overly restrictive
because it maintains that selfemployment is only available to an
individual if access to the normal
channels for suitable employment is
limited by his or her disability(ies).
Current § 21.257(b) is vague because it
does not specify what other
circumstances in the individual’s
situation warrant consideration of selfemployment. Self-employment as a
mode of employment is authorized for
all program participants for whom it is
deemed appropriate for achieving
rehabilitation. We are revising § 21.257
to remove the above-referenced
restriction on authorizing selfemployment as a suitable vocational
goal and to limit consistent with the
amendment to section 3104(a)(12) the
self-employment special assistance
under 38 CFR 21.214(e) to ‘‘individuals
with the most severe service-connected
disability(ies) who require selfemployment.’’
The approval requirement of costs
related to self-employment programs is
in accordance with 38 U.S.C.
3104(a)(12). We are amending § 21.258
to reflect existing VA policy that
requires approval of costs of the
provision of special supplies,
equipment, stock, and license fees for
self-employment programs. Section
21.258 will require that a selfemployment plan having an actual or
estimated cost of $25,000 or more must
be approved by the Director, VR&E
Service.
Many of the amendments to 38 CFR
part 21, subpart A, in this final rule are
E:\FR\FM\20JAR1.SGM
20JAR1
]]>Agencies
[Federal Register Volume 75, Number 12 (Wednesday, January 20, 2010)]
[Rules and Regulations]
[Pages 3165-3168]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-879]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 21
RIN 2900-AM84
Vocational Rehabilitation and Employment Program--Periods of
Eligibility
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document adopts without change the proposed rule
published in the Federal Register on March 9, 2009, amending
regulations of the Department of Veterans Affairs (VA) concerning
periods of eligibility applicable to VA's provision of
[[Page 3166]]
Vocational Rehabilitation and Employment benefits and services. The
amendments clarify program requirements, interpret and incorporate new
statutory requirements, and make clarifying non-substantive changes.
DATES: Effective Date: This final rule is effective February 19, 2010.
FOR FURTHER INFORMATION CONTACT: Alvin Bauman, Senior Policy Analyst,
Vocational Rehabilitation and Employment Service (28), Department of
Veterans Affairs, Veterans Benefits Administration, 810 Vermont Ave.,
NW., Washington, DC 20420, (202) 461-9613.
SUPPLEMENTARY INFORMATION: On March 9, 2009, VA published a proposed
rule in the Federal Register (74 FR 9975). We proposed to amend VA's
regulations in 38 CFR Part 21, Subpart A--Vocational Rehabilitation
Under 38 U.S.C. Chapter 31. The amendments in the proposed rule
concerned periods of eligibility applicable to VA's provision of
Vocational Rehabilitation and Employment (VR&E) benefits and services.
VA provided a 60-day comment period for the proposed rule that
ended May 8, 2009. We received no comments. Based on the rationale set
forth in the proposed rule, we are adopting the provisions of the
proposed rule as a final rule without change.
Specifically, in 38 CFR 21.41, we are clarifying the term ``basic
period of eligibility.'' We are revising Sec. 21.42 to clarify who is
authorized to determine that a veteran's participation in a vocational
rehabilitation program is reasonably feasible and when a basic period
of eligibility would begin or resume. We are revising Sec. 21.44 to
more clearly state the length of time that an extension of the basic
period of eligibility for a veteran with a serious employment handicap
may be granted. Section 21.45 is being revised to clearly state the
length of extension of the basic period of eligibility for a veteran in
a program of independent living services. Finally, we are adding a new
Sec. 21.46 to reflect and interpret an amendment to 38 U.S.C. 3103
that extends the period of eligibility for a veteran who VA determines
``was prevented from participating'' in a vocational rehabilitation
program because the veteran was recalled to active duty.
Paperwork Reduction Act of 1995
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
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 year. This final rule will have no such effect on
State, local, and tribal governments, or on the private sector.
Executive Order 12866
Executive Order 12866 directs agencies to assess all 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,
and other advantages; distributive impacts; and equity). The Executive
Order classifies a regulatory action as a ``significant regulatory
action,'' requiring review by the Office of Management and Budget (OMB)
unless OMB waives such review, if it is a regulatory action that is
likely to result in a rule that may: (1) Have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
The economic, interagency, budgetary, legal, and policy
implications of this final rule have been examined and it has been
determined not to be a significant regulatory action under Executive
Order 12866.
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 not affect any small entities. Only
individuals will be affected. Therefore, pursuant to 5 U.S.C. 605(b),
this final rule is exempt from the initial and final regulatory
flexibility analysis requirements of sections 603 and 604.
Catalog of Federal Domestic Assistance
The program that this final rule will affect has the following
Catalog of Federal Domestic Assistance number and title: 64.116,
Vocational Rehabilitation for Disabled Veterans.
List of Subjects in 38 CFR Part 21
Administrative practice and procedure, Armed forces, Civil rights,
Claims, Colleges and universities, Conflict of interests, Education,
Employment, Grant programs-education, Grant programs-veterans, Health
care, Loan programs-education, Loan programs-veterans, Manpower
training programs, Reporting and recordkeeping requirements, Schools,
Travel and transportation expenses, Veterans, Vocational education,
Vocational rehabilitation.
Approved: December 8, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.
0
For the reasons set forth in the preamble, VA amends 38 CFR part 21
(subpart A) as follows:
PART 21--VOCATIONAL REHABILITATION AND EDUCATION
Subpart A--Vocational Rehabilitation and Employment Under 38 U.S.C.
Chapter 31
0
1. Revise the authority citation for part 21, subpart A to read as
follows:
Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in
specific sections.
0
2. Revise the subpart A heading as set forth above.
0
3. Revise Sec. Sec. 21.41, 21.42, 21.44, and 21.45 to read as follows:
Sec. 21.41 Basic period of eligibility.
(a) Time limit for eligibility to receive vocational
rehabilitation. (1) For purposes of Sec. Sec. 21.41 through 21.46, the
term basic period of eligibility means the 12-year period beginning on
the date of a veteran's discharge or release from his or her last
period of active military, naval, or air service, and ending on the
date that is 12 years from the veteran's discharge or release date, but
the beginning date may be deferred or the ending date extended under
the sections referred to in paragraph (b) of this section. (See
Sec. Sec. 21.70 through 21.79 concerning duration of rehabilitation
programs.)
(2) Except as provided in paragraph (b) or (c) of this section, the
period during which an individual may receive a program of vocational
rehabilitation
[[Page 3167]]
benefits and services under 38 U.S.C. chapter 31 is limited to his or
her basic period of eligibility.
(b) Deferral and extension of the basic period of eligibility. VA
may defer the beginning date of a veteran's basic period of eligibility
under Sec. 21.42. VA may extend the ending date of a veteran's basic
period of eligibility under Sec. 21.42 (extension due to medical
condition); Sec. 21.44 (extension for a veteran with a serious
employment handicap), Sec. 21.45 (extension during a program of
independent living services and assistance), and Sec. 21.46 (extension
for a veteran recalled to active duty).
(Authority: 38 U.S.C. 3103)
(c) Servicemember entitled to vocational rehabilitation services
and assistance before discharge. The basic period of eligibility for a
servicemember who is entitled to vocational rehabilitation services and
assistance under 38 U.S.C. chapter 31 for a period before discharge
does not run while the servicemember remains on active duty, but begins
on the date of discharge from the active military, naval, or air
service. The period of eligibility requirements of this section are not
applicable to provision of vocational rehabilitation services and
assistance under chapter 31 during active duty.
(Authority: 38 U.S.C. 3102, 3103)
Sec. 21.42 Deferral or extension of the basic period of eligibility.
The basic period of eligibility does not run as long as any of the
following reasons prevents the veteran from commencing or continuing a
vocational rehabilitation program:
(a) Qualifying compensable service-connected disability(ies) not
established. The basic period of eligibility does not commence until
the day VA notifies a veteran of a rating determination by VA that the
veteran has a qualifying compensable service-connected disability under
Sec. 21.40.
(Authority: 38 U.S.C. 3103(b)(3))
(b) Character of discharge is a bar to benefits.
(1) The basic period of eligibility does not commence until the
veteran meets the requirement of a discharge or release under
conditions other than dishonorable. (For provisions regarding character
of discharge, see Sec. 3.12 of this chapter.)
(2) If VA has considered a veteran's character of discharge to be a
bar to benefits, the basic period of eligibility commences only when
one of the following happens:
(i) An appropriate authority changes the character of discharge or
release; or
(ii) VA determines that the discharge or release was under
conditions other than dishonorable or that the discharge or release
was, but no longer is, a bar to benefits.
(3) If there is a change in the character of discharge, or the
discharge or release otherwise is determined, as provided in paragraph
(b)(2) of this section, not to be a bar to benefits, the beginning date
of the basic period of eligibility will be the effective date of the
change or VA determination.
(Authority: 38 U.S.C. 3103(b)(2))
(c) Commencement or continuation of participation prevented by
medical condition(s).
(1) The basic period of eligibility does not run during any period
when a veteran's participation in a vocational rehabilitation program
is determined to be infeasible for 30 days or more because of any
medical condition(s) of the veteran, including the disabling effects of
chronic alcoholism (see paragraphs (c)(2) through (c)(5) of this
section).
(2) For purposes of this section, the term disabling effects of
chronic alcoholism means alcohol-induced physical or mental disorders
or both, such as habitual intoxication, withdrawal, delirium, amnesia,
dementia, and other like manifestations that:
(i) Have been diagnosed as manifestations of alcohol dependency or
chronic alcohol abuse; and
(ii) Have been determined to prevent the affected veteran from
beginning or continuing in a program of vocational rehabilitation and
employment.
(3) A diagnosis of alcoholism, chronic alcoholism, alcohol
dependency, or chronic alcohol abuse, in and of itself, does not
satisfy the definition of disabling effects of chronic alcoholism.
(4) Injuries sustained by a veteran as a proximate and immediate
result of activity undertaken by the veteran while physically or
mentally unqualified to do so due to alcoholic intoxication are not
considered disabling effects of chronic alcoholism. An injury itself,
however, may prevent commencement or continuation of a rehabilitation
program.
(5) For purposes of this section, after November 17, 1988, the
disabling effects of chronic alcoholism do not constitute willful
misconduct. See 38 U.S.C. 105(c).
(6) If the basic period of eligibility is delayed or interrupted
under this paragraph (c) due to any medical condition(s) of the
veteran, it will begin or resume on the date a Counseling Psychologist
(CP) or Vocational Rehabilitation Counselor (VRC) notifies the veteran
in writing that the CP or VRC has determined, based on the evidence of
record, that participation in a vocational rehabilitation program is
reasonably feasible for the veteran.
(Authority: 38 U.S.C. 3103(b)(1))
Sec. 21.44 Extension of the basic period of eligibility for a veteran
with a serious employment handicap.
(a) Conditions for extension. A Counseling Psychologist (CP) or
Vocational Rehabilitation Counselor (VRC) may extend the basic period
of eligibility of a veteran with a serious employment handicap when the
veteran's current employment handicap and need for rehabilitation
services and assistance necessitate an extension under the following
conditions:
(1) Not rehabilitated to the point of employability. The veteran
has not been rehabilitated to the point of employability; or
(Authority: 38 U.S.C. 3103(c))
(2) Rehabilitated to the point of employability. The veteran was
previously declared rehabilitated to the point of employability, but
currently meets one of the following three conditions:
(i) One or more of the veteran's service-connected disabilities has
worsened, preventing the veteran from working in the occupation for
which he or she trained, or in a related occupation;
(ii) The veteran's current employment handicap and capabilities
clearly show that the occupation for which the veteran previously
trained is currently unsuitable; or
(iii) The occupational requirements in the occupation for which the
veteran trained have changed to such an extent that additional services
are necessary to enable the veteran to work in that occupation, or in a
related field.
(Authority: 38 U.S.C. 3103(c))
(b) Length of eligibility extension. For a veteran with a serious
employment handicap, a CP or VRC may extend the basic period of
eligibility for such additional period as the CP or VRC determines is
needed for the veteran to accomplish the purposes of his or her
individualized rehabilitation program.
(Authority: 38 U.S.C. 3103(c))
Sec. 21.45 Extending the period of eligibility for a program of
independent living beyond basic period of eligibility.
A Counseling Psychologist (CP) or Vocational Rehabilitation
Counselor (VRC) may extend the period of eligibility for a veteran's
program of
[[Page 3168]]
independent living services beyond the veteran's basic period of
eligibility if the CP or VRC determines that an extension is necessary
for the veteran to achieve maximum independence in daily living. The
extension may be for such period as the CP or VRC determines is needed
for the veteran to achieve the goals of his or her program of
independent living. (See Sec. 21.76(b) concerning duration of
independent living services.)
(Authority: 38 U.S.C. 3103(d))
0
4. Add Sec. 21.46 to read as follows:
Sec. 21.46 Veteran ordered to active duty; extension of basic period
of eligibility.
If VA determines that a veteran is prevented from participating in,
or continuing in, a program of vocational rehabilitation as a result of
being ordered to active duty under 10 U.S.C. 688, 12301(a), 12301(d),
12301(g), 12302, or 12304, the veteran's basic period of eligibility
will be extended by the length of time the veteran serves on active
duty plus 4 months.
(Authority: 38 U.S.C. 3103(e); sec. 308(h), Pub. L. 107-330, 116
Stat. 2829)
[FR Doc. 2010-879 Filed 1-19-10; 8:45 am]
BILLING CODE 8320-01-P
