[Federal Register Volume 60, Number 213 (Friday, November 3, 1995)]
[Rules and Regulations]
[Pages 55791-55792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27278]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AH10
Determinations of Incompetency and Competency
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
adjudication regulations concerning determinations of mental
incompetency to make clear that only rating boards are authorized to
make determinations of incompetency for purposes of VA benefits and VA
insurance.
EFFECTIVE DATE: This amendment is effective November 3, 1995.
FOR FURTHER INFORMATION CONTACT: Paul Trowbridge, Consultant,
Regulations Staff, Compensation and Pension Service, Veterans Benefits
Administration, 810 Vermont Avenue, NW., Washington, DC 20420,
telephone (202) 273-7210.
SUPPLEMENTARY INFORMATION: On May 4, 1995, VA published in the Federal
Register (60 FR 22016) a proposed rule intended to clarify that rating
agencies have sole authority to make determinations of competency and
incompetency for purposes of insurance and payment of VA benefits.
Interested parties were invited to submit written comments on or before
July 3, 1995. We received no comments.
Based on the rationale set forth in the proposed rule and this
document, the provisions of the proposed rule are adopted as a final
rule with nonsubstantive changes to paragraph (b)(1) of Sec. 3.353.
These changes clarify that VA determinations of competency or
incompetency affect only VA benefits, i.e., insurance, discontinuance
and payment of amounts withheld because of an estate in excess of
$1,500, and disbursement of benefits. This will ensure that this
paragraph would not be interpreted to concern such things as the
ability of the veteran to provide informed consent for medical
treatment, or the ability of VA physicians and other VA medical
professionals to determine a patient's mental capacity in support of
guardianship and conservatorship petitions in state courts.
The Secretary 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 amendment will directly affect VA beneficiaries but
[[Page 55792]]
will not affect small businesses. Therefore, pursuant to 5 U.S.C.
606(b), this final rule is exempt from the initial and final regulatory
flexibility analysis requirements of sections 603 and 604.
The Catalog of Federal Domestic Assistance program numbers are
64.104, 64.105, 64.109 and 64.110.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Health care,
Individuals with disabilities, Pensions, Veterans.
Approved: October 26, 1995.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 3 is amended
as follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
1. The authority citation for part 3, subpart A, continues to read
as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
2. Section 3.353 is amended by revising paragraph (b) to read as
follows:
Sec. 3.353 Determinations of incompetency and competency.
* * * * *
(b) Authority. (1) Rating agencies have sole authority to make
official determinations of competency and incompetency for purposes of:
insurance (38 U.S.C. 1922), the discontinuance and payment of amounts
withheld because of an estate in excess of $1,500 (Sec. 3.557(b)), and,
subject to Sec. 13.56 of this chapter, disbursement of benefits. Such
determinations are final and binding on field stations for these
purposes.
(2) Where the beneficiary is rated incompetent the Adjudication
Officer will inform the Veterans Services Officer of jurisdiction of
that fact. The Veterans Services Officer will develop information as to
the beneficiary's social, economic and industrial adjustment and
appoint (or recommend appointment of) a fiduciary as provided in
Sec. 13.55 of this chapter, select a method of disbursing payment as
provided in Sec. 13.56 of this chapter, or in the case of a married
beneficiary, appoint the beneficiary's spouse to receive payments as
provided in Sec. 13.57 of this chapter. The Adjudication Officer will
authorize disbursement of the benefit in the manner selected by the
Veterans Services Officer.
(3) If in the course of fulfilling the responsibilities assigned in
paragraph (b)(2) the Veterans Services Officer develops evidence
indicating that the beneficiary may be capable of administering the
funds payable without limitation, he or she will refer that evidence to
the rating agency with a statement as to his or her findings. The
rating agency will consider this evidence, together with all other
evidence of record, to determine whether its prior determination of
incompetency should remain in effect. Reexamination may be requested as
provided in Sec. 3.327(a) if necessary to properly evaluate the
beneficiary's mental capacity to contract or manage his or her own
affairs.
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[FR Doc. 95-27278 Filed 11-2-95; 8:45 am]
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