[Federal Register Volume 63, Number 213 (Wednesday, November 4, 1998)]
[Proposed Rules]
[Pages 59495-59500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-29490]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 14
RIN 2900-AI93
Recognition of Organizations and Accreditation of
Representatives, Attorneys, and Agents
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to revise
existing procedures and requirements regarding recognition of service
organizations and accreditation of their representatives and agents,
attorneys, and individuals seeking to represent claimants for benefits
administered by VA. These amendments are necessary to improve clarity
and to enhance VA's ability to assure high quality representation of
claimants.
DATES: Comments must be received on or before January 4, 1999.
ADDRESSES: Mail or hand-deliver written comments to: Director, Office
of Regulations Management (02D), Department of Veterans Affairs, 810
Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should
indicate that they are submitted in response to ``RIN 2900-AI93.'' All
written comments will be available for public inspection at the above
address in the Office of Regulations Management, Room 1158, between the
hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except
holidays).
FOR FURTHER INFORMATION CONTACT: Martin J. Sendek, Staff Attorney,
Office of the General Counsel (022C), Department of Veterans Affairs,
810 Vermont Ave., NW, Washington, DC 20420, (202) 273-6330.
SUPPLEMENTARY INFORMATION: We are proposing to make numerous minor
changes in the provisions governing recognition of organizations and
accreditation of representatives, agents, attorneys, and individuals
for purposes of updating, clarification, and conformity and to enhance
VA's ability to protect the interests of claimants.
New definitions of ``complete claims service,'' ``cross-
accreditation,'' and ``facilities'' would be added to Sec. 14.627 to
assist in implementation of other provisions discussed below. The
definition of ``facilities'' would reflect General Counsel opinions
interpreting that term. The definition of ``claimant'' in Sec. 14.627
would be amended to reflect that representation may begin before a
claim is filed.
In Sec. 14.628, minor changes would be made in provisions governing
recognition of ``national,'' ``state,'' and ``other organizations.'' In
order to meet the diversification requirement for recognition as a
``national'' organization, an organization would be required to have a
sizable number of chapters or offices in more than one region of the
country, rather than merely in more than one state, as is currently
required. This would provide better evidence that an organization is
truly ``national'' in the scope of its operations. In the case of
``state'' organizations, the regulation would be amended to require
that the organization not only be created by a state government, as is
currently required, but that it also be funded by the state government.
This change would assure that the organization is in fact affiliated
with and supported by the state government. Also, provisions currently
designated as relating to ``other'' organizations would be given the
more descriptive heading of ``regional or local organization.''
Provisions in Sec. 14.628 pertaining to the qualification of service
organizations for recognition would be condensed and simplified. The
requirements for recognition would be revised to make clear that an
organization seeking recognition must establish that it has adequate
funding to fulfill the representational responsibilities it wishes to
assume. Requirements relating to the provision of complete claims
service would be modified to reflect that certain organizations may not
choose to represent every claimant seeking their assistance and to
assure that the interests of claimants are protected in such cases.
Rules governing the decision to grant or deny recognition would be
simplified and would be revised to make clear that only the Secretary
of Veterans Affairs may grant recognition and that the General Counsel
may deny recognition, subject to appeal to the Secretary.
Provisions pertaining to the accreditation of service organization
representatives in Sec. 14.629(a) would be amended to delete certain
obsolete material relating to the qualifications of representatives.
Provisions pertaining to the accreditation of agents in Sec. 14.629(b)
would be amended to require that applicants for accreditation as agents
use VA Form 21a prescribed by VA for that purpose. The information
required to be submitted on this form would be set forth in the
regulation at proposed Sec. 14.629(b). The information required to be
included on the form is necessary to establish that statutory
eligibility requirements, i.e., good character and reputation, are met.
This change is intended to assure that all necessary information will
be supplied with the application. Section 14.629(b) would also be
simplified by omission of certain provisions pertaining to internal VA
procedures. Further, Sec. 14.629(b) would provide that an applicant
must achieve a score of 75 percent or more on a written examination
administered by VA. We believe this will ensure sufficient proficiency
to represent claimants before this Department.
Provisions in Secs. 14.629 and 14.631 concerning authorization of
representation by attorneys and use of legal interns, law students, and
paralegals would be consolidated and clarified. Provisions governing
attorneys' access to records would be removed from Sec. 14.629(c).
Rules governing access to records are stated in part 1 of title 38,
Code of Federal Regulations, and their duplication in this part is
unnecessary.
Proposed amendments to Sec. 14.630 would incorporate VA's long-
standing interpretation that the authorization to represent a claimant
under that section is available on a one-time-only basis and may not be
used to represent a series of claimants one at a time. The revised
provisions would also specify factors which may be considered by the
General Counsel in determining whether to grant an exception to this
limitation.
The provisions pertaining to powers of attorney in Sec. 14.631
would be modified to reflect a change in the law made by section 508 of
Pub. L. 104-275. Under the revised provision, when a claimant executes
a power of attorney in favor of a representative of a recognized
service organization, unless the claimant indicates otherwise in the
specific manner prescribed in the regulations, the power of attorney
would be considered as designating the whole organization as the
claimant's representative. Also, the regulation would be amended to
reflect that a claimant may select an individual service organization
representative as his or her representative if prescribed procedures
are followed. A provision would be added to make clear that a
representative designated in a power of attorney can decline to accept
the
[[Page 59496]]
appointment and to assure that the claimant and VA are notified of that
action. Current Sec. 14.631(e), dealing with the continuation of the
authority of a power of attorney upon a claimant's death, would be
removed to reflect recent court decisions.
Section 14.632 would be amended to revise obsolete terminology and
to delete provisions relating to internal VA procedures.
Section 14.633(a), regarding termination of accreditation, would be
modified to make clear that accreditation shall be canceled immediately
upon receipt of a request for cancellation from an agent, attorney,
representative, or certifying organization and that cross-accreditation
shall be canceled immediately once the accreditation on which the
cross-accreditation is based is canceled. In order to better inform
representatives of VA's expectations regarding their responsibilities
to claimants, Sec. 14.633(c) would be amended to add failure to keep a
claimant informed of actions taken concerning a claim as an additional
example of conduct warranting disciplinary action. VA regulations are
not intended to define or affect any professional responsibilities of
attorneys as members of the bar.
Section 14.633(e) would be amended to allow a Regional Counsel to
suspend an agent's or attorney's accreditation for misconduct or
incompetence, after an inquiry, pending a decision on termination of
accreditation by the General Counsel. This change would make procedures
applicable to agents and attorneys consistent with those applicable to
representatives and would permit the Department to better protect the
interests of claimants. In recognition of the national practice of
certain claimants' representatives, Sec. 14.633(e) would also be
amended to make clear that a Regional Counsel undertaking an inquiry
concerning the conduct of an agent, attorney, or service organization
representative may request the assistance of another Regional Counsel
as to matters within the latter's area of jurisdiction. Section
14.633(g) would be amended to clarify the actions, including suspension
of accreditation and the issuance of a formal reprimand, which the
General Counsel may take with respect to disciplinary proceedings and
to state procedures for reinstatement of accreditation following
cancellation.
Section 14.635 would be amended to incorporate VA's long-standing
interpretation that free space and facilities may only be provided to
the accredited representatives of recognized national organizations in
buildings owned or occupied by VA. Certain inappropriate cross
references erroneously included after Secs. 14.634 and 14.635 would be
deleted.
Paperwork Reduction Act of 1995
The Office of Management and Budget (OMB) has determined that
proposed 38 CFR 14.629(b) would contain collections of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Accordingly, under section 3507(d) of the Act, VA has submitted a copy
of this rulemaking action to OMB for its review of the collections of
information.
OMB assigns a control number for each collection of information it
approves. VA may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.
Comments on the proposed collections of information should be
submitted to the Office of Management and Budget, Attention: Desk
Officer for the Department of Veterans Affairs, Office of Information
and Regulatory Affairs, Washington, DC 20503, with copies mailed or
hand-delivered to: Director, Office of Regulations Management (02D),
Department of Veterans Affairs, 810 Vermont Ave., NW, Room 1154,
Washington, DC 20420. Comments should indicate that they are submitted
in response to ``RIN 2900-AI93.''
Title: Application for Accreditation as a Claims Agent.
Summary of collection of information: Under the provisions of
proposed Sec. 14.629(b), an individual who wishes to be accredited as a
claims agent to represent claimants before VA would be required to
submit a completed VA Form 21a to VA's Office of General Counsel
(022A), 810 Vermont Ave., NW, Washington, DC 20420. The information
requested on VA Form 21a is set forth at proposed Sec. 14.629(b).
Description of the need for information and proposed use of
information: This information is needed to determine whether an
individual would be eligible to be accredited as a claims agent to
represent claimants before VA.
Description of likely respondents: Individuals who wish to be
accredited as a claims agent to represent claimants before VA.
Estimated number of respondents: 20 per year.
Estimated frequency of responses: 1.
Estimated total annual reporting and recordkeeping burden: 15
hours.
Estimated annual burden per collection: 45 minutes.
The Department considers comments by the public on proposed
collections of information in--
Evaluating whether the proposed collections of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
Evaluating the accuracy of the Department's estimate of
the burden of the proposed collections of information, including the
validity of the methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collections of information on
those who are to respond, including responses through the use of
appropriate automated, electronic, mechanical, or other technological
collection techniques or other forms of information technology, e.g.,
permitting electronic submission of responses.
OMB is required to make a decision concerning the collection of
information contained in this proposed rule between 30 and 60 days
after publication of this document in the Federal Register. Therefore,
a comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. This does not affect the
deadline for the public to comment on the proposed regulations.
Regulatory Flexibility Act
The Secretary hereby certifies that this regulatory amendment 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. The adoption of the proposed changes would not cause
significant changes for those affected by the proposal. Therefore,
pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial
and final regulatory flexibility analysis requirements of sections 603
and 604.
List of Subjects in 38 CFR Part 14
Administrative practice and procedure, Claims, Courts, Foreign
relations, Government employees, Lawyers, Legal services, Organization
and functions (Government agencies), Reporting and recordkeeping
requirements, Surety bonds, Trusts and trustees, Veterans.
[[Page 59497]]
Approved: July 24, 1998.
Togo D. West, Jr.,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 14 is
proposed to be amended as follows:
PART 14--LEGAL SERVICES, GENERAL COUNSEL
1. The authority citation for part 14 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a),
5502, 5902-5905, unless otherwise noted.
2. Section 14.626 is revised to read as follows:
Sec. 14.626 Purpose.
The purpose of the regulation of representatives is to assure that
claimants for Department of Veterans Affairs benefits have responsible,
qualified representation in the preparation, presentation, and
prosecution of claims for veterans' benefits.
(Authority: 38 U.S.C. 501(a), 5902, 5903, 5904)
3. In Sec. 14.627, paragraphs (h), (i), (j), and (k) are
redesignated as paragraphs (k), (l), (m), and (n), respectively; and
paragraph (g) is revised and new paragraphs (h), (i), and (j) are
added; and an authority citation is added at the end of the section, to
read as follows:
Sec. 14.627 Definitions.
* * * * *
(g) Claimant means a person who has filed or intends to file a
written application for determination of entitlement to benefits
provided under title 38, United States Code, and implementing
directives.
(h) Complete claims service means representation of each claimant
requesting assistance, from the initiation of a claim until the
completion of any potential administrative appeal.
(i) Cross-accreditation means an accreditation based on the status
of a representative as an accredited and functioning representative of
another organization.
(j) Facilities means equipment and furnishings which promote the
efficient operation of an office and adjacent accommodations use of
which is needed in order to promote access to office space.
* * * * *
(Authority: 38 U.S.C. 501(a), 5902, 5903, 5904)
4. In Sec. 14.628, paragraph (e) is removed; paragraphs (f) and (g)
are redesignated as paragraphs (e) and (f), respectively; and
paragraphs (a)(2), (b), (d), and newly redesignated (e), and the
heading of paragraph (c) are revised to read as follows:
Sec. 14.628 Recognition of organizations.
* * * * *
(a) * * *
(2) It satisfies the following requirements:
(i) Requirements set forth in paragraph (d) of this section,
including information required to be submitted under that paragraph;
(ii) In the case of a membership organization, membership of 2,000
or more persons, as certified by the head of the organization;
(iii) Capability and resources to provide representation to a
sizable number of claimants;
(iv) Capability to represent claimants before the Board of
Veterans' Appeals in Washington, D.C.; and
(v) Geographic diversification, i.e., sizable number of chapters or
offices in more than one region of the country.
(b) State organization. An organization created and funded by a
State government for the purpose of serving the needs of veterans of
that State may be recognized. Only one such organization may be
recognized in each State.
(c) Regional or local organization. * * *
(d) Requirements for recognition. (1) In order to be recognized
under this section, an organization shall meet the following
requirements:
(i) Have as a primary purpose serving veterans. In establishing
that it meets this requirement, an organization requesting recognition
shall submit a statement outlining the purpose of the organization.
(ii) Demonstrate a substantial service commitment to veterans
either by showing a sizable organizational membership or by showing
performance of veterans' services to a sizable number of veterans. In
establishing that it meets this requirement, an organization requesting
recognition shall submit:
(A) The number of members and number of posts, chapters, or offices
and their addresses; and
(B) A copy of the articles of incorporation, constitution, charter,
and bylaws of the organization, as appropriate; and
(C) A description of the services performed or to be performed in
connection with programs administered by the Department of Veterans
Affairs, with an approximation of the number of veterans, survivors,
and dependents served or to be served by the organization in each type
of service designated; and
(D) A description of the type of services, if any, performed in
connection with other Federal and State programs which are designed to
assist former armed forces personnel and their dependents, with an
approximation of the number of veterans, survivors, and dependents
served by the organization under each program designated.
(iii) Commit a significant portion of its assets to veterans'
services and have adequate funding to properly perform those services.
In establishing that it meets this requirement, an organization
requesting recognition shall submit:
(A) A copy of the last financial statement of the organization
indicating the amount of funds allocated for conducting particular
veterans' services; and
(B) A statement indicating that use of the organization's funding
is not subject to limitations imposed under any Federal grant or law
which would prevent it from representing claimants before the
Department of Veterans Affairs.
(iv) Provide complete claims service to each veteran requesting
representation or give written notice of any limitation in its claims
service with advice concerning the availability of alternative sources
of claims service. Except as provided in paragraphs (d)(l)(iv)(A) and
(B) of this section, in establishing that it meets this requirement, an
organization requesting recognition shall submit evidence of capability
to represent claimants before Department of Veterans Affairs regional
offices and before the Board of Veterans' Appeals.
(A) If an organization does not intend to represent claimants
before the Board of Veterans' Appeals, the organization shall submit
evidence of an association or agreement with a recognized service
organization for the purpose of representation before the Board of
Veterans' Appeals, or the proposed method of informing claimants of the
limitations in service that can be provided, with advice concerning the
availability of alternative sources of claims service.
(B) If an organization does not intend to represent each claimant
requesting assistance, the organization shall submit a statement of its
policy concerning the selection of claimants and the proposed method of
informing claimants of this policy, with advice concerning the
availability of alternative sources of claims service.
(v) Take affirmative action, including training and monitoring of
accredited representatives, to ensure proper handling of claims. In
establishing that it meets this requirement, an
[[Page 59498]]
organization requesting recognition shall submit:
(A) A statement of the skills, training, and other qualifications
of current paid or volunteer staff personnel for handling veterans'
claims; and
(B) A plan for recruiting and training qualified claim
representatives, including the number of hours of formal classroom
instruction, the subjects to be taught, the period of on-the-job
training, a schedule or timetable for training, the projected number of
trainees for the first year, and the name(s) and qualifications of the
individual(s) primarily responsible for the training.
(2) In addition, the organization requesting recognition shall
supply:
(i) A statement that neither the organization nor its accredited
representatives will charge or accept a fee or gratuity for service to
a claimant and that the organization will not represent to the public
that Department of Veterans Affairs recognition of the organization is
for any purpose other than claimant representation; and
(ii) The names, titles, and addresses of officers and the
official(s) authorized to certify representatives.
(e) Recognition or denial. A notice of the determination on a
request for recognition will be sent to an organization within 90 days
of receipt of all information to be supplied.
(i) Only the Secretary is authorized to recognize organizations.
(ii) The General Counsel is authorized to deny recognition of
organizations. If the General Counsel denies recognition, the General
Counsel will provide the organization with a notice of that decision,
setting forth an explanation of the reasons for denial of recognition.
A denial of recognition may be appealed to the Secretary within 90 days
of mailing of notice of the denial.
* * * * *
5. In Sec. 14.629, paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii)
are removed; the section heading and introductory text; paragraphs (a)
introductory text, (a)(I), (a)(2)(ii) and the section authority
citation; and paragraphs (b) and (c) are revised, to read as follows:
Sec. 14.629 Requirements for accreditation of service organization
representatives; agents; and attorneys.
The Regional Counsel will resolve any question of current
qualifications of a service organization representative, agent, or
attorney. The claimant, the service organization representative, agent,
or attorney, or an official of the organization for which such person
acts, or a concerned Department of Veterans Affairs official may appeal
such determination to the General Counsel.
(a) Service Organization Representatives. A recognized organization
shall file with the Office of the General Counsel VA Form 21
(Application for Accreditation as Service Organization Representative)
for each person it desires accredited as a representative of that
organization. In recommending a person, the organization shall certify
that the designee:
(1) Is of good character and reputation and has demonstrated an
ability to represent claimants before the Department of Veterans
Affairs;
* * * * *
(2) * * *
(ii) Has successfully completed a course of training and an
examination which have been approved by a VA Regional Counsel with
jurisdiction for the State; and
* * * * *
(Authority: 38 U.S.C. 501(a), 5902)
(b) Agents. (1) An individual desiring accreditation as an agent
must establish that he or she is of good character and reputation and
is qualified to render assistance to claimants in the presentation of
their claim(s). An individual desiring accreditation as an agent must
file a completed application with the Office of the General Counsel on
VA Form 21a on which the applicant submits the following:
(i) His or her full name and business address;
(ii) Information concerning the applicant's military and civilian
employment history (including character of military discharge, if
applicable);
(iii) Information concerning representation provided by the
applicant before any department, agency, or bureau of the Federal
government.
(iv) Information concerning any criminal background of the
applicant;
(v) Information concerning whether the applicant has ever been
determined mentally incompetent or hospitalized as a result of a mental
disease or disability, or is currently under treatment for a mental
disease or disability;
(vi) Information concerning whether the applicant was previously
accredited as a representative of a veterans service organization and,
if so, whether that accreditation was terminated or suspended by or at
the request of that organization;
(vii) The names, addresses, and phone numbers of three character
references; and
(viii) Information relevant to whether or not the applicant has any
physical limitations which would interfere with the completion of a
comprehensive written examination administered under the supervision of
a VA regional counsel.
(2) Applicant's must achieve a score of 75 percent or more on a
written examination administered by VA as a prerequisite to
accreditation. No applicant shall be allowed to sit for the examination
more than twice in any 6 month period.
(Authority: 38 U.S.C. 501(a), 5904)
(c) Attorneys. (1) An attorney may represent a claimant upon
submission of authorization as described in Sec. 14.631(a) or (b).
(2) If the claimant consents in writing, an attorney associated or
affiliated with the claimant's attorney of record or employed by the
same legal services office as the attorney of record may assist in the
representation of the claimant.
(3) A legal intern, law student, or paralegal may not be
independently accredited to represent claimants under this paragraph. A
legal intern, law student, or certified paralegal may assist in the
preparation, presentation, or prosecution of a claim, under the direct
supervision of an attorney of record designated under Sec. 14.631(a) or
(b), if the claimant's written consent is furnished to the Department
of Veterans Affairs. Such consent must specifically state that
participation in all aspects of the claim by a legal intern, law
student, or paralegal furnishing written authorization from the
attorney of record is authorized. In addition, suitable authorization
for access to the claimant's records must be provided in order for such
an individual to participate. The supervising attorney must be present
at any hearing in which a legal intern, law student, or paralegal
participates. (See Sec. 20.606).
(4) Unless revoked by the claimant, consent provided under
paragraph (c)(2) or paragraph (c)(3) of this section shall remain
effective in the event the claimant's original attorney is replaced as
attorney of record by another member of the same law firm or an
attorney employed by the same legal services office.
(The information collection requirements in this section have been
approved by the Office of Management and Budget under control number
2900-0018)
(Authority: 38 U.S.C. 501(a), 5904)
6. Section 14.630 is revised to read as follows:
Sec. 14.630 Authorization for a particular claim.
(a) Any person may be authorized to prepare, present, and prosecute
one
[[Page 59499]]
claim. A proper power of attorney, and a statement signed by the person
and the claimant that no compensation will be charged or paid for the
services, shall be filed with the office where the claim is presented.
A signed writing, which may be in letter form, identifying the claimant
and the type of benefit or relief sought, specifically authorizing a
named individual to act as the claimant's representative, and further
authorizing direct access to records pertinent to the claim, will be
accepted as a power of attorney.
(b) Representation may be provided by an individual pursuant to
this section one time only. An exception to this limitation may be
granted by the General Counsel in unusual circumstances. Among the
factors which may be considered in determining whether an exception
will be granted are:
(1) The number of accredited representatives and claims agents
operating in the claimant's geographic region;
(2) Whether the claimant has unsuccessfully sought representation
from other sources;
(3) The nature and status of the claim; and
(4) Whether there exist unique circumstances which would render
alternative representation inadequate.
(Authority: 38 U.S.C. 501(a), 5903)
7. In Sec. 14.631, paragraphs (c)(3) and (e) are removed;
paragraphs (b), (c), and (d) are redesignated as paragraphs (e), (f),
and (g), respectively; and paragraph (a), introductory text, (a)(2),
and newly redesignated paragraphs (e), (f)(1), and (g) are revised; and
paragraphs (b), (c), and (d) are added, to read as follows:
Sec. 14.631 Powers of attorney.
(a) A power of attorney, executed on either Department of Veterans
Affairs Form 21-22 (Appointment of Veterans Service Organization as
Claimant's Representative) or Department of Veterans Affairs Form 22a
(Appointment of Attorney or Agent as Claimant's Representative), is
required to represent a claimant, except when representation is by an
attorney who complies with paragraph (b) of this section or when
representation by an individual is authorized under Sec. 14.630. The
power of attorney shall meet the following requirements:
* * * * *
(2) Shall be presented to the Department of Veterans Affairs
regional office that has jurisdiction over the claim for filing in the
claimant's claims folder.
(b) An attorney engaged by a client may state in writing on his or
her letterhead that the attorney is authorized to represent the
claimant. This evidence of authorization shall be equivalent to an
executed power of attorney and shall be presented to the Department of
Veterans Affairs regional office that has jurisdiction over the claim
for filing in the claimant's claims folder.
(c) The Secretary may, for any purpose, treat a power of attorney
naming as a claimant's representative an organization recognized under
Sec. 14.628, a particular office of such an organization, or an
individual representative of such an organization as an appointment of
the entire organization as the claimant's representative, unless the
claimant specifically indicates in the power of attorney a desire to
appoint only the individual representative. Such specific indication
must be made in the space on the power-of-attorney form for designation
of the representative and must use the word ``only'' with reference to
the individual representative.
(d) An organization, representative, agent, or attorney named in a
power of attorney executed pursuant to paragraph (a) of this section
may decline to accept appointment as a claimant's representative by so
notifying the claimant and the agency of original jurisdiction in
writing prior to taking any action on the claimant's behalf before the
Department of Veterans Affairs after execution of the power of attorney
by the claimant.
(e) Questions concerning the validity or effect of powers of
attorney shall be referred to the Regional Counsel of jurisdiction for
initial determination. This determination may be appealed to the
General Counsel.
(f)(1) Only one organization, representative, agent, or attorney
will be recognized at one time in the prosecution of a particular
claim. Except as provided in Sec. 14.629(c) and paragraph (f)(2) of
this section, all transactions concerning the claim will be conducted
exclusively with the recognized organization, representative, agent, or
attorney of record until notice of a change, if any, is received by the
appropriate office of the Department of Veterans Affairs.
* * * * *
(g)(1) A power of attorney may be revoked at any time, and an
attorney may be discharged at any time. Unless a claimant specifically
indicates otherwise, the receipt of a new power of attorney shall
constitute a revocation of an existing power of attorney.
(2) If an attorney submits a letter concerning representation under
paragraph (b) of this section regarding a particular claim, or a
claimant authorizes a person to provide representation in a particular
claim under Sec. 14.630, such specific authority shall constitute a
revocation of an existing general power of attorney filed under
paragraph (a) of this section only as it pertains to, and during the
pendency of, that particular claim. Following the final determination
of such claim, the general power of attorney shall remain in effect as
to any new or reopened claim.
(Authority: 38 U.S.C. 501(a), 5902, 5903, 5904)
8. Section 14.632 is revised to read as follows:
Sec. 14.632 Determination of qualifications.
If challenged, the qualifications of prospective representatives or
agents shall be verified by the Regional Counsel of jurisdiction. The
report of the Regional Counsel, if any, including any recommendation of
the Department of Veterans Affairs facility director, and the
application shall be transmitted to the General Counsel for final
action. If the designee is disapproved by the General Counsel, the
reasons will be stated and an opportunity will be given to submit
additional information. If the designee is approved, notification of
accreditation will be issued by the General Counsel or the General
Counsel's designee and will constitute authority to prepare, present,
and prosecute claims in all Department of Veterans Affairs
installations.
(Authority: 38 U.S.C. 501(a), 5902, 5904)
9. In Sec. 14.633, paragraph (e)(2)(ii) is removed; paragraph
(e)(2)(iii) is redesignated as new paragraph (e)(2)(ii); and paragraphs
(a), (b), (c) introductory text, (c)(3), (c)(4), (e) introductory text,
(e)(2)(i) and (g) are revised, to read as follows:
Sec. 14.633 Termination of accreditation of agents, attorneys, and
representatives.
(a)(1) Accreditation shall be canceled at the request of an agent,
attorney, representative, or certifying organization. If an
organization requests cancellation of the accreditation of a
representative it has certified, the organization shall notify the
representative of the request, unless the representative is deceased.
(2) Cross-accreditation shall be canceled when a representative
ceases to be accredited through the organization whose accreditation
created the basis for the cross-accreditation, unless information has
[[Page 59500]]
been provided to the General Counsel indicating that the representative
is independently qualified for accreditation by reason of membership or
employment with the organization through which he or she is cross-
accredited.
(b) Accreditation shall be canceled when the General Counsel finds
that an agent, attorney, or representative no longer meets a
requirement of Sec. 14.629.
(c) Accreditation shall be canceled when the General Counsel finds,
by clear and convincing evidence, one of the following on the part of
an agent, attorney, or representative:
* * * * *
(3) Demanding or accepting unlawful compensation or gratuity for
preparing, presenting, or prosecuting a claim or advising or consulting
a claimant concerning a claim;
(4) Any other unlawful, unprofessional, or unethical practice.
(Unlawful, unprofessional, or unethical practice shall include but not
be limited to the following--deceiving, misleading, or threatening a
claimant; neglecting to prosecute a claim for 6 months or more; failing
to furnish a reasonable response within 90 days of a request for
evidence by the Department of Veterans Affairs; failing to keep a
claimant informed of actions taken concerning his or her claim; or
willfully withholding an application for benefits.)
* * * * *
(e) As to cancellation of accreditation under paragraphs (b), (c),
or (d) of this section, upon receipt of information from any source
indicating failure to meet the requirements of Sec. 14.629, improper
conduct, or incompetence, the Regional Counsel of jurisdiction shall
initiate an inquiry into the matter. If the matter involves an
accredited representative of a recognized organization, this inquiry
shall include contact with the representative's organization. The
Regional Counsel of jurisdiction may request the assistance of another
Regional Counsel as to matters occurring within the latter's area of
jurisdiction.
* * * * *
(2) * * *
(i) Suspend accreditation immediately and notify the agent,
attorney, or representative, and in the case of a representative, the
representative's organization, of the suspension and of an intent to
cancel accreditation. The notice will also state the reason(s) for the
suspension and impending cancellation and inform the party of a right
to request a hearing on the matter or to submit additional evidence
within 10 working days of receipt of such notice. Such time may be
extended for a reasonable period upon showing of sufficient cause.
* * * * *
(g)(1) The General Counsel may cancel accreditation, continue the
existing suspension of accreditation for a specified period, dissolve
the existing suspension, and/or issue a formal reprimand. The decision
of the General Counsel is final. The effective date of cancellation or
suspension of accreditation is the date a final decision is rendered by
the General Counsel. The records of the case will be maintained in the
General Counsel's office for ten years from the date of a final
decision.
(2) A person whose accreditation has been canceled may apply for
reinstatement at any time following the expiration of two years from
the date of cancellation by filing a written request for reinstatement
with the General Counsel.
(i) In the case of an individual seeking reinstatement as a service
organization representative, a recognized organization must file on his
or her behalf VA Form 21 (Application for Accreditation as a Service
Organization Representative). Such an application will be evaluated
subject to the same criteria as are applicable to new applications for
accreditation as a service organization representative, except that
satisfactory proof of good character and reputation will be required in
addition to certification by the service organization.
(ii) An individual requesting reinstatement as a claims agent must
do so by submitting VA Form 21a ``Application for Accreditation as a
Claims Agent.'' Such an application will be evaluated subject to the
same criteria as are applicable to new applications for accreditation
as a claims agent.
(iii) An attorney requesting reinstatement must demonstrate, to the
satisfaction of the General Counsel, that he or she is a licensed
attorney in good standing, is of good character and reputation, is
sufficiently competent to handle VA cases, and will follow the statutes
and regulations applicable to the adjudication of claims and the
representation of claimants before VA.
(3) Reinstatement to full accreditation following cancellation is
subject to a two-year probationary period.
(i) During the probationary period, the accreditation of an
attorney, agent, or representative may be canceled upon a finding by a
Regional Counsel that a preponderance of evidence supports a
determination that the agent, attorney, or representative has engaged
in conduct described in paragraph (c)(1), (2), (3), or (4) of this
section.
(ii) In a proceeding to cancel accreditation during a probationary
period, procedures concerning notice, hearing, and submission of
additional evidence shall be as described in paragraphs (e)(2)(i) and
(f) of this section. The decision by the Regional Counsel is final. The
effective date for cancellation of accreditation shall be the date a
decision is issued by the Regional Counsel. The records of the case
will be forwarded to the General Counsel's office and will be
maintained in that office for ten years from the date of the decision.
* * * * *
Sec. 14.634 [Amended]
10. In Sec. 14.634, the cross references immediately following the
authority citation are removed.
11. In Sec. 14.635, the cross references immediately following the
authority citation are removed; the section introductory text and
paragraph (b), are revised to read as follows:
Sec. 14.635 Office space and facilities.
The Secretary may furnish office space and facilities, if
available, in buildings owned or occupied by the Department of Veterans
Affairs, for the use of paid full-time representatives of recognized
national organizations, and for employees of recognized State
organizations who are accredited to national organizations, for
purposes of assisting claimants in the preparation, presentation, and
prosecution of claims for Department of Veterans Affairs benefits.
* * * * *
(b) When in the judgment of the Director office space and
facilities previously granted could be better used by the Department of
Veterans Affairs, or would receive more effective use or serve more
claimants if allocated to another recognized national organization, the
Director may withdraw such space or reassign such space to another
organization. In the case of a facility under the control of the
Veterans Benefits Administration, the final decision on such matters
will be made by the Under Secretary for Benefits.
(Authority: 38 U.S.C. 501(a), 5902)
[FR Doc. 98-29490 Filed 11-3-98; 8:45 am]
BILLING CODE 8320-01-P
