2024-18345. Bar to Approval

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Department of Veterans Affairs

1. 38 CFR Part 21
2. RIN 2900-AQ99

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

The Department of Veterans Affairs (VA) is amending its regulations that govern VA's administration of educational assistance programs to implement a provision of the Veterans Benefits and Transition Act of 2018, which requires a State Approving Agency (SAA), or the Secretary of Veterans Affairs (when acting as the SAA), to disapprove programs of education provided by educational institutions that do not permit individuals using benefits under certain VA educational assistance programs to attend or participate in courses while awaiting payment from VA or that impose a penalty on an individual for failure to meet financial obligations due to a delayed VA payment. VA is also implementing a provision that allows educational institutions to require a claimant using educational benefits to submit certain documents and to pay certain fees or charges if VA delays payment and ultimately pays less than what an educational institution anticipated receiving.

DATES:

Effective date: This rule is effective September 18, 2024.

Applicability date: The provisions of this final rule shall apply to all terms that began on or after August 1, 2019.

FOR FURTHER INFORMATION CONTACT:

Thomas Alphonso, Assistant Director, Policy and Procedures, Education Service, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, [phone]. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION:

On February 27, 2023, VA published a proposed rule in the Federal Register at 88 FR 12293 to amend its regulations to require an SAA, or the Secretary of Veterans Affairs when acting as an SAA, to disapprove programs of education that do not permit individuals using benefits under either Chapter 31 or Chapter 33 to attend or participate in courses while awaiting payment from VA, and to implement other provisions of the Veterans Benefits and Transition Act of 2018, Public Law 115-407. The 60-day comment period ended on April 28, 2023.

VA received comments from five commenters in response to the proposed ( print page 66992) rule. While all commenters expressed some support for this rule, some requested additional information about its provisions or about implementation procedures. Further, some commenters stated that the rulemaking may have adverse effects on stakeholders. The comments are addressed below. In addition, we have included an applicability date in this final rule to conform to 38 U.S.C. 3679(e)(1) and to make clear that we have been applying, and will continue to apply, the statutory requirements reflected in this rule to all terms that began on or after August 1, 2019, and we have also included a technical edit in new 38 CFR 21.4269(d)(1)(i).

Changes to Section 103

One commenter requested that VA clarify changes it is making to section 103 of Public Law 115-407. As we stated in the proposed rule, section 103 added subsection (e) to 38 U.S.C. 3679, among other things, to require an SAA, or VA when acting as an SAA, to disapprove programs of education that do not permit individuals using Chapter 31 or Chapter 33 benefits to attend or participate in courses while awaiting payment from VA, a requirement not previously in the law. The commenter appears to be conflating public laws enacted by Congress and regulations promulgated by agencies such as VA. This rulemaking implements section 103 at 38 CFR 21.4269; VA is not making any changes to section 103 of Public Law 115-407 because VA has no authority to change laws.

VA makes no changes to the rule based on this comment.

Release of Financial Aid Funds

One commenter requested clarification regarding the release of a student's financial aid funds while the educational institution awaits tuition and fees payments from VA. Section 3679(e)(1)(B) provides that educational institutions are prohibited from employing policies requiring students to borrow additional funds to pay tuition and fees so the institutions are paid in advance of VA benefit payments while the institutions await VA payments. As the commenter noted, the law does not address educational institutions' obligations with regard to the release of financial aid funds. The use of Federal student financial aid is administered by the Department of Education (ED). Therefore, ED would be in the best position to answer questions concerning the use and release of financial aid funds.

VA makes no changes to the rule based on this comment.

Chapter 35 Beneficiary

One commenter requested additional clarification regarding the application of this rulemaking to Chapter 35 recipients. Section 3679(e), as added by section 103 of Public Law 115-407, requires schools to maintain certain policies applicable only to Chapter 31 and 33 beneficiaries. Effective November 30, 2021 (applicable to academic periods beginning August 1, 2022), Public Law 117-68 revised section 3679(e) to require schools to maintain the policies with regard to Chapter 35 beneficiaries as well. VA does not pay tuition and fees to schools under Chapter 35, but instead pays a statutory flat rate directly to Chapter 35 beneficiaries. 38 U.S.C. 3532. Consequently, schools do not need to certify Chapter 35 tuition and fee payments, and students do not need to demonstrate to the school entitlement to Chapter 35 benefits. Thus, regardless of the statutory revision, there are no school policies about restricting Chapter 35 program participation or imposing a penalty for delayed VA payment of Chapter 35 benefits that would be relevant to Chapter 35 beneficiaries. Nonetheless, in light of the statutory revision, we understand the commenter's confusion. Accordingly, to make it clear that the regulatory requirement would in theory apply to Chapter 35 beneficiaries, and for consistency with the authorizing statute, we are adding “chapter 35” in the final rule where applicable.

Enrollment Manager for Eligibility Verification

One commenter requested additional clarification regarding the definition of “certificate of eligibility,” specifically with regard to the newly released VA system Enrollment Manager (EM), a modernized platform used by school certifying officials (SCO), and its role in certifying student enrollments and verifying a students' eligibility for VA education benefits. As we explained in the proposed rule, we interpret section 3679(e)'s reference to “certificate of eligibility” as not referring to a specific VA document that could serve as eligibility documentation but, rather, as referring to any authoritative documentation provided by VA that serves to verify eligibility under Chapter 31 or 33. While EM allows SCOs to access a Chapter 33 student's entitlement information, such access is limited. A student's information is only accessible through EM if the student has allowed such access. Per 38 U.S.C. 3699A(b), a student may elect not to provide their entitlement information to a school through EM. Furthermore, the EM platform does not provide entitlement information for Chapter 31 student beneficiaries. Nonetheless, an SCO's use of EM to verify a student's remaining Chapter 33 benefits is an acceptable form of authoritative documentation for Chapter 33 beneficiaries who have not exercised their right under section 3699A(b) to block the sharing of their information with schools. Thus, we have clarified its acceptability in the final rule at § 21.4269(a)(1).

Administrative Burdens

One commenter described the many benefits of the new rule but expressed a number of concerns, including a potential increase in the administrative burden on both educational institutions and VA. The commenter stated that educational institutions may be required to change or update their policies and that VA would require more funding to ensure educational institutions' compliance with the rule. VA does not believe that there will be increased administrative burdens associated with this rule. SAAs are generally responsible for the approval or disapproval of education and training programs in their respective states. According to VA's internal compliance records, implementation of section 3679(e) has not created an additional administrative burden on SAAs. Since August 1, 2019, the date VA began implementing the statutory provision, no educational institution has been disapproved due to a violation of section 3679(e), and additional Federal funds have not been required to enforce this provision.

Also, while educational institutions are required to provide notice to enrolled and prospective students of any information required for certification of students' enrollment in addition to the information enumerated in their online or print catalogs, VA surveyed multiple educational institutions and found that all have an online catalog that can be easily updated with this required notice in approximately two hours, per data provided by these schools. Consequently, we believe that the provisions of this rule do not pose an undue administrative burden on educational institutions. And there would be no additional burden on VA because, as stated, SAAs, rather than VA, are generally responsible for the approval or disapproval of education and training programs.

Therefore, VA makes no changes to the rule based on this comment. ( print page 66993)

Program Options

Two commenters expressed concern that there could be a reduction in the number of educational program options available to Veterans because non-compliant educational institutions will be disapproved by SAAs. While we understand that if a school is disapproved, options for Veteran students will decrease, VA compliance records show that no educational institutions have been disapproved due to a violation of section 3679(e) since August 1, 2019, when VA began implementing this law. Moreover, there is unlikely to be an increase in disapprovals because schools that are approved to receive GI Bill benefits generally receive a percent of their revenue, which can be substantial, from VA payments, and therefore, they have an incentive to comply with the law and maintain their approval. Thus, we do not believe that the rule will result in fewer educational opportunities for Veterans.

Relatedly, one commenter stated that SAAs should not automatically disapprove programs that are non-compliant and suggested alternative enforcement mechanisms that would not limit educational opportunities. Although statutory authority requires disapproval of schools for failure to comply with the requirements of section 3679(e)(1), SAAs do not “automatically” disapprove non-compliant programs for violating section 3679(e)(1). If an SAA determines that an educational institution is not in compliance with this provision, the appropriate corrective action most often is suspension of the approval of a course for new enrollments, in accordance with 38 CFR 21.4259. Under § 21.4259(a), the SAA gives the educational institution 60 days to come into compliance. Additionally, section 3679(e)(3) gives the Secretary discretionary authority to waive the requirements of section 3679(e)(1). In this final rule, VA is requiring in § 21.4269(c) that an educational institution request a waiver within the same 60-day period, to ensure that an SAA does not withdraw approval when waiver may be warranted. Only if the educational institution does not come into compliance or request a waiver within 60 days will the SAA withdraw approval under section 3679. Further, if an SAA determines an educational institution's non-compliance is due to reasons outside of the educational institution's direct control ( e.g., action is required by the state legislature), the SAA may recommend that the educational institution request a waiver from VA. Because disapprovals are not automatic, as the commenter suggests, and because they serve as a disincentive to non-compliance limiting the number of disapprovals, they are unlikely to restrict Veterans' educational training options.

Accordingly, to ensure that educational institutions are aware that they must apply for a waiver within the 60-day period following a determination of non-compliance, VA is including this requirement in § 21.4269(c).

Restoration of Entitlement

One commenter expressed concern regarding the burden students enrolled in educational institutions that are disapproved due to non-compliance under section 3679(e) would have to bear and suggested restoring entitlement to educational benefits for these students. Section 3699 provides VA with authority to restore entitlement when an educational institution or program has closed or has been disapproved due to a change in law or VA regulations. Also, the Veterans Eligible to Transfer School (VETS) Credit Act, Public Law 117-297, which modified this provision, made it easier for students to apply for restoration of entitlement. Specifically, for any covered closure or disapproval on or after December 27, 2022, students do not need to enroll in a new school prior to applying for restoration of benefits. Hence, if a training institution has been disapproved due to a violation of section 3679(e), affected students may not lose their entitlement in certain circumstances.

VA makes no changes to the rule based on this comment.

Intent To Use Benefits

One commenter requested that VA change the term “request” to “notice” in § 21.4269(d)(1)(ii), because if a student submits a “request” to use their GI Bill benefits at a specific educational institution instead of a “notice,” the educational institution may deny the student's request. The commenter also requested that VA create a uniform form a student can use to inform an educational institution that they intend to use their GI Bill benefits. Section 3679(e)(4)(B) states that a student must “[s]ubmit a written request to use such entitlement” (emphasis added). We are parroting the statutory language in our regulation to ensure proper implementation and avoid misinterpretations. In any event, approved educational institutions lack the authority to deny an eligible student's request to use their VA benefits for a GI Bill approved program as long as the eligible student has remaining entitlement.

Further, we believe that requiring a student to use a form developed by VA would increase their administrative burden and could make it harder for them to obtain relief, i.e., schools could attempt to withhold benefits if a student does not submit the correct form. VA disagrees with the commenter and, in fact, believes it is beneficial for students to be permitted to use any type of notification to request use of entitlement, and not be limited to a specific Federal Government form when dealing directly with a non-government educational institution.

Accordingly, VA makes no changes to the rule based on this comment.

Expected VA Funding

One commenter asked that VA clarify why there would be a cost difference between the amount of funds expected by an educational institution from VA and the amount of funds the educational institution receives. The certificate of eligibility that VA issues as proof of a student's eligibility for educational benefits includes the number of months of entitlement but does not contain “an itemization of the amount of benefits allocated to a student for tuition and fees, housing, and supplies” as the commenter suggested. The amount of payment is dependent on the program of education a student is enrolled in, any statutory caps on certain VA benefits, and the student beneficiary's benefit level. Not all Post-9/11 GI Bill beneficiaries qualify at the 100% benefit level, which means that not all beneficiaries receive full payment. A school likely would not be able to calculate the VA payment amount for a beneficiary who is eligible for benefits at a percentage less than 100% and, thus, would not know in advance how much to expect to receive from VA on behalf of this beneficiary.

VA makes no changes to the rule based on this comment.

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 ( print page 66994) 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 www.regulations.gov.

Regulatory Flexibility Act

The Secretary of Veterans Affairs 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). Although this final rule includes provisions that entail costs to training institutions, such as the loss of late fees that institutions are prohibited from assessing when a student is unable to meet financial obligations to the institution, and the cost of publication of the requirements for submitting additional information needed for certifying enrollment, the provisions merely restate existing provisions of statute, and thus will have no additional impact on such small entities. Therefore, under 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

This final rule includes a provision constituting a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The new collection of information requires approval by the Office of Management and Budget (OMB) and assignment of an OMB Control Number. Accordingly, under 44 U.S.C. 3507(d), VA submitted a copy of this rulemaking action to OMB for review and approval. VA received no comments on the new collection of information.

An OMB Control Number of 2900-0925 has been assigned to the new collection of information associated with this final rule. Assignment of this OMB control number is not an approval to conduct or sponsor an information collection under the Paperwork Reduction Act of 1995. In accordance with 5 CFR 1320, the new collection of information associated with this rulemaking is not approved by OMB at this time. OMB's approval of the new collection of information will occur within 30 days after the final rulemaking publishes. If OMB does not approve the new collection of information as requested, VA will immediately remove the provision containing a new collection of information or take such other action as is directed by OMB.

The new collection of information associated with this rulemaking contained in 38 CFR 21.4269 is described immediately following this paragraph, under its respective title.

Title: Publishing of Requirement to Submit Additional Information Necessary for Certification of Enrollment.

OMB Control No: 2900-0925.

CFR Provision:38 CFR 21.4269(d)(1)(iii).

• Summary of collection of information: This new collection of information in § 21.4269(d)(1)(iii) will require educational institutions to give notice to enrolled and potential students of any information in addition to the information already enumerated in their catalogs that the educational institution requires for certification of claimants' enrollment. The educational institutions will be required to publish any additional information, after it is approved by the SAA, in their online or print catalogs.
• Description of need for information and proposed use of information: The information collected will be used by VA to facilitate VA's oversight of educational institutions and to ensure their compliance with § 21.4269.
• Description of likely respondents: Educational institutions.
• Estimated total number of respondents: 16,084 educational institutions.
• Estimated frequency of responses: Once.
• Estimated average burden per response: Two hours or less.
• Estimated total annual reporting and recordkeeping burden: VA estimates the total annual reporting and recordkeeping burden to be 32,168 burden hours. Using the annual number of responses, VA estimates a total annual reporting and recordkeeping burden of 32,168 hours for respondents.
• Estimated cost to respondents per year: VA estimates the annual cost to respondents to be $901,025.68 (16,084 respondents per year × 2 hours per application × $28.01*).

* To estimate the total information collection burden cost, VA used the Bureau of Labor Statistics (BLS) median hourly wage for “all occupations” of $28.01 per hour. This information is available at: https://www.bls.gov/​oes/​current/​oes_​nat.htm#13-0000.

Assistance Listing

The Assistance Listing numbers and titles for the programs affected by this document are: 64.027, Post-9/11 Veterans Educational Assistance; 64.028, Post-9/11 Veterans Educational Assistance; 64.032, Montgomery GI Bill Selected Reserve; Reserve Educational Assistance Program; 64.117, Survivors and Dependents Educational Assistance; 64.120, Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-Volunteer Force Educational Assistance.

Severability

The purpose of this section is to clarify the agency's intent with respect to the severability of provisions of this final rule. Each provision that the agency is promulgating is capable of operating independently. If any provision of this rule is determined by judicial review or operation of law to be invalid, that partial invalidation will not render the remainder of this rule invalid. Likewise, if the application of any portion of this rule to a particular circumstance is determined to be invalid, the agency intends that the rule remain applicable to all other circumstances.

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 21

• Administrative practice and procedure
• Armed forces
• Claims
• Colleges and universities
• Education
• Employment
• Reporting and recordkeeping requirements
• Schools,

Signing Authority

Denis McDonough, Secretary of Veterans Affairs, approved this document on August 12, 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,

Regulations Development Coordinator, Office of Regulation Policy & Management, Office of General Counsel, Department of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 21 as set forth below:

PART 21—VOCATIONAL REHABILITATION AND EDUCATION

Subpart D—Administration of Educational Assistance Programs

1. The authority citation for part 21, subpart D continues to read as follows:

Authority: 10 U.S.C. 2141 note, ch. 1606; 38 U.S.C. 501(a), chs. 30, 32, 33, 34, 35, 36, and as noted in specific sections

2. Add § 21.4269 to read as follows:

§ 21.4269

Bar to approval.

(a) Beginning on August 1, 2019, a State approving agency, or the Secretary when acting in the role of the State approving agency, shall disapprove a program of education provided by an educational institution that has in effect a policy that is inconsistent with any of the following:

(1) A policy that permits any covered individual to attend or participate in the program of education during the period beginning on the date on which the individual provides to the educational institution any verifiable and authoritative VA document demonstrating entitlement to educational assistance under 38 U.S.C. chapter 31, chapter 33, or chapter 35 (such as a decision or notice of decision on entitlement, letter from VA, updated award letter from VA, or print-out of eligibility (statement of benefits) from a web-based VA system or beneficiary portal to include verification through VA's secure information technology system in accordance with 38 U.S.C. 3699A if an individual has provided authorization to obtain remaining entitlement information), and ending on the earlier of the following dates:

(i) The date on which payment from VA is made to the institution.

(ii) The date that is 90 days after the date on which the educational institution certifies tuition and fees following receipt of the verifiable and authoritative VA document proving entitlement to educational assistance under 38 U.S.C. chapter 31, chapter 33, or chapter 35.

(2) A policy that ensures an educational institution will not impose any penalty, including the assessment of late fees, the denial of access to classes, libraries, or other institutional facilities, or the requirement that a covered individual borrow additional funds, on any covered individual because of the individual's inability to meet his or her financial obligations to the institution due to the delayed disbursement of a payment to be provided by VA under 38 U.S.C. chapter 31, chapter 33, or chapter 35.

(b) For purposes of this section, a covered individual is any individual who is entitled to educational assistance under 38 U.S.C. chapter 31, chapter 33, or chapter 35.

(c) The Secretary (or designee) may waive such requirements of paragraph (a) of this section as the Secretary (or designee) considers appropriate. An educational institution must apply for a waiver within 60 days of the SAA determination that an educational institution is not in compliance with paragraph (a).

(d) It shall not be inconsistent with a policy described in paragraph (a) of this section for an educational institution:

(1) To require a covered individual to take the following additional actions:

(i) Submit any verifiable and authoritative VA document to prove entitlement to educational assistance under 38 U.S.C. chapter 31, chapter 33, or chapter 35 (as described in paragraph (a)(1)) not later than the first day of a program of education for which the individual has indicated the individual wishes to use the individual's entitlement to educational assistance.

(ii) Submit a written request to use such entitlement.

(iii) Provide additional information necessary to the proper certification of enrollment by the educational institution. If an educational institution intends to require additional information necessary for proper certification of enrollment, any such requirement must be included in the school's published catalog and also must be approved by the State approving agency, or the Secretary when acting in the role of the State approving agency, as being necessary for proper certification and not overly burdensome to submit.

(2) In a case in which a covered individual is unable to meet a financial obligation to an educational institution due to the delayed disbursement of a payment to be provided by VA under 38 U.S.C. chapter 31, chapter 33, or chapter 35 and the amount of such disbursement is less than the educational institution anticipated, to require additional payment of or impose a fee for the amount that is the difference between the amount of the financial obligation and the amount of the disbursement.

(i) Such additional payment may include the amount of a financial obligation associated with charges for which VA does not pay benefits ( e.g., room and board, any portion of tuition for which a claimant does not qualify).

(ii) An educational institution may utilize its standard debt collection policies for these amounts, including the assessment of late fees.

(Authority: 38 U.S.C. 3679(e))