AR33 Final Rule Legal Services for Homeless Veterans and Veterans At Risk for Homelessness Grant Program

Legal Services for Homeless Veterans and Veterans At-Risk for Homelessness Grant Program

DATES:

This rule is effective December 13, 2024.

SUPPLEMENTARY INFORMATION:

In an IFR published in the Federal Register (FR) on June 1, 2022, (87 FR 33025), VA established, in new part 79 of title 38, Code of Federal Regulations (CFR), the Legal Services for Homeless Veterans and Veterans At-Risk for Homelessness Grant Program, required by section 2022A of title 38, United States Code (U.S.C.). VA provided a 60-day comment period, which ended on August 1, 2022. VA received 12 comments, which are discussed in further detail below. Based on the comments, VA is making changes to part 79, as explained in more detail below.

Comments

Definition of Veteran

Two commenters suggested VA revise its definition of veteran in 38 CFR 79.5, which adopts the definition of veteran in 38 U.S.C. 101(2). Section 101(2) defines veteran as a person who served in the active military, naval, air, or space service, and who was discharged or released therefrom under conditions other than dishonorable. These commenters were concerned that the definition is too limited and would exclude former servicemembers who need or would benefit from the legal assistance provided under this grant program and who this program was designed to serve (that is, as described by the commenters, those who need assistance with discharge upgrades).

Instead of using the definition of veteran in 38 U.S.C. 101, one of these commenters recommended VA use the definition of veteran in 38 U.S.C. 2002(b) (which is applicable to VA benefits for homeless veterans) or in the alternative, use a more inclusive definition. The definition of veteran in 38 U.S.C. 2002(b) is used for purposes of sections 2011, 2012, 2013, 2044, 2061 of title 38, as well as 42 U.S.C. 1437f(o)(19)(D). Sections 2011, 2012, 2013, 2044, and 2061 apply to VA benefits for homeless veterans such as the supportive services for veteran families grant program and the homeless providers grant and per diem program. Section 1437(o)(19)(D) of 42 U.S.C. authorizes rental vouchers for certain eligible homeless veterans.

The definition of veteran in 38 U.S.C. 2002 defines veteran to mean a person who served in the active military, naval, air, or space service, regardless of length of service, and who was discharged or released therefrom, and excludes a person who received a dishonorable discharge from the Armed Forces; or was discharged or dismissed from the Armed Forces by reason of the sentence of a general court-martial.

We acknowledge that the current definition of veteran in 38 CFR 79.5 limits those individuals who are eligible for legal services under the grant program, including legal services relating to requests to upgrade the characterization of a discharge. However, we are unable to revise the definition as this commenter recommends ( e.g., by using the 38 U.S.C. 2002(b) definition of veteran or a more inclusive definition). Section 2022A does not define veteran. Title 38 has already provided a definition for veteran in section 101(2). Without indicating an alternate definition for the term in statute, Congress's use of "veteran" in section 2022A can only lead VA to surmise that it intended the legal services enumerated in section 2022A to be provided to veterans who meet the requirements of section 101(2), as well as other criteria for being homeless or at risk for homelessness. Thus, we must use the definition of veteran in section 101 rather than the definition in section 2002(b) or a more inclusive definition.

Furthermore, section 2002(b) explicitly limits its applicability to specific sections in chapter 20 (for example, sections 2011, 2012, 2013, 2044, and 2061) and does not include section 2022A. Given that Congress remained silent on the subject, "veteran" in section 2022A must be read as using the available definition in section 101(2). Short of future statutory change, the definition of veteran in 38 U.S.C. 2002(b) does not apply to this grant program authorized by 2022A.

We make no changes to the definition of veteran based on this comment.

The other commenter recommended that VA define veteran in the same way as the U.S. Interagency Council on Homelessness, which defines veteran as all individuals who served in the military regardless of the length of service or their discharge status.

In defining veteran, section 101(2) refers to a person who was discharged or released therefrom under conditions other than dishonorable. This excludes those who received a dishonorable discharge from the Armed Forces or who have been found by VA to have been discharged under dishonorable conditions. Thus, those individuals would be ineligible to receive services provided through this legal services grant program since we are applying the definition of veteran under section 101(2). Since we must use that definition for purposes of this grant program for the reasons previously explained, we are unable to remove the restrictions on discharge status in the section 101(2) definition.

We are also unable to remove the length of service requirements as those set forth in 38 U.S.C. 5303A apply to this grant program. These requirements apply to the administration of VA benefits and services unless otherwise explicitly made inapplicable. See 38 U.S.C. 5303A(a) ("Notwithstanding any other provision of law, any requirements for eligibility for or entitlement to any benefit under this title or any other law administered by the Secretary that are based on the length of active duty served by a person who initially enters such service after September 7, 1980, shall be exclusively as prescribed in this title.") and 5303A(b)(3). Section 2022A is not excluded from the length of service requirements in section 5303A(b)(3). Moreover, section 2022A did not explicitly exclude eligible veterans from these length of service requirements. Thus, section 2022A must be read as requiring the length of service requirements described in 38 U.S.C. 5303A. We make no changes to the definition of veteran based on this comment.

Eligible Veterans and 38 CFR 79.55

One commenter stated that grantees should be tasked with establishing their own criteria for eligibility and the methods used to confirm and document eligibility under § 79.15. This commenter opined that grantees should establish their own criteria for determining eligibility and should only have to determine it at the time the veteran engages with them, particularly because requiring grantees to recertify eligibility after intake may cause ethical issues for the grantee and result in frustration, hardship, and damages to the veteran being served by that grantee. This same commenter also suggested that if the veteran is eligible at the time of intake, the legal services should continue until the legal issue is completed.

VA requires grantees verify and document a veteran's eligibility for legal services prior to providing legal services. See § 79.55(a)(1). VA also requires that services continue to be provided through completion of the legal services so long as the participant continues to be eligible and if, at any point, the grantee finds the participant is ineligible, they must document such ineligibility and provide the individual with information on other available programs/resources or provide a referral. See § 79.55(a)(2) and (3). Because the statutory authority, 38 U.S.C. 2022A, is clear about eligibility for legal services, as further set forth in 38 CFR 79.15, VA does not believe it would be appropriate for grantees to establish their own eligibility criteria, which could vary and lack consistency among grantees. This could lead to grantees providing services to veterans who are not actually eligible pursuant to VA's authority and therefore would place an undue burden on VA to conduct an independent determination of each grantee's eligibility criteria to ensure it is consistent and does not exceed the bounds of VA's authority. In addition, this could lead to disparate treatment of veterans as grantees could otherwise set more restrictive or broad criteria than others. In such instances, eligibility for legal services would depend on the organization from which veterans sought services. To ensure compliance with the law and that veterans are treated the same for purposes of eligibility for legal services provided under this grant program, VA believes it is appropriate to have the same eligibility criteria for all veterans rather than have grantees establish their own.

For these same reasons, VA will provide grantees with various methods that can be used to determine eligibility. Such information will be included in a program guide that will be provided to grantees. The program guide is the appropriate location for such information rather than regulation since the methods that may be used to determine eligibility are subject to change.

While we expect grantees to determine eligibility based on the criteria in § 79.15 prior to the provision of legal services, we do not expect grantees to verify or confirm eligibility on a frequent, on-going basis. However, if a grantee becomes aware that an individual was never eligible due to, for example, a military discharge as a result of general court-martial, but by mistake was initially determined eligible, we expect the grantee to take appropriate action by ending services and making appropriate referrals to other organizations that are able to assist the individual with legal services, in compliance with § 79.55(a)(3). It was and is not our intent to have grantees take similar actions if an individual is initially found to be eligible for services but due to improvement in their housing situation, they may no longer be eligible under § 79.15(a)(1). Because these individuals may continue to be at risk for homelessness under § 79.15(a)(2), we want grantees to continue to provide legal services to these individuals. For all participants, we expect legal services to continue to be provided through completion or as the need for such services comes to an end, so long as the individuals remain eligible for such services. See § 79.55(a)(2).

We do not make changes to the regulations based on these comments. However, this information will be included in the grant program guide and as part of technical assistance.

Two commenters raised concerns about the definition of at risk for homelessness included in § 79.15. The definition of at risk for homelessness means an individual who does not have sufficient resources or support networks, e.g., family, friends, faith-based or other social networks, immediately available to prevent them from moving to an emergency shelter or another place described in paragraph (1) of the definition of "homeless" in 24 CFR 576.2 and meets one or more of nine conditions set forth in 38 CFR 79.15(b)(1) through (9).

It was suggested by both commenters that VA remove the requirement in § 79.15(b)(3) that the veteran be notified in writing that their right to occupy their current housing or living situation will be terminated within 21 days after the application for assistance or add a period longer than 21 days. The commenter stated that this requirement causes undue confusion, added burden on staff, and that housing statutes and requirements often require landlords provide more than 21 days' notice.

As an initial matter, the language in § 79.15(b)(3) is not a requirement that all veterans must meet to be determined at risk for homelessness. Instead, it is one of nine conditions, of which a veteran must meet only one. Thus, a veteran can meet the definition of at risk for homelessness if they meet one of those other eight conditions. We believe that if a veteran did not meet § 79.15(b)(3) because they live in a place where more than 21 days' notice is required to terminate their right to occupy their current housing or living situation and they find themselves in such situation, they may very likely meet one of the other eight conditions. As we have largely adopted the definition of at risk for homelessness from the Department of Housing and Urban Development's (HUD) definition of at risk for homelessness, including this specific requirement in § 79.15(b)(3), we make no changes based on this comment as we defer to HUD's definition given they are the leading Federal agency on this subject matter. We acknowledge one difference in that 24 CFR 576.2 does include an income limitation. We chose to remove that limitation in 38 CFR 79.15(b) due to situations where a veteran earns an income beyond the limitation in 24 CFR 576.2(i) but is still unable to maintain housing because of a high cost of living where they reside. See 87 FR 33028. We still note that this definition is consistent with other VA grant programs that provide services to veterans at risk for homelessness. Thus, to be consistent with both HUD and VA's existing grant programs, we make no changes based on this comment. However, if we find that this criterion is a barrier for eligibility for services under this grant program, we will consider revising the criterion and make any such revisions in a future rulemaking.

One of the commenters raised concerns about 38 CFR 79.15(b)(5) which excludes veterans residing in hotels or motels paid for by non-profit organizations and government entities based on low income. This language in paragraph (b)(5) is consistent with HUD and VA's other grant programs focused on veterans at risk for homelessness. Additionally, the definition of at risk for homelessness provides nine separate ways to meet the definition, which is fairly broad. However, similar to the discussion on paragraph (b)(3) above, if we find that this criterion is a barrier for eligibility for services under this grant program, we will consider revising the criterion and make any such revisions in a future rulemaking.

One commenter stated that it should be sufficient for veterans to only meet one of the criteria in § 79.15(b)(1) through (9), rather than also having to meet the requirement in § 79.15(b) that an individual does not have sufficient resources or support networks (for example, family, friends, faith-based or other social networks) immediately available to prevent them from moving to an emergency shelter or another place described in paragraph (1) of the definition of "homeless" in 24 CFR 576.2. This commenter suggested removing the latter criterion based on the assertion that it is subjective, hard to apply, and requires assessment of a veteran's resources. They also stated that it is irrelevant to a veteran's ability to access legal services or their need for legal help, as availability of resources does not mean they will have support.

As discussed above, this language was included to be consistent with HUD and VA's other grant programs focused on veterans at risk for homelessness. We acknowledge that this criterion is subjective, which is beneficial to veterans as it allows grantees to look at the totality of a veteran's circumstances. However, we disagree that this criterion is hard to apply and requires assessment of a veteran's resources. Instead, this criterion requires a screening, rather than an in-depth analysis or assessment of the veteran's resources and finances. To assist in determining whether a veteran is at risk for homelessness for purposes of this grant program, we will make available to grantees a short screening tool. This tool will be similar to tools that have been utilized effectively by other VA homeless programs, but it will be modified for purposes of the definition of at risk for homelessness in part 79. As this criterion is consistently used and applied in other VA and HUD programs, we do not believe it is or should be hard to apply, especially as an in-depth analysis is not required and the determination on whether this criterion is met is a judgment call made by the grantee.

We acknowledge and agree with the commenter that potential availability of resources to a veteran does not equate to support. However, we note that the requirement is only for the veteran to lack either "sufficient resources or support networks" to actually prevent homelessness or moving to an emergency shelter; the veteran need not lack both of those things. Even if a veteran's family member may have resources or support, this criterion would not necessarily presume that the veteran has the ability to access such resources or support. To continue to be consistent with HUD and VA's other programs, we do not make changes to this definition based on this comment.

Another commenter recommended that services provided under this grant program be available to deported veterans with no income limitations, as they noted there are veterans and servicemembers who are not citizens, are at risk for homelessness, and may be deported.

As an initial matter, we do not impose any income limitations to be eligible for legal services provided under this grant program. As described in § 79.15, an individual is eligible for services under part 79 if they are a homeless veteran (defined consistent with 42 U.S.C. 11302) or a veteran at risk for homelessness (defined consistent with 24 CFR 576.2). Section 11302 of 42 U.S.C. does not include any income limitations in its definition of homeless. As noted above, while 24 CFR 576.2 does include an income limitation, we removed that limitation in 38 CFR 79.15(b) because VA recognized that there may be situations where a veteran earns an income beyond the limitation in 24 CFR 576.2(i) but is still unable to maintain housing because of a high cost of living where they reside. See 87 FR 33028. Because part 79 does not include any income limitations for purposes of eligibility for legal services, we do not make any changes based on this part of the comment.

As written, part 79 does not prohibit grantees from providing legal services, including immigration-specific legal services, to deported veterans or those veterans without U.S. citizenship who live in the United States who meet the eligibility criteria in § 79.15. Part 79 also does not require grantees to provide immigration-specific legal services, to deported veterans or those veterans without U.S. citizenship who meet the eligibility criteria in § 79.15. We understand that relatively few potential grantees may have the capacity and experience to serve such individuals effectively in those circumstances. However, if a grantee is able to do so effectively and in a way that meets all other requirements imposed by this grant program, they would be permitted to do so. Thus, because the provision of legal services, including immigration-specific legal services, to deported veterans or those veterans without U.S. citizenship meeting the eligibility criteria in § 79.15 would be at the discretion of the grantee, we would not regulate this and do not make any changes to part 79 based on this comment.

Eligible Entities

One commenter inquired about whether two non-profits can partner for this grant program. We assume this commenter is inquiring as to whether two organizations can submit a joint grant application for this grant program. Consistent with how VA administers other grant programs, two organizations will not be able to submit a joint application for a legal services grant. However, an organization that is an eligible entity, as defined in part 79, and is awarded a grant may be the primary grantee and may work directly with a subcontractor to administer the grant. As part of the application process, grantees are expected to identify any subcontractors in their application. See 38 CFR 79.25(a)(7). While we do not allow a joint application for two primary grantees, we do not find it necessary to update the regulations in part 79 to clarify this point, especially as we have not done so in any of our other grant program regulations. This clarification will be further provided through technical assistance and in Frequently Asked Questions.

Legal Services

One commenter recommended VA remove the word "defense" from criminal defense in the list of allowable legal services contained in § 79.20. This commenter stated that use of defense may be misleading to non-criminal legal problems that provide legal services to address the removal of barriers to homelessness associated with interacting with the criminal justice system.

The authorizing statute, 38 U.S.C. 2022A(d)(4), includes certain criminal defense legal services as part of this grant program. Consistent with section 2022A(d)(4), 38 CFR 79.20(d) states that legal services include those relating to criminal defense, including defense in matters symptomatic of homelessness, such as outstanding warrants, fines, driver's license revocation, and citations. To reduce recidivism and facilitate the overcoming of reentry obstacles in employment or housing, covered legal services relating to criminal defense also include legal assistance with requests to expunge or seal a criminal record.

We are unclear what the commenter is referring to with regards to non-criminal legal problems that provide legal services to address the removal of barriers to homelessness associated with interacting with the criminal justice system. We included in our definition of legal services defense in matters symptomatic of homelessness, such as outstanding warrants, fines, driver's license revocation, and citations. We believe this covers those instances in which a veteran may be interacting with the criminal justice system but are considered non-criminal legal problems. However, based on this comment, we revise this language to include the word "assistance" to better clarify that these legal services are not restricted to only defense. We believe that this change is a logical outgrowth of the IFR and does not warrant an additional comment period because the change is directly related to a concern presented by a commenter and is otherwise within the scope of the IFR.

We would not remove "defense" as suggested by the commenter since that would be inconsistent with our statutory authority for this program. Because we are making additional changes to § 79.20(d) as subsequently explained, all of the revisions to § 79.20(d), including the word "assistance", are described in one consolidated revision further below.

This same commenter also recommended VA clarify that criminal defense includes the resolution of criminal matters symptomatic of homelessness either at any time during a criminal proceeding or post-adjudication and sentencing.

We understand the commenter's concern and note that § 79.20(d) includes defense in matters symptomatic of homelessness, such as outstanding warrants, fines, and driver's license revocation, to reduce recidivism and facilitate the overcoming of reentry obstacles in employment or housing. However, similar to the changes discussed directly above, based on this comment, we revise § 79.20(d) to indicate that resolution of matters symptomatic of homelessness is included as part of the legal services that may be provided under this grant program. We believe revising the language to include resolution is appropriate, would better clarify that these legal services are not restricted to only defense, and would cover resolution of criminal matters symptomatic of homelessness either at any time during a criminal proceeding or post-adjudication and sentencing. We believe that this change is a logical outgrowth of the IFR and does not warrant an additional comment period because the change is directly related to a concern presented by a commenter and is otherwise within the scope of the IFR.

Because § 79.20(d) places no limits on when in criminal proceedings legal assistance may be provided, we decline to add language to clarify that legal services under paragraph (d) may be provided at any time during a criminal proceeding or post-adjudication and sentencing.

Based on the previously described changes to § 79.20(d) to include the word "assistance" and those described in a preceding paragraph, § 79.20(d) is revised to state the following: Legal services relating to criminal defense, including defense and resolution of, and assistance with, matters symptomatic of homelessness, such as outstanding warrants, fines, driver's license revocation, and citations. To reduce recidivism and facilitate the overcoming of reentry obstacles in employment or housing, covered legal services relating to criminal defense also include legal assistance with requests to expunge or seal a criminal record.

We make no further changes based on these comments.

Another commenter suggested VA expand the discharge upgrade legal services under § 79.20 to include those under 10 U.S.C. 1552. This commenter opined that limiting grantees to only serve those seeking discharges under 10 U.S.C. 1553 seems arbitrary, unfairly favors recent-era veterans, especially as it would require grantees to turn away clients who separated over 15 years ago and would limit a grantee's ability to help appeal wrongful denials.

As an initial matter, we note that the authorizing statute for this grant program includes as legal services those relating to requests to upgrade the characterization of a discharge or dismissal of a former member of the Armed Forces under 10 U.S.C. 1553. Such requests are reviewed by a Discharge Review Board (DRB). Only former members of the Armed Services who were discharged or dismissed within the prior 15 years and are appealing their discharge or dismissal (other than one given by sentence of a General Court Martial) are eligible to submit their request for an upgrade to a DRB. All other requests for corrections of military records or for an upgrade to the characterization of a discharge or dismissal of a former member of the Armed Forces who was discharged or dismissed more than 15 years prior may be reviewed and corrected pursuant to 10 U.S.C. 1552. Section 1552 allows former members of the Armed Forces to apply to the Board for Correction of Military Records (BCMR) for a correction of the former member's military record when it is considered necessary to correct an error or remove an injustice. BCMRs can upgrade any character of discharge or dismissal; change any reason for discharge or dismissal, re-enlistment codes, the date of discharge or dismissal; remove mistakes in a former member's record; and add or remove a note of medical retirement.

While Congress did not explicitly include 10 U.S.C. 1552 in the list of legal services authorized under 38 U.S.C. 2022A, based on the comment above, we believe it is appropriate to include as legal services those relating to requests to correct the military record of a former member of the Armed Forces under 10 U.S.C. 1552. We have the authority to do so pursuant to our discretionary authority in 38 U.S.C. 2022A(d)(6), which explains that grants under this section shall be used to provide homeless veterans and veterans at risk for homelessness such other legal services as the Secretary determines appropriate. We use that authority to add new paragraph (f)(6) to § 79.20 to include legal services relating to requests for corrections to military records of a former member of the Armed Forces under 10 U.S.C. 1552. We believe this is an appropriate legal service to add under this grant program due to the language in 38 U.S.C. 1553 that limits requests for upgrades to those who have been discharged or dismissed within the prior 15 years. We believe it is appropriate to add legal assistance with section 1552 requests so that those former members who were discharged or dismissed more than 15 years prior are able to receive legal assistance with their correction of military records or requests for upgrades, similar to those who were discharged or dismissed within the prior 15 years. This would allow grantees to assist eligible veterans with requests submitted to DRBs and BCMRs.

We believe that this change is a logical outgrowth of the IFR and does not warrant an additional comment period because the change is directly related to a concern presented by a commenter and is otherwise within the scope of the IFR. Further, the IFR provided, in 38 CFR 79.20, that covered legal services would include "[o]ther covered legal services as determined appropriate by the Secretary," and this change merely reflects the exercise of that authority expressly stated in the IFR.

We would not limit assistance with 10 U.S.C. 1552 requests to only requests for upgrades since the statute is broader than requests for upgrades. Former members of the Armed Forces, regardless of when they were discharged or dismissed, are able to request corrections to other military records under section 1552, and we would allow grantees to use funds to provide assistance with such requests. We make no further changes based on this comment.

Applications (38 CFR 79.25) and Scoring Criteria (38 CFR 79.35)

Another commenter asked what documentation is needed as proof of previous services rendered. We assume this commenter is referring to the language in the sections of part 79 concerning applications for legal services grants (§ 79.25) and scoring criteria for legal services grant applicants (§ 79.35). Section 79.25(a)(6) explains that a complete legal services grant application package includes documentation describing the experience of the applicant and any identified subcontractors in providing legal services to eligible veterans. Section 79.35(a)(2)(ii) explains that as part of scoring applications, VA will use criteria including whether the applicant, and any identified subcontractors, have experience providing legal services, including providing such services to veterans, or individuals who are homeless, at risk for homelessness or who have very low income.

As part of the application process, we do not require specific documentation to be provided regarding prior experience. However, as part of the application, applicants can provide information and documents to support their prior experience, which we will review when scoring applications. For example, in the application form, we included a section in which applicants can explain their prior experience. Additionally, we will review such documents as memoranda of understanding, memoranda of agreement, staff resumes, position descriptions, and any other documents the applicant submits as part of their application.

Since we do not require any specific documentation to support an applicant's prior experience, we do not revise these regulations.

General Operation Requirements

Another commenter recommended VA eliminate the requirement in § 79.55(d)(1) that grantees disclose VA as a funding source, as it could cause confusion and create a barrier to legal services. While we understand the commenter's concerns, this is standard practice for our grant programs (and statutorily required for some of our grant programs), and we believe that disclosing this is important information that eligible veterans should be aware of, particularly as this can positively impact their relationship and interactions with VA. Thus, we do not make any changes based on this comment.

Other Comments

One commenter recommended that the NOFO state that a pass-through entity is an eligible entity. This same commenter also recommended VA have a central prime awardee and suggested VA provide a higher cap (more than $150k) on the amount of funds that can be awarded to those entities applying as pass-through entities.

While the comment concerns the NOFO, and thus is considered outside the scope of this rulemaking, we note that the NOFO will address whether applicants can operate as a pass-through entity if awarded a grant under this grant program. We are not awarding grants to organizations that would operate as a central prime awardee because we do not believe it would be appropriate for a single agency to administer this grant program on behalf of VA. While the commenter references a cap of $150,000, we did not set forth in regulation any cap on the amount of funds we will award grantees. Instead, we stated that this information on estimated amounts of legal services grant funding available, including the maximum grant funding available per award, would be included in the NOFO. See 38 CFR 79.65(c). As there is no such cap in the regulations, particularly as the funds available and awarded can vary annually, we make no changes based on this comment.

Lastly, this commenter also recommended that funds under this program be allowed to cover attorney training and professional development and that this be clarified in the NOFO.

While we make no changes to the regulation based on this comment, we would allow grantees to use legal funds for attorney training and professional development. However, those costs must be covered under the administrative costs. We will provide further guidance on such allowable administrative costs, including attorney training and professional development, in the program guidance and through technical assistance.

One commenter expressed their support for the rule but suggested that VA require its employees to provide information on this grant program if domestic violence is disclosed to them. This comment is outside the scope of this rulemaking, and such a requirement would be more appropriate for internal VA policy. We will work with VA's Intimate Partner Violence Assistance Program to ensure they have information on this program that can be shared with veterans if domestic violence is disclosed to VA employees. We make no changes to part 79 based on this comment.

Two commenters, who identified as veterans, separately expressed their need for assistance as they were at risk for homelessness. While we consider these comments outside the scope of the rulemaking, to the extent these commenters provided contact information, VA did reach out to them. We further encourage these veterans and others who may be in similar situations to contact their nearest VA facility for further assistance in addressing their needs. We also refer such veterans to VA's website for additional information on VA's homeless programs. See https://www.va.gov/homeless. We do not make any changes to part 79 based on these comments.

Changes to 38 CFR Part 79 Not Based on Comments

VA makes several changes not based on comments. These do not create any burdens or restrictions on grantees under this grant program and address issues VA has identified with implementation. Several of these changes remove requirements and limitations that would restrict grantees and their ability to effectively provide legal services under this grant program. These changes are a logical outgrowth from the IFR, and even if they are not, given their nature, advance notice and the opportunity to comment is unnecessary under the terms of 5 U.S.C. 553(b)(B).

Changes to § 79.10(c)

Pursuant to 38 U.S.C. 2022A(c), VA established in 38 CFR 79.10 the criteria for an entity to be considered an eligible entity under part 79. One such entity that is eligible for a grant under part 79 is a non-profit private entity. However, Congress did not define this term in 38 U.S.C. 2022A. Thus, as explained in the IFR, VA defined non-profit private entity to mean an entity that meets the requirements of 26 U.S.C. 501(c)(3) or (19). 87 FR 33028. These are designations used by the Internal Revenue Service for purposes of tax exemptions and include such entities as corporations; foundations; and certain posts and organizations of members of the Armed Forces; in which no part of the net earnings inure to the benefit of any private shareholder or individual. Id.

When we promulgated the IFR, we believed that non-profit private entities, such as bar associations, that specialize in providing legal services to veterans who are homeless or at risk for homelessness, including Native veterans, women veterans, and those who live in rural areas, would meet the requirements of 38 CFR 79.10(c). However, since implementing part 79, we have found that such entities may not be eligible to apply for, or receive, a grant because they do not meet the criteria of a non-profit private entity, as defined in 38 CFR 79.10(c), nor do they meet any other criteria to be considered an eligible entity under § 79.10. Instead, such entities may meet the requirements of 26 U.S.C. 501(c)(6), which refers to business leagues, chambers of commerce, real-estate boards, boards of trade, or professional football leagues (whether or not administering a pension fund for football players), not organized for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual.

To ensure that such entities are eligible to apply for, and receive, a grant under part 79, we revise 38 CFR 79.10(c) to include non-profit private entities that meet the requirements of 26 U.S.C. 501(c)(6). While we did not receive any comments on this issue, we consider this change to be removing a restriction in its regulation that excludes other non-profit private entities that commonly provide legal services from applying for, and receiving, a grant. These entities such as bar associations are important to the implementation of this grant program, as they would likely have the capacity to effectively administer a grant under part 79 and often provide legal services to those who may not otherwise have access to such services, such as those who are homeless or at risk for homelessness. We believe this revision to 38 CFR 79.10(c) thus aligns with the intent of the 38 U.S.C. 2022A(a) and (c), as VA is required to award grants to eligible entities that provide legal services to homeless veterans and veterans at risk for homeless, and VA may only award grants if the applicant is a public or nonprofit private entity with the capacity (as determined by the Secretary) to effectively administer a grant under section 2022A (emphasis added).

Changes to §§ 79.25, 79.75, and 79.95

Sections 79.75 and 79.95 include information collections subject to the Paperwork Reduction Act (PRA). When the IFR published, these information collections had not yet been approved by the Office of Management and Budget (OMB). In §§ 79.75 and 79.95, we thus included language noting that OMB had approved the information collection provisions in these sections but did not identify specific control numbers. However, these information collections have been approved and designated with control numbers. Thus, in this final rule, we revise the language in §§ 79.75 and 79.95 to state that OMB has approved the information collection provisions in this section under control number 2900-0905.

Additionally, we are amending § 79.25 to state that OMB has approved the information collection provisions in this section under control number 2900-0905. We inadvertently left this sentence out of the section when we published the IFR. As § 79.25 addresses applications, which are subject to PRA, we now add this language to reflect the approved collection.

Changes to § 79.80

Section 79.80 explains that faith-based organizations are eligible to participate in the Legal Services for Homeless Veterans and Veterans At-Risk for Homelessness Grant Program and describes the conditions for use of these grants as they relate to religious activities. Subsequent to the publication of the interim final rule establishing part 79, VA finalized regulations updating 38 CFR part 50. See 89 FR 15671 (March 4, 2024). Part 50 also explains that faith-based organizations are eligible to participate in VA's grant-making programs on the same basis as any other organizations, that VA will not discriminate against faith-based organizations in the selection of service providers, and that faith-based and other organizations may request accommodations from program requirements and may be afforded such accommodations in accordance with Federal law. Because all VA grant programs, including the grant program in part 79, are subject to part 50, we revise 38 CFR 79.80 to refer to part 50 rather than restate the provisions of part 50. Thus, in the event that part 50 is further amended, we would not need to amend part 79.

We do not regard notice and comment on this change as necessary because the public was already given notice and an opportunity to comment as part of the rulemaking to amend part 50.

Relatedly, we also remove in 38 CFR 79.5 the terms "Direct Federal financial assistance" and "Indirect Federal financial assistance" and their definitions, as such terms and definitions were only included in § 79.5 to define the use of these terms in § 79.80. Since we are revising § 79.80 to reference 38 CFR part 50, as explained above, and current part 50 includes definitions for these terms, we remove these terms and their definitions from 38 CFR 79.5 as they will no longer be used in part 79.

Changes to 38 CFR 79.90

Section 79.90 describes financial management and administrative costs related to this grant program. Paragraph (d) limits the administrative costs to no more than 10 percent of the total amount of the legal services grant. This 10 percent cap aligned with other VA grant programs such as the Supportive Services for Veteran Families program (see 38 CFR 62.10), as well as 2 CFR 200.414(f), which sets the de minimis rate for indirect costs (also commonly referred to as administrative costs) for non-Federal entities that receive Federal financial assistance. Effective October 1, 2024, the rate in § 200.414(f) will increase from 10 percent to 15 percent. See 89 FR 30046 (April 22, 2024).

Additionally, 2 CFR 200.414(c) requires that negotiated rates for indirect costs between one Federal awarding agency and a grantee must be accepted by all Federal awarding agencies unless a different rate is required by statute or regulation. Thus, in instances when a legal services grantee has negotiated with another Federal awarding agency a rate other than the de minimis rate set forth in § 200.414(f), VA could accept that rate pursuant to § 200.414(f). However, as VA established the 10 percent rate in current 38 CFR 79.90(d), VA is unable to accept any negotiated rates a grantee may have with another Federal awarding agency. This could limit the number of organizations to which VA could provide funds under this instant grant program, as some organizations, including those who have current and/or past experience providing the services authorized under this grant program, may choose not to apply for a grant under part 79.

Thus, VA is revising § 79.90(d) to state "Costs for administration by a grantee will be consistent with 2 CFR part 200." This will provide VA flexibility to quickly implement the 15 percent as the de minimis rate for indirect costs, and any subsequent changes to that rate, in § 200.414(f) without first having to conduct rulemaking to change 38 CFR part 79. VA would not reference the specific section of 2 CFR part 200 as that is subject to change.

This will also allow VA to utilize negotiated rates pursuant to § 200.414(f), as applicable, which will align VA with other Federal agencies who provide funds to organizations for the similar type of services that are authorized under this instant grant program, as VA will be able to apply the negotiated rate pursuant to 2 CFR 200.414(c), when applicable. This revision will also align the instant grant program with similar changes VA is making to other grant programs, such as the Sergeant Parker Gordon Fox Suicide Prevention Grant program. See for example, 38 CFR 78.140(d).

This change is within VA's discretion under 38 U.S.C. 2022A(b), which requires VA to establish criteria and requirements for grants under [such] section. Section 2022A does not place limits on the percentage of the grants funds that may be used for administrative costs. VA makes no further changes to 38 CFR 79.90.

Administrative Procedure Act

VA has considered all relevant input and information contained in the comments submitted in response to the IFR (87 FR 33025) and, for the reasons set forth in the foregoing responses to those comments, has concluded that changes to the IFR are warranted based on those comments. VA is also making changes to the regulation, as explained above, that do not require notice and comment before implementation. These changes are a logical outgrowth from the IFR, and even if they are not, they relieve limitations and requirements previously established through the IFR, and advance notice and opportunity to comment is unnecessary under the terms of 5 U.S.C. 553(b)(B) because the amendments generally align with the statutory authority and do not create any burdens or restrictions on grantees under this program. Changes to 38 CFR 79.80 were already effectively subject to notice and comment as well through the rulemaking to amend part 50, as discussed above. Accordingly, based upon the authorities and reasons set forth in issuing the IFR (87 FR 33025), as supplemented by the additional reasons provided in this document in response to comments received and based on the rationale set forth in this rule, VA is adopting the provisions of the IFR as a final rule with changes.

Executive Orders 12866, 13563, and 14094

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 (Executive Order on Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), and Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review). The Office of Information and Regulatory Affairs has determined that this rulemaking is not a significant regulatory action under Executive Order 12866, as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). This final rule will only impact those entities that choose to participate in the Legal Services for Homeless Veterans and Veterans At-Risk for Homelessness Grant Program. Small entity applicants will not be affected to a greater extent than large entity applicants. Small entities must elect to participate. To the extent this final rule would have any impact on small entities, it would not have an impact on a substantial number of small entities. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and Tribal governments, or on the private sector.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. Except for emergency approvals under 44 U.S.C. 3507(j), VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The interim final rule included provisions constituting new collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that required approval by OMB (the provisions in the interim final rule are 38 CFR 79.25, 79.75, and 79.95). Accordingly, under 44 U.S.C. 3507(d), VA submitted a copy of the IFR to OMB for review, and VA requested that OMB approve the collections of information on an emergency basis. VA did not receive any comments on the collections of information contained in the interim final rule. OMB approved the collections of information under control number 2900-0905.

Assistance Listing

The Assistance Listing numbers and titles for the programs affected by this document are 64.056.

Congressional Review Act

Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not satisfying the criteria under 5 U.S.C. 804(2).

Signing Authority

Denis McDonough, Secretary of Veterans Affairs, approved and signed this document on October 31, 2024, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons stated in the preamble, the interim rule amending 38 CFR chapter 1, which was published at 87 FR 33025 (June 1, 2022), is adopted as final with the following changes:

PART 79-LEGAL SERVICES FOR HOMELESS VETERANS AND VETERANS AT-RISK FOR HOMELESSNESS GRANT PROGRAM

[FR Doc. 2024-25964 Filed 11-12-24; 8:45 am]

BILLING CODE 8320-01-P