AR16 Final Rule Staff Sergeant Parker Gordon Fox Suicide Prevention Grant Program

Staff Sergeant Parker Gordon Fox Suicide Prevention Grant Program

Supplementary Information

In an interim final rule published in the Federal Register (FR) on March 10, 2022, (87 FR 13806), VA established and implemented, in new part 78 of title 38, Code of Federal Regulations (CFR), the Staff Sergeant Parker Gordon Fox Suicide Prevention Grant Program (SSG Fox SPGP), required by section 201 of the Commander John Scott Hannon Veterans Mental Health Care Improvement Act of 2019, Public Law (Pub. L.) 116-171 (the Act). VA provided a 60-day comment period. On March 22, 2022, VA published a technical correction to address minor technical and inadvertent errors in the published interim final rule. 87 FR 16101. This technical correction did not extend the comment period, which ended on May 9, 2022. Ten comments were received.

Comments

All of the comments were generally supportive of the rule, and VA thanks the commenters for their support. VA received substantive feedback from three commenters, all of which were individuals, and their comments are discussed in more detail below.

Applications, Suicide Prevention Services, and Eligibility

One commenter provided substantive feedback regarding 38 CFR 78.15, which describes the grant application package. This commenter suggested the application criteria include that the programs and services are evidence-informed or evidence-based and referred to related definitions from a National Academies of Sciences, Engineering, and Medicine report from 2019. VA appreciates this comment, but makes no changes based on it for the reasons described below.

VA acknowledges the importance of evidence-informed and evidence-based programs, services, and strategies in reducing suicide risk, and notes that the majority of the services provided under this grant program, as set forth in §§ 78.50 through 79.85, are evidence-based or evidence-informed.

VA acknowledges that it requires applicants to present evidence of their capacity to provide services and programs and for them to stay informed of evidence-informed suicide prevention practices. For example, as part of the application, applicants are required to provide evidence relating to their programs and services. Current § 78.15(a)(1) requires documentation evidencing the experience of the applicant and any identified community partners in providing or coordinating the provision of suicide prevention services to eligible individuals and their families. Paragraph (a)(6) also requires, in pertinent part, evidence of measurable outcomes related to reductions in suicide risk and mood-related symptoms using validated instruments. We believe these provisions already address the concerns of the commenter.

Additionally, § 78.25(c)(2)(iii) states that VA will award points based on the applicant having a feasible plan for ensuring that the applicant's staff and any community providers are appropriately trained and stay informed of SSG Fox SPGP policy, evidence-informed suicide prevention practices, and the requirements of part 78. Similarly, § 78.30(d)(1) provides that VA will give preference to applicants that demonstrated the ability to provide or coordinate suicide prevention services, which can be easily demonstrated through the use of evidence-based or evidence-informed interventions. As set forth in current §§ 78.45 through 78.90, suicide prevention services include outreach, baseline mental health screenings, education, clinical services for emergency treatment, case management services, peer support services, assistance in obtaining VA and other public benefits, assistance with emergent needs, nontraditional and innovative approaches and treatment practices, and other services such as general suicide prevention assistance. These provisions further demonstrate that existing requirements will ensure that programs and services take a public health approach to suicide prevention, balancing linkage to clinical interventions with community-based strategies tailored to that community's unique needs.

Pursuant to § 78.90, VA may authorize "other services" which may not necessarily be evidence-informed or evidence-based, but informed by a public health approach to suicide prevention that blends community-based prevention with evidence-based clinical strategies. Additionally, "other services" are considered because the field of mental health and suicide prevention, including the data and evidence supporting suicide prevention services, is continuously evolving. This approach provides VA with flexibility to approve those services that have promise in reducing veteran suicide but do not yet have data to directly support service expected outcomes. VA believes this is consistent with the intent of this program as a pilot and section 201 of the Act, as pilot programs are typically intended to provide an agency with a period of time to develop a systematic method for program evaluation, evaluate how such a program should operate, and develop metrics and outcomes, ultimately to inform which programs should be continued. Requiring that programs and services provided under this grant program all be evidence-informed or evidence-based could potentially limit the approaches and treatment practices that may be effective in reducing and preventing suicide risk, which would be contrary to the intent of section 201 of the Act and of this program as a pilot. As a result, VA makes no changes based on this comment.

Another commenter suggested that the types of services provided could be extended. This commenter endorsed an idea submitted in response to the request for information VA published in April 2021 related to this rulemaking to have a holding system at gun clubs for veterans while they seek mental health treatment. See 86 FR 17268 (April 1, 2021). This could be considered a nontraditional innovative practice or other service that grantees could provide pursuant to 38 CFR 78.85 or 78.90, respectively. Sections 78.85 and 78.90 are not intended to be exhaustive lists of services covered under those sections. Instead, VA has retained discretion to approve services or approaches proposed by applicants pursuant to §§ 78.85 and 78.90. An applicant is not prohibited from proposing such approaches or services in their application, upon which VA would consider these potential services based on the individual application. Thus, VA would not revise §§ 78.85 or 78.90 to include this as an approved suicide prevention service. VA makes no changes based on this comment.

This commenter also appeared to argue that suicide prevention services should be extended to include those that would address housing and child care as the commenter notes that lack of access to these services can affect an individual's mental health. Pursuant to § 78.80(e) and (h), grantees may assist eligible individuals in obtaining and coordinating child care and temporary income support services including housing assistance as part of any public benefit provided by Federal, State, local, or Tribal agencies, or any other grantee in the area. The grantee may also directly provide child care and housing assistance. Under § 78.80(g), grantees can also assist participants in obtaining and coordinating other public benefits or assisting with emergent needs, and grantees can provide directly to participants legal services to assist with issues, including obtaining or retaining permanent housing, that may contribute to the risk of suicide.

Relatedly, this commenter also seemed to argue that the services under this grant program should be available to those who do not struggle with suicidal ideation. In determining eligibility for services under this grant program, VA requires suicidal ideation and/or behaviors as part of the criteria of being at risk for suicide. Pursuant to § 78.10(b), VA requires exposure to, or the existence of certain factors, to any degree, that increase the risk for suicidal ideation and/or behaviors [emphasis added]. This is consistent with the intent of this grant program and section 201 of the Act, including section 201(q)(4), which defines eligible individuals for purposes of the program as persons "at risk of suicide". VA notes that those who are ineligible for services under this grant program because they are not at risk for suicide may be eligible for other benefits and services to address any challenges they may be encountering, including such VA benefits and services as VA health care and the Homeless Grant and Per Diem Program. Grantees can, and are encouraged to, refer individuals who have been screened but are determined not to be at risk of suicide to other resources and organizations in their community or to furnish support to them directly through resources other than those available under this program.

VA makes no changes based on this comment.

Reporting and Referrals

One commenter stated that the regulations on reporting and referrals were too strict and that they hoped they could be adjusted to account for veterans who may avoid this program because they either would not want VA to hold onto their records or are not comfortable with a program affiliated with VA. VA understands the commenter's concern, but many of the reporting requirements are consistent with the requirements of the Act (see section 201(e)(5) and (k) of the Act) as well as other VA grant programs, such as the Supportive Services for Veterans and Families (SSVF) program. Thus, VA is unable to change several of these reporting requirements without congressional action to remove such requirements. Additionally, these reporting requirements are important in ensuring that VA is a good fiscal steward of the taxpayer dollar in administering this grant program. VA further notes these reporting requirements are for the grantees and not veterans.

With regard to the regulations on referrals, VA assumes this commenter is mentioning the referral requirement in 38 CFR 78.50. Under section 201(m)(1) of the Act, grantees are required to refer certain eligible individuals to VA for care. Such individuals can refuse referral, consistent with section 201(m)(3). VA modeled the requirement of referral in 38 CFR 78.50 after the referral requirement in section 201(m) of the Act. Because this referral is required by statute, VA is unable to remove or adjust this requirement in 38 CFR 78.50 without legislative action removing this referral requirement from section 201(m) of the Act.

The commenter also stated that there may be individuals who choose to stay away from programs that have VA's name attached to them. However, pursuant to section 201(e)(1) of the Act, each grantee is required to notify recipients of the suicide prevention services that are being paid for, in whole or in part, by VA. VA makes no changes to the regulations based on this comment.

Changes to 38 CFR Part 78 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 suicide prevention services under this grant program. These changes are a logical outgrowth from the interim final rule, 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 38 CFR 78.50 and 78.95

As part of the interim final rule published on March 10, 2022, VA established 38 CFR 78.50(a), which requires that grantees provide or coordinate the provision of a baseline mental health screening to all participants, including eligible individuals and their family, at the time those services begin. VA is revising 38 CFR 78.50(a) to only require the provision of a baseline mental health screening to eligible individuals instead of all participants (such as family). This revision would be consistent with section 201(m) of the Act, which only requires the provision of a baseline mental health screening to eligible individuals. See also, section 201(k)(1)(B)(vi) which requires a report on the number of eligible individuals whose mental health status, wellbeing, and suicide risk received a baseline measurement assessment under section 201. It is not appropriate to require grantees to conduct baseline mental health screenings to participants other than eligible individuals, including children under the age of 18 as well as other family of eligible individuals (that is, parents, spouses, siblings, step-family members, extended family members, and any other individuals who live with the eligible individuals) in their programs. Additionally, as explained in the amendment to Notice of Funding Opportunity (NOFO) published on June 3, 2022, this requirement could present significant logistical and legal difficulties regarding the provision or coordination of the provision of a baseline mental health screening to children. See 87 FR 33880 for additional information.

While VA did not receive any comments on the requirement to provide or coordinate the provision of a baseline mental health screening to all participants during the public comment period on the interim final rule, this revision to § 78.50(a) will lessen the burden on grantees, as they will only be required to conduct baseline mental health screenings for eligible individuals. However, VA acknowledges that if a grantee desires to conduct the baseline mental health screening of a participant other than an eligible individual, VA is not restricting their ability to do so, but that would be at the grantee's discretion and would not be supported through grant funds.

To be consistent with the changes VA is making to § 78.50(a), VA also amends § 78.50 by removing paragraph (c), which explains that if a participant other than an eligible individual is at risk of suicide or other mental or behavioral health condition pursuant to the baseline mental health screening conducted under paragraph (a), the grantee must refer such participant to appropriate health care services in the area unless the grantee is capable of furnishing such care and that any ongoing clinical services provided to the participant by the grantee are at the expense of the grantee.

Because VA will not require grantees to provide a baseline mental health screening to all participants (as explained directly above), the requirement in paragraph (c) to refer participants to appropriate health care services in the area based on the baseline mental health screening would also not be needed. However, VA strongly encourages grantees that identify such participants as being at risk of suicide or other mental or behavioral health condition to refer these participants to appropriate health care services in the area or provide such care themselves if the grantee is capable and does so at their own expense. This would ensure that these participants receive any necessary health care services to address their condition(s). VA would not require referrals, but rather strongly encourage them in such instances. This would be reflected in grant program materials such as the NOFO and program guide.

For the same reasons as discussed above, VA makes similar and consistent changes to § 78.50(d), which states that except as provided for under § 78.60(a), funds provided under this grant program may not be used to provide clinical services to participants, and any ongoing clinical services provided to such individuals by the grantee are at the expense of the grantee. The grantee may not charge, bill, or otherwise hold liable participants for the receipt of such care or services. VA now revises § 78.50(d) to refer to eligible individuals instead of participants, and to redesignate paragraph (d) as paragraph (c), given the removal of paragraph (c) as described above.

To be consistent with these changes made in § 78.50, VA also revises § 78.95(b), which requires that prior to services ending, grantees must provide or coordinate the provision of a mental health screening using the screening tool described in § 78.50(a) to all participants they serve, when possible. VA revises § 78.95(b) to refer to eligible individuals instead of participants.

Changes to 38 CFR 78.130

Section 78.130 explains that faith-based organizations are eligible for suicide prevention services grants 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 78, 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 SSG Fox SPGP, are subject to part 50, VA revises 38 CFR 78.130 to refer to part 50 rather than restate the provisions of part 50. Thus, in the event that part 50 is further amended, VA would not need to amend part 78. VA does 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.

Changes to 38 CFR 78.140

Section 78.140 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 suicide prevention services grant. While 2 CFR 200.414(c) requires that negotiated rates for indirect costs (also commonly referred to as administrative costs) between one Federal awarding agency and a grantee must be accepted by all Federal awarding agencies, Federal agencies are able to use different rates when authorized by statute or regulation. See 2 CFR 200.414(c)(1).

Pursuant to such exception, VA promulgated the 10 percent limit on administrative costs at 38 CFR 78.140(d). However, VA has found that capping the administrative costs at 10 percent results in certain unintended consequences. Through the application process, VA has found that numerous organizations receive funding from other Federal agencies for the provision or coordination of the provision of similar services that are provided under the instant grant program. Those organizations have various rates determined by a negotiated Federal indirect cost rate (IDCR) that may be higher or lower than 10 percent. For example, after reviewing whether current grantees received funding from other Federal agencies, VA identified that 31 of the 80 current grantees have a negotiated Federal IDCR that is higher than 10 percent.

As a result, such organizations have internally operationalized such rates. VA's 10 percent limit may negatively impact those organizations who have an IDCR higher than 10 percent, particularly as such organizations may not have additional funds for administrative costs due to the operationalization of the higher rate they have established with other Federal agencies for the provision or coordination of similar services. VA is thus concerned that limiting administrative costs to 10 percent may disrupt organizations' provision or coordination of the provision of services authorized under the instant grant program and those similar services that may be provided or coordinated by the organization pursuant to funding awarded by another Federal agency.

Additionally, VA is concerned that this 10 percent cap may result in some organizations, who have an IDCR higher than 10 percent, deciding not to apply for a suicide prevention services grant. This could limit the number of organizations to which VA could provide funds under this instant grant program, including those organizations that have current and/or past experience providing and/or coordinating the services authorized under this grant program.

Removing this limit of 10 percent and applying the rate that an organization has negotiated with another Federal agency pursuant to 2 CFR 200.414(c) will ensure that VA aligns with other Federal agencies who provide funds to organizations for the similar type of services that are authorized under this instant grant program.

For these reasons, VA amends 38 CFR 78.140 by revising the first sentence of paragraph (d) to state that costs for administration by a grantee will be consistent with 2 CFR part 200. VA would not reference the specific section of part 200 as that is subject to change. The rest of paragraph (d) that further describes administrative costs remains as is. This change will effectively allow more applicants to apply for and potentially receive grants under this program.

This change is within VA's discretion under section 201(f)(1) of the Act, which permits VA to require such commitments and information as the Secretary considers necessary to carry out section 201. Section 201 of the Act also does not place limits on the percentage of the grant funds that may be used for administrative costs. VA makes no further changes to 38 CFR 78.140.

Changes to References to Office of Management and Budget (OMB) Control Numbers

Sections 78.10, 78.15, 78.95, 78.125, and 78.145 include information collections subject to the Paperwork Reduction Act. When the interim final rule published, these information collections had not yet been approved by OMB. In §§ 78.10, 78.15, 78.95, 78.125, and 78.145, VA thus included language noting that the Office of Management and Budget had approved the information collection provisions in this section, but it did not identify specific control numbers. However, these information collections have since been approved and designated with control numbers. VA now revises the language in §§ 78.10, 78.15, 78.95, 78.125, and 78.145 to state that OMB has approved the information collection provisions in this section under control number 2900-0904.

Administrative Procedure Act

VA has considered all relevant input and information contained in the comments submitted in response to the interim final rule (87 FR 13806) and, for the reasons set forth in the foregoing responses to those comments, has concluded that no changes to the interim final rule are warranted based on those comments. However, VA is making minor changes to the regulation, as explained above, that do not require notice and comment before implementation. These changes are a logical outgrowth from the interim final rule, and even if they are not, they relieve requirements previously established through the interim final rule, and advance notice and the 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 78.130 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 the interim final rule (87 FR 13806), 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 interim final rule as a final rule with minor 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 a significant regulatory action under Executive Order 12866. 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 Staff Sergeant Parker Gordon Fox Suicide Prevention 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.

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 §§ 78.10, 78.15, 78.95, 78.125, and 78.145). Accordingly, under 44 U.S.C. 3507(d), VA submitted a copy of the interim final rule 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 2900-0904.

Assistance Listing

The Assistance Listing numbers and titles for the programs affected by this document are 64.055, VA Suicide Prevention Program.

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 this document on July 23, 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 final rule amending 38 CFR chapter 1 by adding part 78, which was published at 87 FR 13806 (March 10, 2022) and amended by 87 FR 16101 (March 22, 2022), is adopted as a final rule with the following changes:

Part 78 Staff Sergeant Parker Gordon Fox Suicide Prevention Grant Program