[Title 38 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2017 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 38
Pensions, Bonuses, and Veterans' Relief
________________________
Parts 0 to 17
Revised as of July 1, 2017
Containing a codification of documents of general
applicability and future effect
As of July 1, 2017
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 38:
Chapter I--Department of Veterans Affairs 3
Finding Aids:
Table of CFR Titles and Chapters........................ 853
Alphabetical List of Agencies Appearing in the CFR...... 873
List of CFR Sections Affected........................... 883
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 38 CFR 0.600 refers
to title 38, part 0,
section 600.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
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parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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OMB CONTROL NUMBERS
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Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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PAST PROVISIONS OF THE CODE
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
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What if the material incorporated by reference cannot be found? If
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[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register.
July 1, 2017.
[[Page ix]]
THIS TITLE
Title 38--Pensions, Bonuses and Veterans' Relief is composed of two
volumes. The parts in these volumes are arranged in the following order:
parts 0-17 and part 18 to end. The contents of these volumes represent
all current regulations codified by the Department of Veterans Affairs
and the Armed Forces Retirement Home under this title of the CFR as of
July 1, 2017.
For this volume, Michele Bugenhagen was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
(This book contains parts 0 to 17)
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Part
chapter i--Department of Veterans Affairs................... 0
[[Page 3]]
CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
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Editorial Note: Nomenclature changes to chapter I appear at 64 FR
30244, June 7, 1999; 66 FR 44053, Aug. 22, 2001; and 66 FR 66767, Dec.
27, 2001.
Part Page
0 Values, standards of ethical conduct, and
related responsibilites................. 5
1 General provisions.......................... 7
2 Delegations of authority.................... 139
3 Adjudication................................ 147
4 Schedule for rating disabilities............ 383
5 [Reserved]
6 United States Government life insurance..... 509
7 Soldiers' and sailors' civil relief......... 515
8 National Service Life Insurance............. 517
8a Veterans Mortgage Life Insurance............ 535
9 Servicemembers' Group Life Insurance and
Veterans' Group Life Insurance.......... 538
10 Adjusted compensation....................... 555
11 Loans by banks on and payment of adjusted
service certificates.................... 563
12 Disposition of veteran's personal funds and
effects................................. 570
13 Veterans Benefits Administration, fiduciary
activities.............................. 581
14 Legal services, General Counsel, and
miscellaneous claims.................... 589
15 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Department
of Veterans Affairs..................... 638
16 Protection of human subjects................ 645
17 Medical..................................... 669
[[Page 5]]
PART 0_VALUES, STANDARDS OF ETHICAL CONDUCT, AND RELATED
RESPONSIBILITIES--Table of Contents
Subpart A_Core Values and Characteristics of the Department
Sec.
0.600 General.
0.601 Core Values.
0.602 Core Characteristics.
Subpart B_General Provisions
0.735-1 Agency ethics officials.
0.735-2 Government-wide standards.
Subpart C_Standards of Ethical Conduct and Related Responsibilities of
Employees
0.735-10 Cross-reference to employee ethical and other conduct
standards and financial disclosure regulations.
0.735-11 Other conduct on the job.
0.735-12 Standards of conduct in special areas.
Authority: 5 U.S.C. 301; 38 U.S.C. 501; see sections 201, 301, and
502(a) of E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215 as modified
by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.
Source: 31 FR 5828, Apr. 15, 1966, unless otherwise noted.
Subpart A_Core Values and Characteristics of the Department
Source: 77 FR 41275, July 13, 2012, unless otherwise noted.
Sec. 0.600 General.
This section describes the Core Values and Characteristics that
serve as internal guidelines for employees of the Department of Veterans
Affairs (VA). These Core Values and Characteristics define VA employees,
articulate what VA stands for, and underscore its moral obligation to
veterans, their families, and other beneficiaries. They are intended to
establish one overarching set of guidelines that apply to all VA
Administrations and staff offices, confirming the values already
instilled in many VA employees and enforcing their commitment to provide
the best service possible to veterans, their families, and their
caretakers.
Sec. 0.601 Core Values.
VA's Core Values define VA employees. They describe the
organization's culture and character, and serve as the foundation for
the way VA employees should interact with each other, as well as with
people outside the organization. They also serve as a common bond
between all employees regardless of their grade, specialty area, or
location. These Core Values are Integrity, Commitment, Advocacy,
Respect, and Excellence. Together, the first letters of the Core Values
spell ``I CARE,'' and VA employees should adopt this motto and these
Core Values in their day-to-day operations.
(a) Integrity. VA employees will act with high moral principle,
adhere to the highest professional standards, and maintain the trust and
confidence of all with whom they engage.
(b) Commitment. VA employees will work diligently to serve veterans
and other beneficiaries, be driven by an earnest belief in VA's mission,
and fulfill their individual responsibilities and organizational
responsibilities.
(c) Advocacy. VA employees will be truly veteran-centric by
identifying, fully considering, and appropriately advancing the
interests of veterans and other beneficiaries.
(d) Respect. VA employees will treat all those they serve and with
whom they work with dignity and respect, and they will show respect to
earn it.
(e) Excellence. VA employees will strive for the highest quality and
continuous improvement, and be thoughtful and decisive in leadership,
accountable for their actions, willing to admit mistakes, and rigorous
in correcting them.
Sec. 0.602 Core Characteristics.
While Core Values define VA employees, the Core Characteristics
define what VA stands for and what VA strives to be as an organization.
These are aspirational goals that VA wants its employees, veterans, and
the American people to associate with the Department and with its
workforce. These Core characteristics describe the traits all VA
organizations should possess and demonstrate, and they identify the
qualities needed to successfully accomplish today's missions and
[[Page 6]]
also support the ongoing transformation to a 21st Century VA. These
characteristics are:
(a) Trustworthy. VA earns the trust of those it serves, every day,
through the actions of its employees. They provide care, benefits, and
services with compassion, dependability, effectiveness, and
transparency.
(b) Accessible. VA engages and welcomes veterans and other
beneficiaries, facilitating their use of the entire array of its
services. Each interaction will be positive and productive.
(c) Quality. VA provides the highest standard of care and services
to veterans and beneficiaries while managing the cost of its programs
and being efficient stewards of all resources entrusted to it by the
American people. VA is a model of unrivalled excellence due to employees
who are empowered, trusted by their leaders, and respected for their
competence and dedication.
(d) Innovative. VA prizes curiosity and initiative, encourages
creative contributions from all employees, seeks continuous improvement,
and adapts to remain at the forefront in knowledge, proficiency, and
capability to deliver the highest standard of care and services to all
of the people it serves.
(e) Agile. VA anticipates and adapts quickly to current challenges
and new requirements by continuously assessing the environment in which
it operates and devising solutions to better serve veterans, other
beneficiaries, and Service members.
(f) Integrated. VA links care and services across the Department;
other federal, state, and local agencies; partners; and Veterans
Services Organizations to provide useful and understandable programs to
veterans and other beneficiaries. VA's relationship with the Department
of Defense is unique, and VA will nurture it for the benefit of veterans
and Service members.
Subpart B_General Provisions
Source: Redesignated at 77 FR 41275, July 13, 2012, unless otherwise
noted.
Sec. 0.735-1 Agency ethics officials.
(a) Designated Agency Ethics Official (DAEO). The Assistant General
Counsel (023) is the designated agency ethics official (DAEO) for the
Department of Veterans Affairs. The Deputy Assistant General Counsel
(023C) is the alternate DAEO, who is designated to act in the DAEO's
absence. The DAEO has primary responsibility for the administration,
coordination, and management of the VA ethics program, pursuant to 5 CFR
2638.201-204.
(b) Deputy ethics officials. (1) The Regional Counsel are deputy
ethics officials. They have been delegated the authority to act for the
DAEO within their jurisdiction, under the DAEO's supervision, pursuant
to 5 CFR 2638.204.
(2) The alternate DAEO, the DAEO's staff, and staff in the Offices
of Regional Counsel, may also act as deputy ethics officials pursuant to
delegations of one or more of the DAEO's duties from the DAEO or the
Regional Counsel.
[58 FR 61813, Nov. 23, 1993. Redesignated at 61 FR 11309, Mar. 20, 1996]
Sec. 0.735-2 Government-wide standards.
For government-wide standards of ethical conduct and related
responsibilities for Federal employees, see 5 CFR Part 735 and Chapter
XVI.
[61 FR 11309, Mar. 20, 1996. Redesignated at 63 FR 33579, June 19, 1998]
Subpart C_Standards of Ethical Conduct and Related Responsibilities of
Employees
Source: 58 FR 61814, Nov. 23, 1993, unless otherwise noted.
Redesignated at 77 FR 41275, July 13, 2012.
Sec. 0.735-10 Cross-reference to employee ethical and other conduct
standards and financial disclosure regulations.
Employees of the Department of Veterans Affairs (VA) should refer to
the executive branch-wide Standards of Ethical Conduct at 5 CFR part
2635, the executive branch-wide Employee Responsibilities and Conduct at
5 CFR part 735, and the executive branch-wide financial disclosure
regulation at 5 CFR part 2634.
[[Page 7]]
Sec. 0.735-11 Other conduct on the job.
Relationship with beneficiaries and claimants. Employees are
expected to be helpful to beneficiaries, patients and claimants, but:
(a) An employee shall not procure intoxicants or drugs for, or
attempt to sell intoxicants or drugs to, patients or members, or give or
attempt to give intoxicants or drugs to them unless officially
prescribed for medical use;
(b) An employee shall not abuse patients, members, or other
beneficiaries, whether or not provoked.
Sec. 0.735-12 Standards of conduct in special areas.
(a) Safety. (1) Employees will observe safety instructions, signs,
and normal safety practices and precautions, including the use of
protective clothing and equipment.
(2) An employee shall report each work-connected injury, accident or
disease he or she suffers.
(b) Furnishing testimony. Employees will furnish information and
testify freely and honestly in cases respecting employment and
disciplinary matters. Refusal to testify, concealment of material facts,
or willfully inaccurate testimony in connection with an investigation or
hearing may be ground for disciplinary action. An employee, however,
will not be required to give testimony against himself or herself in any
matter in which there is indication that he or she may be or is involved
in a violation of law wherein there is a possibility of self-
incrimination.
PART 1_GENERAL PROVISIONS--Table of Contents
Department of Veterans Affairs Official Seal and Distinguishing Flag
Sec.
1.9 Description, use, and display of VA seal and flag.
The United States Flag for Burial Purposes
1.10 Eligibility for and disposition of the United States flag for
burial purposes.
Quarters for Department of Veterans Affairs Employees Overseas
1.11 Quarters for Department of Veterans Affairs employees in
Government-owned or -rented buildings overseas.
Program Evaluation
1.15 Standards for program evaluation.
1.17 Evaluation of studies relating to health effects of radiation
exposure.
1.18 Guidelines for establishing presumptions of service connection for
former prisoners of war.
Referrals of Information Regarding Criminal Violations
1.200 Purpose.
1.201 Employee's duty to report.
1.203 Information to be reported to VA Police.
1.204 Information to be reported to the Office of Inspector General.
1.205 Notification to the Attorney General or United States Attorney's
Office.
Security and Law Enforcement at Department of Veterans Affairs
Facilities
1.218 Security and law enforcement at VA facilities.
1.220 On-site activities by pharmaceutical company representatives at
VA medical facilities.
Parking Fees at VA Medical Facilities
1.300 Purpose.
1.301 Definitions.
1.302 Applicability and scope.
1.303 Policy.
Release of Information from Department of Veterans Affairs (VA) Records
Relating to Drug Abuse, Alcoholism or Alcohol Abuse, Infection With the
Human Immunodeficiency Virus (HIV), or Sickle Cell Anemia
1.460 Definitions.
1.461 Applicability.
1.462 Confidentiality restrictions.
1.463 Criminal penalty for violations.
1.464 Minor patients.
1.465 Incompetent and deceased patients.
1.466 Security for records.
1.467 Restrictions on the use of identification cards and public signs.
1.468 Relationship to Federal statutes protecting research subjects
against compulsory disclosure of their identity.
1.469 Patient access and restrictions on use.
1.470-1.474 [Reserved]
Disclosures With Patient's Consent
1.475 Form of written consent.
1.476 Prohibition on redisclosure.
1.477 Disclosures permitted with written consent.
1.478 Disclosures to prevent multiple enrollments in detoxification and
maintenance treatment programs; not applicable to records
relating to sickle cell anemia or infection with the human
immunodeficiency virus.
[[Page 8]]
1.479 Disclosures to elements of the criminal justice system which have
referred patients.
1.480-1.482 [Reserved]
Disclosures Without Patient Consent
1.483 Disclosure of information to participate in state prescription
drug monitoring programs.
1.484 Disclosure of medical information to the surrogate of a patient
who lacks decision-making capacity.
1.485 Medical emergencies.
1.485a Eye, organ and tissue donation.
1.486 Disclosure of information related to infection with the human
immunodeficiency virus to public health authorities.
1.487 Disclosure of information related to infection with the human
immunodeficiency virus to the spouse or sexual partner of the
patient.
1.488 Research activities.
1.489 Audit and evaluation activities.
Court Orders Authorizing Disclosures and Use
1.490 Legal effect of order.
1.491 Confidential communications.
1.492 Order not applicable to records disclosed without consent to
researchers, auditors and evaluators.
1.493 Procedures and criteria for orders authorizing disclosures for
noncriminal purposes.
1.494 Procedures and criteria for orders authorizing disclosure and use
of records to criminally investigate or prosecute patients.
1.495 Procedures and criteria for orders authorizing disclosure and use
of records to investigate or prosecute VA or employees of VA.
1.496 Orders authorizing the use of undercover agents and informants to
criminally investigate employees or agents of VA.
1.497-1.499 [Reserved]
Release of Information From Department of Veterans Affairs Claimant
Records
1.500 General.
1.501 Release of information by the Secretary.
1.502 Disclosure of the amount of monetary benefits.
1.503 Disclosure of information to a veteran or his or her duly
authorized representative as to matters concerning the veteran
alone.
1.504 Disclosure of information to a widow, child, or other claimant.
1.505 Genealogy.
1.506 Disclosure of records to Federal Government departments, State
unemployment compensation agencies, and the Office of
Servicemembers' Group Life Insurance.
1.507 Disclosures to members of Congress.
1.508 Disclosure in cases where claimants are charged with or convicted
of criminal offenses.
1.509 Disclosure to courts in proceedings in the nature of an inquest.
1.510 Disclosure to insurance companies cooperating with the Department
of Justice in the defense of insurance suits against the
United States.
1.511 Disclosure of claimant records in connection with judicial
proceedings generally.
1.512 Disclosure of loan guaranty information.
1.513 Disclosure of information contained in Armed Forces service and
related medical records in Department of Veterans Affairs
custody.
1.514 Disclosure to private physicians and hospitals other than
Department of Veterans Affairs.
1.514a Disclosure to private psychologists.
1.514b Disclosures to procurement organizations.
1.515 Disclosure of information to participate in state prescription
drug monitoring programs.
1.516 Disclosure of information to undertaker concerning burial of a
deceased veteran.
1.517 Disclosure of vocational rehabilitation and education information
to educational institutions cooperating with the Department of
Veterans Affairs.
1.518 Addresses of claimants.
1.519 Lists of names and addresses.
1.520 Confidentiality of social data.
1.521 Special restrictions concerning social security records.
1.522 Determination of the question as to whether disclosure will be
prejudicial to the mental or physical health of claimant.
1.523 To commanding officers of State soldiers' homes.
1.524 Persons authorized to represent claimants.
1.525 Inspection of records by or disclosure of information to
recognized representatives of organizations and recognized
attorneys.
1.526 Copies of records and papers.
1.527 Administrative review.
Procedures for Disclosure of Records Under the Freedom of Information
Act
1.550 Purpose.
1.551 Definitions.
1.552 General provisions.
1.553 Public reading rooms and discretionary disclosures.
1.554 Requirements for making requests.
1.555 Responsibility for responding to requests.
[[Page 9]]
1.556 Timing of responses to requests.
1.557 Responses to requests.
1.558 Business information.
1.559 Appeals.
1.560 Maintenance and preservation of records.
1.561 Fees.
1.562 Other rights and services.
Safeguarding Personal Information in Department of Veterans Affairs
Records
1.575 Social security numbers in veterans' benefits matters.
1.576 General policies, conditions of disclosure, accounting of certain
disclosures, and definitions.
1.577 Access to records.
1.578 [Reserved]
1.579 Amendment of records.
1.580 Administrative review.
1.581 [Reserved]
1.582 Exemptions.
1.583-1.584 [Reserved]
Expanded Remote Access to Computerized Veterans Claims Records by
Accredited Representatives
1.600 Purpose.
1.601 Qualifications for access.
1.602 Utilization of access.
1.603 Disqualification.
Inventions by Employees of Department of Veterans Affairs
1.650 Purpose.
1.651 Definitions.
1.652 Criteria for determining rights to employee inventions.
1.653 Delegation of authority.
1.654 Patenting of inventions.
1.655 Government license in invention of employee.
1.656 Information to be submitted by inventor.
1.657 Determination of rights.
1.658 Right of appeal.
1.659 Relationship to incentive awards program.
1.660 Expeditious handling.
1.661 Information to be kept confidential.
1.662 Provisions of regulations made a condition of employment.
1.663 Licensing of Government-owned inventions.
1.664-1.666 [Reserved]
Administrative Control of Funds
1.670 Purpose.
1.671 Definitions.
1.672 Responsibilities.
1.673 Responsibility for violations of the administrative subdivision
of funds.
Use of Official Mail in the Location and Recovery of Missing Children
1.700 Purpose.
1.701 Contact person for missing children official mail program.
1.702 Policy.
1.703 Percentage estimate.
1.704 [Reserved]
1.705 Restrictions on use of missing children information.
Homeless Claimants
1.710 Homeless claimants: Delivery of benefit payments and
correspondence.
1.780-1.783 [Reserved]
Part-Time Career Employment Program
1.891 Purpose of program.
1.892 Review of positions.
1.893 Establishing and converting part-time positions.
1.894 Annual goals and timetables.
1.895 Review and evaluation.
1.896 Publicizing vacancies.
1.897 Exceptions.
Standards for Collection, Compromise, Suspension or Termination of
Collection Effort, and Referral of Civil Claims for Money or Property
1.900 Prescription of standards.
1.901 No private rights created.
1.902 Antitrust, fraud, and tax interagency claims.
1.903 Settlement, waiver, or compromise under other statutory or
regulatory authority.
1.904 Form of payment.
1.905 Subdivision of claims not authorized.
1.906 Required administrative proceedings.
1.907 Definitions.
Standards for Collection of Claims
1.910 Aggressive collection action.
1.911 Collection of debts owed by reason of participation in a benefits
program.
1.911a Collection of non-benefit debts.
1.912 Collection by offset.
1.912a Collection by offset--from VA benefit payments.
1.913 Liquidation of collateral.
1.914 Collection in installments.
1.915 Interest, administrative costs, and penalties.
1.916 Disclosure of debt information to consumer reporting agencies
(CRA).
1.917 Contracting for collection services.
1.918 Use and disclosure of mailing addresses.
1.919 Administrative offset against amounts payable from Civil Service
Retirement and Disability Fund, Federal Employees Retirement
System (FERS), final salary check, and lump sum leave
payments.
1.920 Referral of VA debts.
1.921 Analysis of costs.
1.922 Exemptions.
1.923 Administrative wage garnishment.
[[Page 10]]
1.924 Suspension or revocation of eligibility for federal loans, loan
insurance, loan guarantees, licenses, permits, or privileges.
Standards for Compromise of Claims
1.930 Scope and application.
1.931 Bases for compromise.
1.932 Enforcement policy.
1.933 Joint and several liability.
1.934 Further review of compromise offers.
1.935 Consideration of tax consequences to the Government.
1.936 Mutual releases of the debtor and VA.
Standards for Suspending or Terminating Collection Action
1.940 Scope and application.
1.941 Suspension of collection activity.
1.942 Termination of collection activity.
1.943 Exception to termination.
1.944 Discharge of indebtedness; reporting requirements.
1.945 Authority to suspend or terminate collection action on certain
benefit indebtedness; authority for refunds.
Referrals to GAO, Department of Justice, or IRS
1.950 Prompt referral.
1.951 Claims Collection Litigation Report (CCLR).
1.952 Preservation of evidence.
1.953 Minimum amount of referrals to the Department of Justice.
Regional Office Committees on Waivers and Compromises
1.955 Regional office Committees on Waivers and Compromises.
1.956 Jurisdiction.
1.957 Committee authority.
1.958 Finality of decisions.
1.959 Records and certificates.
1.960 Legal and technical assistance.
1.961 Releases.
1.962 Waiver of overpayments.
1.963 Waiver; other than loan guaranty.
1.963a Waiver; erroneous payments of pay and allowances.
1.964 Waiver; loan guaranty.
1.965 Application of standard.
1.966 Scope of waiver decisions.
1.967 Refunds.
1.968 [Reserved]
1.969 Revision of waiver decisions.
1.970 Standards for compromise.
Salary Offset Provisions
1.980 Scope.
1.981 Definitions.
1.982 Salary offsets of debts involving benefits under the laws
administered by VA.
1.983 Notice requirements before salary offsets of debts not involving
benefits under the laws administered by VA.
1.984 Request for a hearing.
1.985 Form, notice of, and conduct of hearing.
1.986 Result if employee fails to meet deadlines.
1.987 Review by hearing official or administrative law judge.
1.988 Written decision following a hearing requested under Sec. 1.984.
1.989 Review of VA records related to the debt.
1.990 Written agreement to repay debt as alternative to salary offset.
1.991 Procedures for salary offset: when deductions may begin.
1.992 Procedures for salary offset.
1.993 Non-waiver of rights.
1.994 Refunds.
1.995 Requesting recovery through centralized administrative offset.
Procedures for Financial Institutions Regarding Garnishment of Benefit
Payments After Disbursement
1.1000 Garnishment of payments after disbursement.
Authority: 38 U.S.C. 501(a), and as noted in specific sections.
Department of Veterans Affairs Official Seal and Distinguishing Flag
Sec. 1.9 Description, use, and display of VA seal and flag.
(a) General. This section describes the official seal and
distinguishing flag of the of the Department of Veterans Affairs, and
prescribes the rules for their custody and use.
(b) Definitions. (1) VA means all organizational units of the
Department of Veterans Affairs.
(2) Embossed seal means an image of the official seal made on paper
or other medium by using an embosser with a negative and positive die to
create a raised impression.
(3) Official seal means the original(s) of the VA seal showing the
exact form, content, and colors thereof.
(4) Replica means a copy of the official seal displaying the
identical form, content, and colors thereof.
(5) Reproduction means a copy of the official seal displaying the
identical form and content, reproduced in only one color.
(6) Secretary means the Secretary of Veterans Affairs.
(7) Deputy Secretary means the Deputy Secretary of Veterans Affairs.
[[Page 11]]
(c) Custody of official seal and distinguishing flags. The Secretary
or designee shall:
(1) Have custody of:
(i) The official seal and prototypes thereof, and masters, molds,
dies, and other means of producing replicas, reproductions, and
embossing seals and
(ii) Production, inventory, and loan records relating to items
specified in paragraph (c)(1)(i) of this section, and
(2) Have custody of distinguishing flags, and be responsible for
production, inventory, and loan records thereof.
(d) Official Seal--(1) Description of official seal. The Department
of Veterans Affairs prescribes as its official seal, of which judicial
notice shall be taken pursuant to 38 U.S.C. 302, the imprint illustrated
below:
[GRAPHIC] [TIFF OMITTED] TC04NO91.000
(i) The official seal includes an American eagle clutching a cord in
its talons. The cord binds a 13-star U.S. flag and a 50-star U.S. flag.
In the field over the eagle is a pentagon formation of stars, with one
point down. The words Department of Veterans Affairs and United States
of America surround the eagle, stars, and flags. A rope motif makes up
the outermost ring of the seal.
(ii) The eagle represents the eternal vigilance of all our nation's
veterans. The stars represent the five branches of military service. The
crossed flags represent our nation's history. The gold cord that binds
the two flags, which is shown clutched in the eagle's talons is symbolic
of those who have fallen in the defense of liberty. Each of the various
individual items placed together in the seal is a salute to the past,
present, and future.
(iii) The colors used in the configuration are gold, brown, blue,
white, silver, yellow, black, and red.
(iv) The colors are derived from the American flag and from nature.
By invoking this symbolism, the color scheme represents the Nation's
commitment to its veterans.
(2) Use of the official seal, replicas, reproductions, and embossing
seals. (i) The Secretary or designees are authorized to affix replicas,
reproductions, and embossed seals to appropriate documents,
certifications, and other material for all purposes as authorized by
this section.
(ii) Replicas may be used only for:
(A) Display in or adjacent to VA facilities, in Department
auditoriums, presentation rooms, hearing rooms, lobbies, and public
document rooms.
(B) Offices of senior officials.
(C) Official VA distinguishing flags, adopted and utilized pursuant
to paragraph (e)(2) of this section.
(D) Official awards, certificates, medals, and plaques.
(E) Motion picture film, video tape, and other audiovisual media
prepared by or for VA and attributed thereto.
(F) Official prestige publications which represent the achievements
or mission of VA.
(G) For other similar official purposes.
(H) For such other purposes as will tend to advance the aims,
purposes and mission of the Department of Veterans Affairs as determined
by the Secretary or Deputy Secretary.
(iii) Reproductions may be used only on:
(A) VA letterhead stationery.
(B) Official VA identification cards and security credentials.
(C) Business cards for VA employees.
(D) Official VA signs.
(E) Official publications or graphics issued by and attributed to
VA, or joint statements of VA with one or more Federal agencies, State
or local governments, or foreign governments.
(F) Official awards, certificates, and medals.
[[Page 12]]
(G) Motion picture film, video tape, and other audiovisual media
prepared by and for VA and attributed thereto.
(H) For other similar official purposes.
(I) For such other purposes as will tend to advance the aims,
purposes and mission of the Department of Veterans Affairs as determined
by the Secretary or Deputy Secretary.
(iv) Use of the official seal and embossed seals:
(A) Embossed seals may be used only on VA legal documents, including
interagency or intergovernmental agreements with States, foreign patent
applications, and similar official documents.
(B) The official seal may be used only for those purposes related to
the conduct of Departmental affairs in furtherance of the VA mission.
(e) Distinguishing flag. (1) Description of distinguishing flag.
(i) The base or field of the flag shall be blue and a replica of the
official seal shall appear on both sides thereof.
(ii) A Class 1 flag shall be of nylon banner, measure 44" on the
hoist by 56" on the fly, exclusive of heading and hems, and be fringed
on three edges with nylon fringe, 2\1/2\" wide.
(iii) A Class 2 flag shall be of nylon banner, measure 3 on the
hoist by 5 on the fly, exclusive of heading and hems, and be fringed on
three edges with nylon fringe, 2\1/2\" wide.
(iv) Each flag shall be manufactured in accordance with Department
of Veterans Affairs Specification X-497G. The replica of the official
seal shall be screen printed or embroidered on both sides.
(2) Use of distinguishing flag. (i) VA distinguishing flags may be
used only:
(A) In the offices of the Secretary, Deputy Secretary, Assistant
Secretaries, Deputy Assistant Secretaries and heads of field locations
designated below:
(1) Regional Offices.
(2) Medical Centers and Outpatient Clinics.
(3) Domiciliaries.
(4) Marketing Centers and Supply Depots.
(5) Data Processing Centers.
(6) National Cemetery Offices.
(7) Other locations as designated by the Deputy Assistant Secretary
for Administration.
(B) At official VA ceremonies.
(C) In Department auditoriums, official presentation rooms, hearing
rooms, lobbies, public document rooms, and in non-VA facilities in
connection with events or displays sponsored by VA, and public
appearances of VA officials.
(D) On or in front of VA installation buildings.
(E) Other such official VA purposes or purposes as will tend to
advance the aims, purposes and mission of the Department of Veterans
Affairs as determined by the Deputy Assistant Secretary for
Administration.
(f) Unauthorized uses of the seal and flag. (1) The official seal,
replicas, reproductions, embossed seals, and the distinguished flag
shall not be used, except as authorized by the Secretary or Deputy
Secretary, in connection with:
(i) Contractor-operated facilities.
(ii) Souvenir or novelty items.
(iii) Toys or commercial gifts or premiums.
(iv) Letterhead design, except on official Departmental stationery.
(v) Matchbook covers, calendars and similar items.
(vi) Civilian clothing or equipment.
(vii) Any article which may disparage the seal or flag or reflect
unfavorably upon VA.
(viii) Any manner which implies Departmental endorsement of
commercial products or services, or of the commercial user's policies or
activities.
(2) Penalties for unauthorized use. Any person who uses the
distinguishing flag, or the official seal, replicas, reproductions or
embossed seals in a manner inconsistent with this section shall be
subject to the penalty provisions of 18 U.S.C. 506, 701, or 1017,
providing penalties for their wrongful use, as applicable.
(Authority: 38 U.S.C. 302, 38 U.S.C. 501)
[55 FR 49518, Nov. 29, 1990]
[[Page 13]]
The United States Flag for Burial Purposes
Sec. 1.10 Eligibility for and disposition of the United States
flag for burial purposes.
(a) Eligibility for burial flags--(1) Persons eligible. (i) A
veteran of any war, of Mexican border service, or of service after
January 31, 1955, discharged or released from active duty under
conditions other than dishonorable. (For the purpose of this section,
the term Mexican border service means active military, naval, or air
service during the period beginning on January 1, 1911, and ending on
April 5, 1917, in Mexico, on the borders thereof, or in the waters
adjacent thereto.)
(ii) A peacetime veteran discharged or released, before June 27,
1950, from the active military, naval, or air service, under conditions
other than dishonorable, after serving at least one enlistment, or for a
disability incurred or aggravated in line of duty.
(iii) Any person who has died while in military or naval service of
the United States after May 27, 1941. This subdivision authorizes and
requires the furnishing of a flag only where the military or naval
service does not furnish a flag immediately. The only cases wherein a
flag is not supplied immediately are those of persons whose remains are
interred outside the continental limits of the United States, or whose
remains are not recovered or are recovered and not identified.
(iv) Any person who served in the organized military forces of the
Commonwealth of the Philippines while such forces were in the service of
the Armed Forces of the United States pursuant to the military order of
the President of the United States, dated July 26, 1941, including among
such military forces organized guerrilla forces under commanders
appointed, designated, or subsequently recognized by the Commander in
Chief, Southwest Pacific Area, or other competent authority in the Army
of the United States, and who dies after separation from such service
under conditions other than dishonorable, on or after April 25, 1951.
(Authority: 38 U.S.C. 107(a))
(v) Any deceased member or former member of the Selected Reserve (as
described in section 10143 of title 10) who is not otherwise eligible
for a flag under this section or section 1482(a) of title 10 and who:
(A) Completed at least one enlistment as a member of the Selected
Reserve or, in the case of an officer, completed the period of initial
obligated service as a member of the Selected Reserve;
(B) Was discharged before completion of the person's initial
enlistment as a member of the Selected Reserve or, in the case of an
officer, period of initial obligated service as a member of the Selected
Reserve, for a disability incurred or aggravated in the line of duty; or
(C) Died while a member of the Selected Reserve.
(Authority: 38 U.S.C. 2301(f)(1))
(b) Disposition of burial flags. (1) When a flag is actually used to
drape the casket of a deceased veteran, it must be delivered to the next
of kin following interment. Where the flag is not claimed by the next of
kin it may be given upon request to a close friend or associate of the
deceased veteran. Such action will constitute final and conclusive
determination of rights under this section. (38 U.S.C. 2301)
(2) The phrase next of kin for the purpose of disposing of the flag
used for burial purposes is defined as follows, with preference to
entitlement in the order listed:
(i) Widow or widower.
(ii) Children, according to age (minor child may be issued a flag on
application signed by guardian).
(iii) Parents, including adoptive, stepparents, and foster parents.
(iv) Brothers or sisters, including brothers or sisters of the
halfblood.
(v) Uncles or aunts.
(vi) Nephews or nieces.
(vii) Others--cousins, grandparents, etc. (but not in-laws).
(3) The phrase close friend or associate for the purpose of
disposing of the burial flag means any person who because of his or her
relationship with the deceased veteran arranged for the burial or
assisted in the burial arrangements.
[[Page 14]]
In the absence of a person falling in either of these categories, any
person who establishes by evidence that he or she was a close friend or
associate of the veteran may be furnished the burial flag. Where more
than one request for the burial flag is received and each is accompanied
by satisfactory evidence of relationship or association, the head of the
field facility having jurisdiction of the burial flag quota will
determine which applicant is the one most equitably entitled to the
burial flag.
(Authority: 72 Stat. 1114, 1169, as amended; 38 U.S.C. 501, 2301)
[13 FR 6999, Nov. 27, 1948, as amended at 20 FR 8350, Nov. 8, 1955; 24
FR 10106, Dec. 15, 1959; 31 FR 4959, Mar. 26, 1966; 42 FR 27245, May 27,
1977; 66 FR 27598, May 18, 2001]
Quarters for Department of Veterans Affairs Employees Overseas
Sec. 1.11 Quarters for Department of Veterans Affairs employees in
Government-owned or -rented buildings overseas.
Pursuant to the provisions of 5 U.S.C. 5912, a U.S. citizen employee
of the Department of Veterans Affairs permanently stationed in a foreign
country may be furnished, without cost to him or her, living quarters,
including heat, fuel, and light, in a Government-owned or -rented
building. When in the interest of the service and when administratively
feasible, an agreement may be entered into by the Under Secretary for
Benefits or designee with another Federal agency, which is authorized to
furnish quarters, to provide such quarters for Department of Veterans
Affairs employees under the provisions of 31 U.S.C. 686. Quarters
provided will be in lieu of any living quarters allowance to which the
employee may otherwise be entitled.
(Authority: 72 Stat. 1114; 38 U.S.C. 501)
[33 FR 362, Jan. 10, 1968]
Program Evaluation
Sec. 1.15 Standards for program evaluation.
(a) The Department of Veterans Affairs will evaluate all programs
authorized under title 38 U.S.C. These evaluations will be conducted so
as to determine each program's effectiveness in achieving its stated
goals and in achieving such goals in relation to their cost. In
addition, these evaluations will determine each program's impact on
related programs and its structure and mechanism for delivery of
services. All programs will be evaluated on a continuing basis and all
evaluations will be conducted by Department of Veterans Affairs staff
assigned to an organizational entity other than those responsible for
program administration. These evaluations will be conducted with
sufficient frequency to allow for an assessment of the continued
effectiveness of the programs.
(b) The program evaluation will be designed to determine if the
existing program supports the intent of the law. A program evaluation
must identify goals and objectives that support this intent, contain a
method to measure fulfillment of the objectives, ascertain the degree to
which goals and objectives are met, and report the findings and
conclusions to Congress, as well as make them available to the public.
(c) The goals must be clear, specific, and measurable. To be clear
they must be readily understood, free from doubt or confusion, and
specific goals must be explicitly set forth. They must be measurable by
objective means. These means can include use of existing record systems,
observations, and information from other sources.
(d) All program evaluations require a detailed evaluation plan. The
evaluation plan must clearly state the objectives of the program
evaluation, the methodology to be used, resources to be committed, and a
timetable of major phases.
(e) Each program evaluation must be objective. It must report the
accomplishments as well as the shortcomings of the program in an
unbiased way. The program evaluation must have findings that give
decision-makers information which is of a level of detail and importance
to enable decisions to be made affecting either direction or operation.
The information in the program evaluation must be timely, and must
contain information of sufficient currency that decisions based on the
data in the
[[Page 15]]
evaluation can be made with a high degree of confidence in the data.
(f) Each program evaluation requires a systematic research design to
collect the data necessary to measure the objectives. This research
design should conform to the following:
(1) Rationale. The research design for each evaluation should
contain a specific rationale and should be structured to determine
possible cause and effect relationships.
(2) Relevancy. It must deal with issues currently existing within
the program, within the Department, and within the environment in which
the program operates.
(3) Validity. The degree of statistical validity should be assessed
within the research design. Alternatives include an assessment of cost
of data collection vs. results necessary to support decisions.
(4) Reliability. Use of the same research design by others should
yield the same findings.
(g) The final program evaluation report will be reviewed for
comments and concurrence by relevant organizations within the Department
of Veterans Affairs, but in no case should this review unreasonably
delay the results of the evaluation. Where disagreement exists, the
dissenting organization's position should be summarized for a decision
by the Secretary.
(h) The final program evaluation report will be forwarded, with
approved recommendations, to the concerned organization. An action plan
to accomplish the approved recommendations will be forwarded for
evaluation by the evaluating entity.
(i) Program evaluation results should be integrated to the maximum
extent possible into Department of Veterans Affairs plans and budget
submissions to ensure continuity with other Department of Veterans
Affairs management processes.
(Authority: 38 U.S.C. 527)
[47 FR 53735, Nov. 29, 1982, as amended at 54 FR 34980, Aug. 23, 1989]
Sec. 1.17 Evaluation of studies relating to health effects of
radiation exposure.
(a) From time to time, the Secretary shall publish evaluations of
scientific or medical studies relating to the adverse health effects of
exposure to ionizing radiation in the ``Notices'' section of the Federal
Register.
(b) Factors to be considered in evaluating scientific studies
include:
(1) Whether the study's findings are statistically significant and
replicable.
(2) Whether the study and its findings have withstood peer review.
(3) Whether the study methodology has been sufficiently described to
permit replication of the study.
(4) Whether the study's findings are applicable to the veteran
population of interest.
(5) The views of the appropriate panel of the Scientific Council of
the Veterans' Advisory Committee on Environmental Hazards.
(c) When the Secretary determines, based on the evaluation of
scientific or medical studies and after receiving the advice of the
Veterans' Advisory Committee on Environmental Hazards and applying the
reasonable doubt doctrine as set forth in paragraph (d)(1) of this
section, that a significant statistical association exists between any
disease and exposure to ionizing radiation, Sec. 3.311 of this chapter
shall be amended to provide guidelines for the establishment of service
connection.
(d)(1) For purposes of paragraph (c) of this section a significant
statistical association shall be deemed to exist when the relative
weights of valid positive and negative studies permit the conclusion
that it is at least as likely as not that the purported relationship
between exposure to ionizing radiation and a specific adverse health
effect exists.
(2) For purposes of this paragraph a valid study is one which:
(i) Has adequately described the study design and methods of data
collection, verification and analysis;
(ii) Is reasonably free of biases, such as selection, observation
and participation biases; however, if biases exist, the investigator has
acknowledged them and so stated the study's conclusions that the biases
do not intrude upon those conclusions; and
(iii) Has satisfactorily accounted for known confounding factors.
(3) For purposes of this paragraph a valid positive study is one
which satisfies the criteria in paragraph (d)(2) of
[[Page 16]]
this section and whose findings are statistically significant at a
probability level of .05 or less with proper accounting for multiple
comparisons and subgroup analyses.
(4) For purposes of this paragraph a valid negative study is one
which satisfies the criteria in paragraph (d)(2) of this section and has
sufficient statistical power to detect an association between exposure
to ionizing radiation and a specific adverse health effect if such an
association were to exist.
(e) For purposes of assessing the relative weights of valid positive
and negative studies, other studies affecting epidemiological
assessments including case series, correlational studies and studies
with insufficient statistical power as well as key mechanistic and
animal studies which are found to have particular relevance to an effect
on human organ systems may also be considered.
(f) Notwithstanding the provisions of paragraph (d) of this section,
a significant statistical association may be deemed to exist between
exposure to ionizing radiation and a specific disease if, in the
Secretary's judgment, scientific and medical evidence on the whole
supports such a decision.
(Authority: 38 U.S.C. 501; Pub. L. 98-542, as amended by Pub. L. 102-4)
[54 FR 40391, Oct. 2, 1989; 54 FR 46187, Nov. 1, 1989; 75 FR 17859, Apr.
8, 2010]
Sec. 1.18 Guidelines for establishing presumptions of service
connection for former prisoners of war.
(a) Purpose. The Secretary of Veterans Affairs will establish
presumptions of service connection for former prisoners of war when
necessary to prevent denials of benefits in significant numbers of
meritorious claims.
(b) Standard. The Secretary may establish a presumption of service
connection for a disease when the Secretary finds that there is at least
limited/suggestive evidence that an increased risk of such disease is
associated with service involving detention or internment as a prisoner
of war and an association between such detention or internment and the
disease is biologically plausible.
(1) Definition. The phrase ``limited/suggestive evidence'' refers to
evidence of a sound scientific or medical nature that is reasonably
suggestive of an association between prisoner-of-war experience and the
disease, even though the evidence may be limited because matters such as
chance, bias, and confounding could not be ruled out with confidence or
because the relatively small size of the affected population restricts
the data available for study.
(2) Examples. ``Limited/suggestive evidence'' may be found where one
high-quality study detects a statistically significant association
between the prisoner-of-war experience and disease, even though other
studies may be inconclusive. It also may be satisfied where several
smaller studies detect an association that is consistent in magnitude
and direction. These examples are not exhaustive.
(c) Duration of detention or internment. In establishing a
presumption of service connection under paragraph (b) of this section,
the Secretary may, based on sound scientific or medical evidence,
specify a minimum duration of detention or internment necessary for
application of the presumption.
(d) Association. The requirement in paragraph (b) of this section
that an increased risk of disease be ``associated'' with prisoner-of-war
service may be satisfied by evidence that demonstrates either a
statistical association or a causal association.
(e) Evidence. In making determinations under paragraph (b) of this
section, the Secretary will consider, to the extent feasible:
(1) Evidence regarding the increased incidence of disease in former
prisoners of war;
(2) Evidence regarding the health effects of circumstances or
hardships similar to those experienced by prisoners of war (such as
malnutrition, torture, physical abuse, or psychological stress);
(3) Evidence regarding the duration of exposure to circumstances or
hardships experienced by prisoners of war that is associated with
particular health effects; and
(4) Any other sound scientific or medical evidence the Secretary
considers relevant.
[[Page 17]]
(f) Evaluation of studies. In evaluating any study for the purposes
of this section, the Secretary will consider:
(1) The degree to which the study's findings are statistically
significant;
(2) The degree to which any conclusions drawn from the study data
have withstood peer review;
(3) Whether the methodology used to obtain the data can be
replicated;
(4) The degree to which the data may be affected by chance, bias, or
confounding factors; and
(5) The degree to which the data may be relevant to the experience
of prisoners of war in view of similarities or differences in the
circumstances of the study population.
(g) Contracts for Scientific Review and Analysis. To assist in
making determinations under this section, the Secretary may contract
with an appropriate expert body to review and summarize the scientific
evidence, and assess the strength thereof, concerning the association
between detention or internment as a prisoner of war and the occurrence
of any disease, or for any other purpose relevant to the Secretary's
determinations.
(Authority: 38 U.S.C. 501(a), 1110)
[69 FR 60089, Oct. 7, 2004]
Referrals of Information Regarding Criminal Violations
Sec. 1.200 Purpose.
This subpart establishes a duty upon and sets forth the mechanism
for VA employees to report information about actual or possible criminal
violations to appropriate law enforcement entities.
(Authority: 5 U.S.C. App. 3, 38 U.S.C. 902)
[68 FR 17550, Apr. 10, 2003]
Sec. 1.201 Employee's duty to report.
All VA employees with knowledge or information about actual or
possible violations of criminal law related to VA programs, operations,
facilities, contracts, or information technology systems shall
immediately report such knowledge or information to their supervisor,
any management official, or directly to the Office of Inspector General.
(Authority: 5 U.S.C. App. 3, 38 U.S.C. 902)
[68 FR 17550, Apr. 10, 2003]
Sec. 1.203 Information to be reported to VA Police.
Information about actual or possible violations of criminal laws
related to VA programs, operations, facilities, or involving VA
employees, where the violation of criminal law occurs on VA premises,
will be reported by VA management officials to the VA police component
with responsibility for the VA station or facility in question. If there
is no VA police component with jurisdiction over the offense, the
information will be reported to Federal, state or local law enforcement
officials, as appropriate.
(Authority: 38 U.S.C. 902)
[68 FR 17550, Apr. 10, 2003]
Sec. 1.204 Information to be reported to the Office of Inspector
General.
Criminal matters involving felonies will also be immediately
referred to the Office of Inspector General, Office of Investigations.
VA management officials with information about possible criminal matters
involving felonies will ensure and be responsible for prompt referrals
to the OIG. Examples of felonies include but are not limited to, theft
of Government property over $1000, false claims, false statements, drug
offenses, crimes involving information technology systems and serious
crimes against the person, i.e., homicides, armed robbery, rape,
aggravated assault and serious physical abuse of a VA patient.
(Authority: 5 U.S.C. App. 3)
[68 FR 17550, Apr. 10, 2003]
Sec. 1.205 Notification to the Attorney General or United States
Attorney's Office.
VA police and/or the OIG, whichever has primary responsibility
within VA for investigation of the offense in question, will be
responsible for notifying
[[Page 18]]
the appropriate United States Attorney's Office, pursuant to 28 U.S.C.
535.
(Authority: 5 U.S.C. App. 3, 38 U.S.C. 902)
[68 FR 17550, Apr. 10, 2003]
Security and Law Enforcement at Department of Veterans Affairs
Facilities
Sec. 1.218 Security and law enforcement at VA facilities.
(a) Authority and rules of conduct. Pursuant to 38 U.S.C. 901, the
following rules and regulations apply at all property under the charge
and control of VA (and not under the charge and control of the General
Services Administration) and to all persons entering in or on such
property. The head of the facility is charged with the responsibility
for the enforcement of these rules and regulations and shall cause these
rules and regulations to be posted in a conspicuous place on the
property.
(1) Closing property to public. The head of the facility, or
designee, shall establish visiting hours for the convenience of the
public and shall establish specific hours for the transaction of
business with the public. The property shall be closed to the public
during other than the hours so established. In emergency situations, the
property shall be closed to the public when reasonably necessary to
ensure the orderly conduct of Government business. The decision to close
a property during an emergency shall be made by the head of the facility
or designee. The head of the facility or designee shall have authority
to designate areas within a facility as closed to the public.
(2) Recording presence. Admission to property during periods when
such property is closed to the public will be limited to persons
authorized by the head of the facility or designee. Such persons may be
required to sign a register and/or display identification documents when
requested to do so by VA police, or other authorized individual. No
person, without authorization, shall enter upon or remain on such
property while the property is closed. Failure to leave such premises by
unauthorized persons shall constitute an offense under this paragraph.
(3) Preservation of property. The improper disposal of rubbish on
property; the spitting on the property; the creation of any hazard on
property to persons or things; the throwing of articles of any kind from
a building; the climbing upon the roof or any part of the building,
without permission; or the willful destruction, damage, or removal of
Government property or any part thereof, without authorization, is
prohibited. The destruction, mutilation, defacement, injury, or removal
of any monument, gravestone, or other structure within the limits of any
national cemetery is prohibited.
(4) Conformity with signs and emergency conditions. The head of the
facility, or designee, shall have authority to post signs of a
prohibitory and directory nature. Persons, in and on property, shall
comply with such signs of a prohibitory or directory nature, and during
emergencies, with the direction of police authorities and other
authorized officials. Tampering with, destruction, marring, or removal
of such posted signs is prohibited.
(5) Disturbances. Conduct on property which creates loud or unusual
noise; which unreasonably obstructs the usual use of entrances, foyers,
lobbies, corridors, offices, elevators, stairways, or parking lots;
which otherwise impedes or disrupts the performance of official duties
by Government employees; which prevents one from obtaining medical or
other services provided on the property in a timely manner; or the use
of loud, abusive, or otherwise improper language; or unwarranted
loitering, sleeping, or assembly is prohibited. In addition to measures
designed to secure voluntary terminations of violations of this
paragraph the head of the facility or designee may cause the issuance of
orders for persons who are creating a disturbance to depart the
property. Failure to leave the premises when so ordered constitutes a
further disturbance within the meaning of this rule, and the offender is
subject to arrest and removal from the premises.
(6) Gambling. Participating in games for money or for tangible or
intangible things, or the operating of gambling devices, the conduct of
a lottery or pool, or the selling or purchasing of
[[Page 19]]
numbers tickets, in or on property is prohibited.
(7) Alcoholic beverages and narcotics. Operating a motor vehicle on
property by a person under the influence of alcoholic beverages,
narcotic drugs, hallucinogens, marijuana, barbiturates, or amphetamines
is prohibited. Entering property under the influence of any narcotic
drug, hallucinogen, marijuana, barbiturate, amphetamine, or alcoholic
beverage (unless prescribed by a physician) is prohibited. The use on
property of any narcotic drug, hallucinogen, marijuana, barbiturate, or
amphetamine (unless prescribed by a physician) is prohibited. The
introduction or possession of alcoholic beverages or any narcotic drug,
hallucinogen, marijuana, barbiturate, and amphetamine on property is
prohibited, except for liquor or drugs prescribed for use by medical
authority for medical purposes. Provided such possession is consistent
with the laws of the State in which the facility is located, liquor may
be used and maintained in quarters assigned to employees as their normal
abode, and away from the abode with the written consent of the head of
the facility which specifies a special occasion for use and limits the
area and period for the authorized use.
(8) Soliciting, vending, and debt collection. Soliciting alms and
contributions, commercial soliciting and vending of all kinds,
displaying or distributing commercial advertising, or collecting private
debts in or on property is prohibited. This rule does not apply to (i)
national or local drives for funds for welfare, health, or other
purposes as authorized under Executive Order 12353, Charitable Fund
Raising (March 23, 1982), as amended by Executive Order 12404 (February
10, 1983), and regulations issued by the Office of Personnel Management
implementing these Executive Orders; (ii) concessions or personal
notices posted by employees on authorized bulletin boards; and (iii)
solicitation of labor organization membership or dues under 5 U.S.C.
chapter 71.
(9) Distribution of handbills. The distributing of materials such as
pamphlets, handbills, and/or flyers, and the displaying of placards or
posting of materials on bulletin boards or elsewhere on property is
prohibited, except as authorized by the head of the facility or designee
or when such distributions or displays are conducted as part of
authorized Government activities.
(10) Photographs for news, advertising, or commercial purposes.
Photographs for advertising or commercial purposes may be taken only
with the written consent of the head of the facility or designee.
Photographs for news purposes may be taken at entrances, lobbies,
foyers, or in other places designated by the head of the facility or
designee.
(11) Animals. (i) Service animals, as defined in paragraph
(a)(11)(viii) of this section, are permitted on VA property when those
animals accompany individuals with disabilities and are trained for that
purpose. A service animal shall be under the control of the person with
the disability or an alternate handler at all times while on VA
property. A service animal shall have a harness, leash, or other tether,
unless either the handler is unable because of a disability to use a
harness, leash, or other tether, or the use of a harness, leash, or
other tether would interfere with the service animal's safe, effective
performance of work or tasks, in which case the service animal must be
otherwise under the handler's control (e.g., voice control, signals, or
other effective means). VA is not responsible for the care or
supervision of a service animal. Service animal presence on VA property
is subject to the same terms, conditions, and regulations as generally
govern admission of the public to the property.
(ii) A service animal will be denied access to VA property or
removed from VA property if:
(A) The animal is not under the control of the individual with a
disability or an alternate handler;
(B) The animal is not housebroken. The animal must be trained to
eliminate its waste in an outdoor area; or
(C) The animal otherwise poses a risk to the health or safety of
people or other service animals. In determining whether an animal poses
a risk to the health or safety of people or other service animals, VA
will make an individualized assessment based on objective
[[Page 20]]
indications to ascertain the severity of the risk. Such indications
include but are not limited to:
(1) External signs of aggression from the service animal, such as
growling, biting or snapping, baring its teeth, lunging; or
(2) External signs of parasites on the service animal (e.g. fleas,
ticks), or other external signs of disease or bad health (e.g. diarrhea
or vomiting).
(iii) Service animals will be restricted from accessing certain
areas of VA property under the control of the Veterans Health
Administration (VHA properties) to ensure patient care, patient safety,
or infection control standards are not compromised. Such areas include
but are not limited to:
(A) Operating rooms and surgical suites;
(B) Areas where invasive procedures are being performed;
(C) Acute inpatient hospital settings when the presence of the
service animal is not part of a documented treatment plan;
(D) Decontamination, sterile processing, and sterile storage areas;
(E) Food preparation areas (not to include public food service
areas); and
(F) Any areas where personal protective clothing must be worn or
barrier protective measures must be taken to enter.
(iv) Service animals will be restricted from accessing certain areas
of VA property under the control of the National Cemetery Administration
(NCA properties) to ensure that public safety, facilities and grounds
care, and maintenance control are not compromised. Such areas include
but are not limited to:
(A) Open interment areas, except as approved to observe an
individual interment or inurnment.
(B) Construction or maintenance sites; and
(C) Grounds keeping and storage facilities.
(v) If a service animal is denied access to VA property or removed
from VA property in accordance with (a)(11)(ii) of this section, or
restricted from accessing certain VA property in accordance with
paragraphs (a)(11)(iii) and (iv) of this section, then VA will give the
individual with a disability the opportunity to obtain services without
having the service animal on VA property.
(vi) Unless paragraph (a)(11)(vii) of this section applies, an
individual with a disability must not be required to provide
documentation, such as proof that an animal has been certified, trained,
or licensed as a service animal, to gain access to VA property
accompanied by the service animal. However, an individual may be asked
if the animal is required because of a disability, and what work or task
the animal has been trained to perform.
(vii) An individual with a disability, if such individual will be
accompanied by the service animal while receiving treatment in a VHA
residential program, must provide VA with documentation that confirms
the service animal has had a current rabies vaccine as determined by
state and local public health requirements, and current core canine
vaccines as dictated by local veterinary practice standards (e.g.
distemper, parvovirus, and adenovirus-2).
(viii) A service animal means any dog that is individually trained
to do work or perform tasks for the benefit of an individual with a
disability, including a physical, sensory, psychiatric, intellectual, or
other mental disability. Other species of animals, whether wild or
domestic, trained or untrained, are not service animals for the purposes
of this definition. The work or tasks performed by a service animal must
be directly related to the individual's disability. The crime deterrent
effects of an animal's presence and the provision of emotional support,
well-being, comfort, or companionship do not constitute work or tasks
for the purposes of this definition. Service dogs in training are not
considered service animals. This definition applies regardless of
whether VA is providing benefits to support a service dog under 38 CFR
17.148.
(ix) Generally, animals other than service animals (``non-service
animals'') are not permitted to be present on VA property, and any
individual with a non-service animal must remove it. However, a VA
facility head or designee may permit certain non-service
[[Page 21]]
animals to be present on VA property for the following reasons:
(A) Animals may be permitted to be present on VA property for law
enforcement purposes;
(B) Animals under the control of the VA Office of Research and
Development may be permitted to be present on VA property;
(C) Animal-assisted therapy (AAT) animals may be permitted to be
present on VHA property when the presence of such animals would not
compromise patient care, patient safety, or infection control standards.
AAT is a goal-directed clinical intervention, as provided or facilitated
by a VA therapist or VA clinician, that incorporates the use of an
animal into the treatment regimen of a patient. Any AAT animal present
on VHA property must facilitate achievement of patient-specific
treatment goals, as documented in the patient's treatment plan. AAT
animals must be up to date with all core vaccinations or immunizations,
prophylactic parasite control medications, and regular health screenings
as determined necessary by a licensed veterinarian consistent with local
veterinary practice standards. Proof of compliance with these
requirements must be documented and accessible in the area(s) where
patients receive AAT.
(D) Animal-assisted activity (AAA) animals may be permitted to be
present on VHA property when the presence of such animals would not
compromise patient care, patient safety, or infection control standards.
AAA involves animals in activities to provide patients with casual
opportunities for motivational, educational, recreational, and/or
therapeutic benefits. AAA is not a goal-directed clinical intervention
that must be provided or facilitated by a VA therapist or clinician, and
therefore is not necessarily incorporated into the treatment regimen of
a patient or documented in the patient's medical record as treatment.
AAA animals must be up to date with all core vaccinations or
immunizations, prophylactic parasite control medications, and regular
health screenings as determined necessary by a licensed veterinarian
consistent with local veterinary practice standards. Proof of compliance
with these requirements must be documented and accessible in the area(s)
where patients may participate in AAA.
(E) Animals participating in a VA Community Living Center (CLC)
residential animal program or a Mental Health Residential Rehabilitation
Treatment Program (MHRRTP) may be permitted to be present on VHA
property, when the presence of such animals would not compromise patient
care, patient safety, or infection control standards. A residential
animal program in a VA CLC or a MHRRTP is a program that uses the
presence of animals to create a more homelike environment to foster
comfort for veterans, while also stimulating a sense of purpose,
familiarity, and belonging. Any VA CLC or MHRRTP residential animal
present on VHA property must facilitate achievement of therapeutic
outcomes (such as described above), as documented in patient treatment
plans. Residential animals in a VA CLC or MHRRTP must be up to date with
all core vaccinations and immunizations, prophylactic parasite control
medications, and regular health screenings as determined necessary by a
licensed veterinarian consistent with local veterinary practice
standards. Proof of compliance with these requirements must be
documented and accessible in the VA CLC or MHRRTP.
(F) Animals may be present on NCA property for ceremonial purposes
during committal services, interments, and other memorials, if the
presence of such animals would not compromise public safety, facilities
and grounds care, and maintenance control standards.
(x) For purposes of this section, a disability means, with respect
to an individual, a physical or mental impairment that substantially
limits one or more major life activities of the individual; a record of
such an impairment; or being regarded as having such an impairment.
(12) Vehicular and pedestrian traffic. Drivers of all vehicles in or
on property shall drive in a careful and safe manner at all times and
shall comply with the signals and directions of police and all posted
traffic signs. The blocking of entrances, driveways, walks, loading
platforms, or fire hydrants in or on
[[Page 22]]
property is prohibited; parking in unauthorized locations or in
locations reserved for other persons or contrary to the direction of
posted signs is prohibited. Creating excessive noise on hospital or
cemetery premises by muffler cut out, the excessive use of a horn, or
other means is prohibited. Operation of a vehicle in a reckless or
unsafe manner, drag racing, bumping, overriding curbs, or leaving the
roadway is prohibited.
(13) Weapons and explosives. No person while on property shall carry
firearms, other dangerous or deadly weapons, or explosives, either
openly or concealed, except for official purposes.
(14) Demonstrations. (i) All visitors are expected to observe proper
standards of decorum and decency while on VA property. Toward this end,
any service, ceremony, or demonstration, except as authorized by the
head of the facility or designee, is prohibited. Jogging, bicycling,
sledding and other forms of physical recreation on cemetery grounds is
prohibited.
(ii) For the purpose of the prohibition expressed in this paragraph,
unauthorized demonstrations or services shall be defined as, but not
limited to, picketing, or similar conduct on VA property; any oration or
similar conduct to assembled groups of people, unless the oration is
part of an authorized service; the display of any placards, banners, or
foreign flags on VA property unless approved by the head of the facility
or designee; disorderly conduct such as fighting, threatening, violent,
or tumultuous behavior, unreasonable noise or coarse utterance, gesture
or display or the use of abusive language to any person present; and
partisan activities, i.e., those involving commentary or actions in
support of, or in opposition to, or attempting to influence, any current
policy of the Government of the United States, or any private group,
association, or enterprise.
(15) Key security. The head of the facility of designee, will
determine which employees, by virtue of their duties, shall have access
to keys or barrier-card keys which operate locks to rooms or areas on
the property. The unauthorized possession, manufacture, and/or use of
such keys or barrier cards is prohibited. The surreptitious opening or
attempted opening of locks or card-operated barrier mechanisms is
prohibited.
(16) Sexual misconduct. Any act of sexual gratification on VA
property involving two or more persons, who do not reside in quarters on
the property, is prohibited. Acts of prostitution or solicitation for
acts of prostitution on VA property is prohibited. For the purposes of
this paragraph, an act of prostitution is defined as the performance or
the offer or agreement to perform any sexual act for money or payment.
(b) Schedule of offenses and penalties. Conduct in violation of the
rules and regulations set forth in paragraph (a) of this section
subjects an offender to arrest and removal from the premises. Whomever
shall be found guilty of violating these rules and regulations while on
any property under the charge and control of VA is subject to a fine as
stated in the schedule set forth herein or, if appropriate, the payment
of fixed sum in lieu of appearance (forfeiture of collateral) as may be
provided for in rules of the United States District Court. Violations
included in the schedule of offenses and penalties may also subject an
offender to a term of imprisonment of not more than six months, as may
be determined appropriate by a magistrate or judge of the United States
District Court:
(1) Improper disposal of rubbish on property, $200.
(2) Spitting on property, $25.
(3) Throwing of articles from a building or the unauthorized
climbing upon any part of a building, $50.
(4) Willful destruction, damage, or removal of Government property
without authorization, $500.
(5) Defacement, destruction, mutilation or injury to, or removal, or
disturbance of, gravemarker or headstone, $500.
(6) Failure to comply with signs of a directive and restrictive
nature posted for safety purposes, $50.
(7) Tampering with, removal, marring, or destruction of posted
signs, $150.
(8) Entry into areas posted as closed to the public or others
(trespass), $50.
(9) Unauthorized demonstration or service in a national cemetery or
on other VA property, $250.
[[Page 23]]
(10) Creating a disturbance during a burial ceremony, $250.
(11) Disorderly conduct which creates loud, boisterous, and unusual
noise, or which obstructs the normal use of entrances, exits, foyers,
offices, corridors, elevators, and stairways or which tends to impede or
prevent the normal operation of a service or operation of the facility,
$250.
(12) Failure to depart premises by unauthorized persons, $50.
(13) Unauthorized loitering, sleeping or assembly on property, $50.
(14) Gambling-participating in games of chance for monetary gain or
personal property; the operation of gambling devices, a pool or lottery;
or the taking or giving of bets, $200.
(15) Operation of a vehicle under the influence of alcoholic
beverages or nonprescribed narcotic drugs, hallucinogens, marijuana,
barbiturates, or amphetamines, $500.
(16) Entering premises under the influence of alcoholic beverages or
narcotic drugs, hallucinogens, marijuana, barbiturates or amphetamines,
$200.
(17) Unauthorized use on property of alcoholic beverages or narcotic
drugs, hallucinogens, marijuana, barbiturates, or amphetamines, $300.
(18) Unauthorized introduction on VA controlled property of
alcoholic beverages or narcotic drugs, hallucinogens, marijuana,
barbiturates, or amphetamines or the unauthorized giving of same to a
patient or beneficiary, $500.
(19) Unauthorized solicitation of alms and contributions on
premises, $50.
(20) Commercial soliciting or vending, or the collection of private
debts on property, $50.
(21) Distribution of pamphlets, handbills, and flyers, $25.
(22) Display of placards or posting of material on property, $25.
(23) Unauthorized photography on premises, $50.
(24) Failure to comply with traffic directions of VA police, $25.
(25) Parking in spaces posted as reserved for physically disabled
persons, $50.
(26) Parking in no-parking areas, lanes, or crosswalks so posted or
marked by yellow borders or yellow stripes, $25.
(27) Parking in emergency vehicle spaces, areas and lanes bordered
in red or posted as EMERGENCY VEHICLES ONLY or FIRE LANE, or parking
within 15 feet of a fire hydrant, $50.
(28) Parking within an intersection or blocking a posted vehicle
entrance or posted exit lane, $25.
(29) Parking in spaces posted as reserved or in excess of a posted
time limit, $15.
(30) Failing to come to a complete stop at a STOP sign, $25.
(31) Failing to yield to a pedestrian in a marked and posted
crosswalk, $25.
(32) Driving in the wrong direction on a posted one-way street, $25.
(33) Operation of a vehicle in a reckless or unsafe manner, too fast
for conditions, drag racing, overriding curbs, or leaving the roadway,
$100.
(34) Exceeding posted speed limits:
(i) By up to 10 mph, $25.
(ii) By up to 20 mph, $50.
(iii) By over 20 mph, $100.
(35) Creating excessive noise in a hospital or cemetery zone by
muffler cut out, excessive use of a horn, or other means, $50.
(36) Failure to yield right of way to other vehicles, $50.
(37) Possession of firearms, carried either openly or concealed,
whether loaded or unloaded (except by Federal or State law enforcement
officers on official business, $500.
(38) Introduction or possession of explosives, or explosive devices
which fire a projectile, ammunition, or combustibles, $500.
(39) Possession of knives which exceed a blade length of 3 inches;
switchblade knives; any of the variety of hatchets, clubs and hand-held
weapons; or brass knuckles, $300.
(40) The unauthorized possession of any of the variety of
incapacitating liquid or gas-emitting weapons, $200.
(41) Unauthorized possession, manufacture, or use of keys or barrier
card-type keys to rooms or areas on the property, $200.
(42) The surreptitious opening, or attempted opening, of locks or
card-operated barrier mechanisms on property, $500.
(43) Soliciting for, or the act of, prostitution, $250.
[[Page 24]]
(44) Any unlawful sexual activity, $250.
(45) Jogging, bicycling, sledding or any recreational physical
activity conducted on cemetery grounds, $50.
(c) Enforcement procedures. (1) VA administration directors will
issue policies and operating procedures governing the proper exercise of
arrest and other law enforcement actions, and limiting the carrying and
use of weapons by VA police officers. VA police officers found qualified
under respective VA administration directives and duly appointed heads
of facilities for the purposes of 38 U.S.C. 902(b)(1), will enforce
these rules and regulations and other Federal laws on VA property in
accordance with the policies and operating procedures issued by
respective VA administration directors and under the direction of the
head of the facility.
(2) VA administration directors will prescribe training for VA
police officers of the scope and duration necessary to assure the proper
exercise of the law enforcement and arrest authority vested in them and
to assure their abilities in the safe handling of situations involving
patients and the public in general. VA police officers will successfully
complete prescribed training in law enforcement procedures and the safe
handling of patients as a condition of their retention of statutory law
enforcement and arrest authority.
(3) Nothing contained in the rules and regulations set forth in
paragraph (a) of this section shall be construed to abrogate any other
Federal laws or regulations, including assimilated offenses under 18
U.S.C. 13, or any State or local laws and regulations applicable to the
area in which the property is situated.
[50 FR 29226, July 18, 1985, as amended at 80 FR 49162, Aug. 17, 2015]
Sec. 1.220 On-site activities by pharmaceutical company
representatives at VA medical facilities.
(a) Scope. This rule governs on-site, in-person promotional
activities, including educational activities, by pharmaceutical company
representatives at VA medical facilities. It does not apply to the
distribution of information and materials through other means.
(b) Definitions. For the purposes of this section:
Criteria-for-use means clinical criteria developed by the Department
of Veterans Affairs (VA) at a National level that describe how certain
drugs may be used. VA's criteria-for-use are available to the public at
www.pbm.va.gov. Exceptions may be applied at the local level for
operational reasons.
Drug or drugs means:
(1) Articles recognized in the official United States Pharmacopoeia,
official Homeopathic Pharmacopoeia of the United States, official
National Formulary, or any supplement to any of them;
(2) Articles intended for use in the diagnosis, cure, mitigation,
treatment, or prevention of disease in man or other animals;
(3) Articles (other than food) intended to affect the structure or
any function of the body of man or other animals; and
(4) Articles intended for use as a component of any article
specified in paragraphs (1), (2), or (3) of this definition.
Drug-related supplies means supplies related to the use of a drug,
such as test strips or testing devices, inhalers, spacers, insulin
syringes, and tablet splitters.
New molecular entity refers to a drug product containing an active
ingredient that has never before received U.S. Food and Drug
Administration approval.
Non-promotable drugs are drugs designated by VA as non-promotable on
http://www.pbm.va.gov. A list of the drugs or drug-related supplies
classified by VA as non-promotable may be requested by contacting the VA
medical facility's Chief of Pharmacy Services.
Non-VANF drugs or drug-related supplies means drugs or drug-related
supplies that do not appear on the VANF.
Pharmaceutical company representative means any individual employed
by or contracted to represent a pharmaceutical manufacturer or retailer.
VA medical facility means any property under the charge and control
of VA used to provide medical benefits, including Community-Based
Outpatient Clinics and similar facilities.
[[Page 25]]
VA National Formulary (VANF) drugs and/or drug-related supplies
means any drug or drug-related supply that appears on the VA National
Formulary (VANF). The VANF is available at www.pbm.va.gov, or may be
requested by contacting the VA medical facility's Chief of Pharmacy
Services.
Veterans Integrated Service Network (VISN) means one of the networks
of VA medical facilities located in a particular region as designated by
VA.
(c) Promotion of drugs and drug-related supplies. Notwithstanding
Sec. 1.218(a)(8), VA will allow promotion of VANF drugs and drug-related
supplies, and non-VANF drugs and drug-related supplies with criteria-
for-use, on-site and in-person at VA medical facilities if all of the
following are true:
(1) Drugs or drug-related supplies are discussed, displayed and
represented accurately;
(2) The promotion has significant educational value and does not
inappropriately divert VA staff from other activities that VA staff
would otherwise perform during duty hours, including patient care and
other educational activities; and
(3) The drug or drug-related supply has not been classified by VA as
non-promotable.
(d) Promotion of non-VANF drugs and drug-related supplies without
criteria-for-use. Non-VANF drugs and drug-related supplies without
criteria-for-use may be promoted only if the requirements of paragraphs
(c)(1) through (3) of this section are met and the promotion is
specifically permitted by the VISN Pharmacist Executive, or Chief of
Pharmacy Services, or designee.
(e) Promotion of a new molecular entity. A new molecular entity may
be promoted only if the requirements of paragraphs (c)(1) through (3) of
this section are met and the promotion is specifically permitted by the
VISN Pharmacist Executive, or Chief of Pharmacy Services, or designee.
Such permission will be automatically revoked if the new molecular
entity is subsequently designated non-promotable. Such permission must
be reconsidered if the new molecular entity is denied VANF status.
(f) Educational programs and associated materials. For purposes of
this section, an educational program is a pre-scheduled event or meeting
during which a pharmaceutical company representative provides
information about a drug or drug-related supply. All educational
programs and associated materials must receive prior approval from the
person at the VA medical facility to whom such approval authority has
been delegated under local policy, usually the Chief of Pharmacy
Services. All materials associated with a proposed educational program
must be provided at least 60 days before the proposed date of the
educational program or distribution of associated materials, unless VA
agrees in an individual case to a different date, so that a
determination of their suitability can be made. The approval authority
will deem suitable any educational program and associated materials if
it is part of a risk evaluation and mitigation strategy or other duty
imposed by the Food and Drug Administration. Otherwise, educational
programs and associated materials will be deemed suitable if the
approval authority determines that they conform to the following
requirements:
(1) Industry sponsorship must be disclosed in the introductory
remarks and in the announcement brochure. Sponsorship includes any
contribution, whether in the form of staple goods, personnel, or
financing, intended to support the educational program.
(2) If industry-sponsored and non-sponsored sources of data or other
analytical information exist for FDA-approved uses of a particular drug,
a direct comparison between the two sources must be disclosed in the
introductory remarks and in the announcement brochure.
(3) The educational program does not solicit protected health
information or patient participation in pharmaceutical company-sponsored
programs, except as may be required by Federal laws and regulations such
as an educational program that is part of a risk evaluation and
mitigation strategy required by the Food and Drug Administration.
(4) Patient educational materials must not contain the name or logo
of the pharmaceutical manufacturer or be
[[Page 26]]
used for promotion of a specific medication, unless the VA Pharmacy
Benefits Management Service determines that the logo or name is
inconspicuous and legal requirements (e.g., trademark requirements) make
their removal impractical. However, this requirement does not apply to
labeling required by the Food and Drug Administration.
(5) Educational programs and associated materials regarding a drug,
drug-related supply, or a new therapeutic indication for a drug that is
already on the VANF but has not yet been reviewed by VA, must be
submitted by the pharmaceutical company or pharmaceutical company
representative to the VA medical facility's Chief of Pharmacy Services
or designee.
(6) Educational programs and associated materials focusing primarily
on non-VANF drugs or drug-related supplies without criteria-for-use are
permitted only if those drugs or drug-related supplies may be promoted
under paragraph (d) of this section.
(g) Providing gifts, drugs or other promotional items to VA
employees or facilities--(1) General. No pharmaceutical company
representative may give, and no VA employee may receive, any item
(including but not limited to promotional materials, continuing
education materials, textbooks, entertainment, and gratuities) that
exceeds the value permissible for acceptance under government ethical
rules (5 CFR 2635.204(a)). However, such items may be donated to a
medical center library or individual department for use by all
employees, in accordance with medical center policy. Gifts in support of
VA staff official travel may be accepted by the Department subject to
advance legal review in accordance with 31 U.S.C. 1353, 41 CFR part 304,
and VA policy regarding such gifts.
(2) Samples of drugs and drug-related supplies. Pharmaceutical
company representatives must submit samples of drugs and drug-related
supplies for approval to the person at the medical facility to whom such
responsibility is delegated under local policy, usually the Director.
All usage information pertaining to these drugs or drug-related supplies
must be forwarded to the VISN Pharmacist Executive or VISN Formulary
Committee. All samples of drugs or drug-related supplies must be
delivered to the Office of the Chief of Pharmacy Services for proper
storage, documentation and dispensing. Drug or drug-related supply
samples may not be provided to VA staff for their personal use.
(3) Donations of food. Pharmaceutical company representatives may
not provide food items of any type or any value to VA staff (including
volunteers and without compensation employees) or bring food items into
VA medical facilities for use by non-VA staff (e.g., employees of
affiliates).
(h) Conduct of pharmaceutical company representatives. In addition
to the other provisions in this section, pharmaceutical company
representatives must conform to the following:
(1) Contacts must be by appointment only. In order to minimize the
potential for disruption of patient care activities, a pharmaceutical
company representative must schedule an appointment before each visit.
Access to VA medical facilities by a pharmaceutical company
representative without an appointment is not permitted under any
circumstances. VA medical facilities may develop a list of individuals
or departments that may not be called-on by pharmaceutical company
representatives. A pharmaceutical company representative must not
attempt to make appointments with, or leave any materials for,
individuals or departments on the list. The list may be obtained at the
VA medical facility office of the Chief of Pharmacy Services. A
pharmaceutical company representative visiting a VA medical facility for
a scheduled appointment may not leave promotional materials for, or
initiate requests for meetings with, other VA staff; however,
pharmaceutical company representatives may respond to requests initiated
by VA staff during the visit.
(2) Paging VA employees. A pharmaceutical company representative may
not use the public address (paging) system to locate any VA employee.
Contacts using the electronic paging system (beepers) are permissible
only if specifically requested by the VA employee.
[[Page 27]]
(3) Marketing to students. Pharmaceutical company representatives
are prohibited from marketing to medical, pharmacy, nursing and other
health profession students, including residents. Exceptions may be
permitted when approved by, and conducted in the presence of, the staff
member providing clinical supervision.
(4) Attendance at conferences. A pharmaceutical company
representative may not attend a medical center conference where
information regarding individual patients is discussed or presented.
(5) Patient care areas. Pharmaceutical company representatives
generally may not wait for scheduled appointments or make presentations
in patient-care areas, but may briefly travel through them, when
necessary, to meet in a staff member's office. Patient-care areas
include, but are not limited to:
(i) Patient rooms and ward areas where patients may be encountered;
(ii) Clinic examination rooms;
(iii) Nurses stations;
(iv) Intensive care units;
(v) Operating room suites;
(vi) Urgent care centers;
(vii) Emergency rooms (but not staff offices that may be located in
them); or
(viii) Ambulatory treatment centers.
(6) Distribution of materials. Pharmaceutical company
representatives may only distribute materials on-site at the time and
location of a scheduled appointment or educational program. In no
circumstances may materials be left in patient care areas.
(i) Non-compliance. (1) General. The visiting privileges of a
pharmaceutical company representative or multiple representatives may be
limited, suspended, or revoked by the written order of the Director of
the VA medical center of jurisdiction if the Director determines the
pharmaceutical company representative(s) failed to comply with the
requirements of this section.
(2) Notice of interim action. The Director will notify the
pharmaceutical company representative of the noncompliance and of the
Director's interim action under paragraph (i)(4) of this section. The
Director will also notify the supervisor of the pharmaceutical company
representative(s) if there have been multiple instances of misconduct.
The notice will offer 30 days to provide a response; however, the
interim action will be enforced effective the date of the notice.
(3) Final written order. At the end of the 30-day period for a
response, or after the Director receives a timely response, the Director
will issue to the pharmaceutical company representative and supervisor a
final written order either confirming the action taken as indicated in
the notice, or specifying another action to be taken under paragraph
(i)(4) of this section. The written order may also state that the
Director has determined that no further action is required. Any final
written order issued by the Director shall include a summary of the
circumstances of the violation, a listing of the specific provisions of
this section that the pharmaceutical company representative(s) violated,
and the bases for the Director's determination regarding the appropriate
action. Notice concerning a final written order suspending or
permanently revoking the visiting privileges of multiple pharmaceutical
company representatives shall include specific notice concerning the
right to review of the Director's order by the Under Secretary for
Health.
(4) Actions. Actions that may be imposed under this section include
limitation, suspension, or permanent revocation of visiting privileges
at one or more VA medical facilities. In determining the appropriate
action, the Director shall consider the requirements of this section,
the circumstances of the improper conduct, any prior acts of misconduct
by the same pharmaceutical company representative, any response
submitted by the pharmaceutical company representative or their
supervisor under paragraph (i)(2) of this section, and any prior written
orders issued or other actions taken with respect to similar acts of
misconduct.
(5) Review. The pharmaceutical company may request the Under
Secretary's review within 30 days of the date of the Director's final
written order by submitting a written request to the Director. The
Director shall forward the initial notice, any response, the final
written order, and the request
[[Page 28]]
for review to the Under Secretary for a final VA decision. VA will
enforce the Director's final written order while it is under review by
the Under Secretary. The Director will provide the individual who made
the request written notice of the Under Secretary's decision.
(Authority: 38 U.S.C. 501)
[77 FR 13007, Mar. 5, 2012]
Parking Fees at VA Medical Facilities
Sec. 1.300 Purpose.
Sections 1.300 through 1.303 prescribe policies and procedures for
establishing parking fees for the use of Department of Veterans Affairs
controlled parking spaces at VA medical facilities.
(Authority: 38 U.S.C. 501, 8109)
[53 FR 25490, July 7, 1988]
Sec. 1.301 Definitions.
As used in Secs. 1.300 through 1.303 of this title:
(a) Secretary means the Secretary of Veterans Affairs.
(b) Eligible person means any individual to whom the Secretary is
authorized to furnish medical examination or treatment.
(c) Garage means a structure or part of a structure in which
vehicles may be parked.
(d) Medical facility means any facility or part thereof which is
under the jurisdiction of the Secretary for the provision of health-care
services, including any necessary buildings and structures, garage or
parking facility.
(e) Parking facilities includes all surface and garage parking
spaces at a VA medical facility.
(f) Volunteer worker means an individual who performs services,
without compensation, under the auspices of VA Voluntary Service (VAVS)
at a VA medical facility, for the benefit of veterans receiving care at
that medical facility.
(Authority: 38 U.S.C. 8109)
[53 FR 25490, July 7, 1988]
Sec. 1.302 Applicability and scope.
(a) The provisions of Secs. 1.300 through 1.303 apply to VA medical
facility parking facilities in the United States, its territories and
possessions, and the Commonwealth of Puerto Rico, and to such parking
facilities for the use of VA medical facilities jointly shared by VA and
another Federal agency when the facility is operated by the VA. Sections
1.300 through 1.303 apply to all users of those parking facilities. Fees
shall be assessed and collected at medical facilities where parking
garages are constructed, acquired, or altered at a cost exceeding
$500,000 (or, in the case of acquisition by lease, $100,000 per year).
The Secretary, in the exercise of official discretion, may also
determine that parking fees shall be charged at any other VA medical
facility.
(b) All fees established shall be reasonable under the circumstances
and shall cover all parking facilities used in connection with such VA
medical facility.
(Authority: 38 U.S.C. 8109)
[53 FR 25490, July 7, 1988]
Sec. 1.303 Policy.
(a) General. Parking spaces at VA medical facilities shall only be
provided under the following conditions:
(1) VA and its employees shall not be liable for any damages to
vehicles (or their contents) parked in VA parking facilities, unless
such damages are directly caused by such employees acting in the course
of their VA employment.
(2) Parking facilities at VA medical facilities shall only be made
available at each medical facility for such periods and under such terms
as prescribed by the facility director, consistent with Secs. 1.300
through 1.303.
(3) VA will limit parking facilities at VA medical facilities to the
minimum necessary, and administer those parking facilities in full
compliance with ridesharing regulations and Federal laws.
(b) Fees. (1) As provided in Sec. 1.302, VA will assess VA
employees, contractor employees, tenant employees, visitors, and other
individuals having business at a VA medical facility where VA parking
facilities are available, a parking fee for the use of that parking
facility. All parking fees shall be set at a rate which shall be
equivalent to one-half of the appropriate fair rental value
[[Page 29]]
(i.e., monthly, weekly, daily, hourly) for the use of equivalent
commercial space in the vicinity of the medical facility, subject to the
terms and conditions stated in paragraph (a) of this section. Fair
rental value shall include an allowance for the costs of management of
the parking facilities. The Secretary will determine the fair market
rental value through use of generally accepted appraisal techniques. If
the appraisal establishes that there is no comparable commercial rate
because of the absence of commercial parking facilities within a two-
mile radius of the medical facility, then the rate established shall be
not less than the lowest rate charged for parking at the VA medical
facility with the lowest established parking fees. Rates established
shall be reviewed biannually by the Secretary to reflect any increase or
decrease in value as determined by appraisal updating.
(2) No parking fees shall be established or collected for parking
facilities used by or for vehicles of the following:
(i) Volunteer workers in connection with such workers performing
services for the benefit of veterans receiving care at the medical
facility;
(ii) A veteran or an eligible person in connection with such veteran
or eligible person receiving examination or treatment;
(iii) An individual transporting a veteran or eligible person
seeking examination or treatment; and
(iv) Federal Government employees using Government owned or leased
or private vehicles for official business.
(Authority: 38 U.S.C. 8109)
[53 FR 25490, July 7, 1988]
Release of Information From Department of Veterans Affairs (VA) Records
Relating to Drug Abuse, Alcoholism or Alcohol Abuse, Infection With the
Human Immunodeficiency Virus (HIV), or Sickle Cell Anemia
Note: Sections 1.460 through 1.499 of this part concern the
confidentiality of information relating to drug abuse, alcoholism or
alcohol abuse, infection with the human immunodeficiency virus, or
sickle cell anemia in VA records and are applicable in combination with
other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal
Regulations, implement the provisions of 38 U.S.C. Secs. 5701 and 5702.
Sections 1.550 through 1.559 implement the provisions of 5 U.S.C.
Sec. 552 (The Freedom of Information Act). Sections 1.575 through 1.584
implement the provisions of 5 U.S.C. Sec. 552a (The Privacy Act of
1974).
The provisions of Secs. 1.460 through 1.499 of this part pertain to
any program or activity, including education, treatment, rehabilitation
or research, which relates to drug abuse, alcoholism or alcohol abuse,
infection with the human immunodeficiency virus, or sickle cell anemia.
The statutory authority for the drug abuse provisions and alcoholism or
alcohol abuse provisions of Secs. 1.460 through 1.499 is Sec. 111 of
Pub. L. 94-581, the Veterans Omnibus Health Care Act of 1976 (38 U.S.C.
Secs. 7331 through 7334), the authority for the human immunodeficiency
virus provisions is Sec. 121 of Pub. L. 100-322, the Veterans' Benefits
and Services Act of 1988 (38 U.S.C. Sec. 7332); the authority for the
sickle cell anemia provisions is Sec. 109 of Pub. L. 93-82, the Veterans
Health Care Expansion Act of 1973 (38 U.S.C. Secs. 1751-1754).
Authority: 38 U.S.C. 1751-1754 and 7331-7334.
Source: 60 FR 63929, Dec. 13, 1995, unless otherwise noted.
Sec. 1.460 Definitions.
For purposes of Secs. 1.460 through 1.499 of this part, the
following definitions apply:
Agreement. The term ``agreement'' means a document that a VA health
care facility develops in collaboration with an Organ Procurement
Organization, eye bank or tissue bank with written, detailed
responsibilities and obligations of the parties with regard to
identifying potential donors and facilitating the donation process.
Alcohol abuse. The term ``alcohol abuse'' means the use of an
alcoholic beverage which impairs the physical, mental, emotional, or
social well-being of the user.
Contractor. The term ``contractor'' means a person who provides
services to VA such as data processing, dosage preparation, laboratory
analyses or medical or other professional services. Each contractor
shall be required to enter into a written agreement subjecting such
contractor to the provisions of Secs. 1.460 through 1.499 of this part;
38 U.S.C. 5701 and 7332; and 5 U.S.C. 552a and 38 CFR 1.576(g).
[[Page 30]]
Deceased. The term ``deceased'' means death established by either
neurological criteria (brain death) or cardiopulmonary criteria (cardiac
death). Brain death is the irreversible cessation of all brain function.
Cardiac death is the irreversible cessation of circulatory and
respiratory function. In both cases, ``irreversible'' means that
function will not resume spontaneously and will not be restarted
artificially.
Decision-making capacity. The term ``decision-making capacity'' has
the same meaning set forth in 38 CFR 17.32(a).
Diagnosis. The term ``diagnosis'' means any reference to an
individual's alcohol or drug abuse or to a condition which is identified
as having been caused by that abuse or any reference to sickle cell
anemia or infection with the human immunodeficiency virus which is made
for the purpose of treatment or referral for treatment. A diagnosis
prepared for the purpose of treatment or referral for treatment but
which is not so used is covered by Secs. 1.460 through 1.499 of this
part. These regulations do not apply to a diagnosis of drug overdose or
alcohol intoxication which clearly shows that the individual involved is
not an alcohol or drug abuser (e.g., involuntary ingestion of alcohol or
drugs or reaction to a prescribed dosage of one or more drugs).
Disclose or disclosure. The term ``disclose'' or ``disclosure''
means a communication of patient identifying information, the
affirmative verification of another person's communication of patient
identifying information, or the communication of any information from
the record of a patient who has been identified.
Drug abuse. The term ``drug abuse'' means the use of a psychoactive
substance for other than medicinal purposes which impairs the physical,
mental, emotional, or social well-being of the user.
Eye bank and tissue bank. The term ``eye bank and tissue bank''
means an ``establishment'' as defined in 21 CFR 1271.3, pursuant to
section 361 of the Public Health Service Act (42 U.S.C. 264) that has a
valid, current registration with the Federal Food and Drug
Administration (FDA) as required under 21 CFR part 1271.
Individual. The term ``individual'' means a veteran, as defined in
38 U.S.C. 101(2), or a dependent of a veteran, as defined in 38 U.S.C.
101(3) and (4)(A).
Infection with the human immunodeficiency virus (HIV). The term
``infection with the human immunodeficiency virus (HIV)'' means the
presence of laboratory evidence for human immunodeficiency virus
infection. The term does not include negative results from the testing
of an individual for the presence of the virus or antibodies to the
virus, or such testing of an individual where the results are negative.
Informant. The term ``informant'' means an individual who is a
patient or employee or who becomes a patient or employee at the request
of a law enforcement agency or official and who at the request of a law
enforcement agency or official observes one or more patients or
employees for the purpose of reporting the information obtained to the
law enforcement agency or official.
Near death. The term ``near death'' means that in the clinical
judgment of the patient's health care provider based on defined clinical
triggers, the patient's death is imminent.
Organ Procurement Organization. The term ``Organ Procurement
Organization'' (OPO) means an organization that performs or coordinates
the procurement, preservation, and transportation of organs and
maintains a system of locating prospective recipients for available
organs.
Patient. The term ``patient'' means any individual or subject who
has been given a diagnosis or treatment for drug abuse, alcoholism or
alcohol abuse, infection with the human immunodeficiency virus, or
sickle cell anemia and includes any individual who, after arrest on a
criminal charge, is interviewed and/or tested in connection with drug
abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in order to determine that
individual's eligibility to participate in a treatment or rehabilitation
program if the result of such testing is positive.
[[Page 31]]
The term ``patient'' includes an individual who has been diagnosed or
treated for alcoholism, drug abuse, HIV infection, or sickle cell anemia
for purposes of participation in a VA program or activity relating to
those four conditions, including a program or activity consisting of
treatment, rehabilitation, education, training, evaluation, or research.
For the purpose of infection with the human immunodeficiency virus or
sickle cell anemia, the term ``patient'' includes one tested positive
for the disease even if no treatment is provided, offered, or requested.
The term does not include a patient who has tested negative for the
disease.
Patient identifying information. The term ``patient identifying
information'' means the name, address, social security number,
fingerprints, photograph, or similar information by which the identity
of a patient can be determined with reasonable accuracy and speed either
directly or by reference to other publicly available information. The
term does not include a number assigned to a patient by a treatment
program, if that number does not consist of, or contain numbers (such as
social security, or driver's license number) which could be used to
identify a patient with reasonable accuracy and speed from sources
external to the treatment program.
Person. The term ``person'' means an individual, partnership,
corporation, Federal, State or local government agency, or any other
legal entity.
Practitioner. The term ``practitioner'' has the same meaning set
forth in 38 CFR 17.32(a).
Procurement organization. The term ``procurement organization''
means an organ procurement organization, eye bank, and/or tissue bank as
defined in this section.
Records. The term ``records'' means any information received,
obtained or maintained, whether recorded or not, by an employee or
contractor of VA, for the purpose of seeking or performing VA program or
activity functions relating to drug abuse, alcoholism, tests for or
infection with the human immunodeficiency virus, or sickle cell anemia
regarding an identifiable patient. A program or activity function
relating to drug abuse, alcoholism, infection with the human
immunodeficiency virus, or sickle cell anemia includes evaluation,
treatment, education, training, rehabilitation, research, or referral
for one of these conditions. Sections 1.460 through 1.499 of this part
apply to a primary or other diagnosis, or other information which
identifies, or could reasonably be expected to identify, a patient as
having a drug or alcohol abuse condition, infection with the human
immunodeficiency virus, or sickle cell anemia (e.g., alcoholic
psychosis, drug dependence), but only if such diagnosis or information
is received, obtained or maintained for the purpose of seeking or
performing one of the above program or activity functions. Sections
1.460 through 1.499 of this part do not apply if such diagnosis or other
information is not received, obtained or maintained for the purpose of
seeking or performing a function or activity relating to drug abuse,
alcoholism, infection with the human immunodeficiency virus, or sickle
cell anemia for the patient in question. Whenever such diagnosis or
other information, not originally received or obtained for the purpose
of obtaining or providing one of the above program or activity
functions, is subsequently used in connection with such program or
activity functions, those original entries become a ``record'' and
Secs. 1.460 through 1.499 of this part thereafter apply to those
entries. Segregability: these regulations do not apply to records or
information contained therein, the disclosure of which (the
circumstances surrounding the disclosure having been considered) could
not reasonably be expected to disclose the fact that a patient has been
connected with a VA program or activity function relating to drug abuse,
alcoholism, infection with the human immunodeficiency virus, or sickle
cell anemia.
(1) The following are examples of instances whereby records or
information related to alcoholism or drug abuse are covered by the
provisions of Secs. 1.460 through 1.499 of this part:
(i) A patient with alcoholic delirium tremens is admitted for
detoxification. The patient is offered treatment in a VA alcohol
rehabilitation program which he declines.
[[Page 32]]
(ii) A patient who is diagnosed as a drug abuser applies for and is
provided VA drug rehabilitation treatment.
(iii) While undergoing treatment for an unrelated medical condition,
a patient discusses with the physician his use and abuse of alcohol. The
physician offers VA alcohol rehabilitation treatment which is declined
by the patient.
(2) The following are examples of instances whereby records or
information related to alcoholism or drug abuse are not covered by the
provisions of Secs. 1.460 through 1.499 of this part:
(i) A patient with alcoholic delirium tremens is admitted for
detoxification, treated and released with no counseling or treatment for
the underlying condition of alcoholism.
(ii) While undergoing treatment for an unrelated medical condition,
a patient informs the physician of a history of drug abuse fifteen years
earlier with no ingestion of drugs since. The history and diagnosis of
drug abuse is documented in the hospital summary and no treatment is
sought by the patient or offered or provided by VA during the current
period of treatment.
(iii) While undergoing treatment for injuries sustained in an
accident, a patient's medical record is documented to support the
judgment of the physician to prescribe certain alternate medications in
order to avoid possible drug interactions in view of the patient's
enrollment and treatment in a non-VA methadone maintenance program. The
patient states that continued treatment and follow-up will be obtained
from private physicians and VA treatment for the drug abuse is not
sought by the patient nor provided or offered by the staff.
(iv) A patient is admitted to the emergency room suffering from a
possible drug overdose. The patient is treated and released; a history
and diagnosis of drug abuse may be documented in the hospital summary.
The patient is not offered treatment for the underlying conditions of
drug abuse, nor is treatment sought by the patient for that condition.
Surrogate. The term ``surrogate'' has the same meaning set forth in
38 CFR 17.32(a).
Third party payer. The term ``third party payer'' means a person who
pays, or agrees to pay, for diagnosis or treatment furnished to a
patient on the basis of a contractual relationship with the patient or a
member of his or her family or on the basis of the patient's eligibility
for Federal, State, or local governmental benefits.
Treatment. The term ``treatment'' means the management and care of a
patient for drug abuse, alcoholism or alcohol abuse, or the diagnosis,
management and care of a patient for infection with the human
immunodeficiency virus, or sickle cell anemia, or a condition which is
identified as having been caused by one or more of these conditions, in
order to reduce or eliminate the adverse effects upon the patient. The
term does not include negative test results for the human
immunodeficiency virus, antibodies to the virus, or sickle cell anemia,
or such testing of an individual where the results are negative.
Undercover agent. The term ``undercover agent'' means an officer of
any Federal, State, or local law enforcement agency who becomes a
patient or employee for the purpose of investigating a suspected
violation of law or who pursues that purpose after becoming a patient or
becoming employed for other purposes.
VHA health care facilty. The term ``VHA health care facility'' means
a VA medical center, VA emergency room, VA nursing home or other
facility as defined in 38 U.S.C. 1701(3).
(Authority: 38 U.S.C. 7332, 7334)
[60 FR 63929, Dec. 13, 1995, as amended at 72 FR 48241, Aug. 23, 2007;
73 FR 65260, Nov. 3, 2008; 76 FR 6696, Feb. 8, 2011; 82 FR 14822, Mar.
23, 2017]
Sec. 1.461 Applicability.
(a) General--(1) Restrictions on disclosure. The restrictions on
disclosure in these regulations apply to any information whether or not
recorded, which:
(i) Would identify a patient as an alcohol or drug abuser, an
individual who tested positive for or is infected with the human
immunodeficiency virus (HIV), hereafter referred to as HIV, or an
individual who tested positive for or has sickle cell anemia, either
directly, by reference to other publicly available information, or
through verification of
[[Page 33]]
such an identification by another person; and
(ii) Is provided or obtained for the purpose of treating alcohol or
drug abuse, infection with the HIV, or sickle cell anemia, making a
diagnosis for that treatment, or making a referral for that treatment as
well as for education, training, evaluation, rehabilitation and research
program or activity purposes.
(2) Restriction on use. The restriction on use of information to
initiate or substantiate any criminal charges against a patient or to
conduct any criminal investigation of a patient applies to any
information, whether or not recorded, which is maintained for the
purpose of treating drug abuse, alcoholism or alcohol abuse, infection
with the HIV, or sickle cell anemia, making a diagnosis for that
treatment, or making a referral for that treatment as well as for
education, training, evaluation, rehabilitation, and research program or
activity purposes.
(b) Period covered as affecting applicability. The provisions of
Secs. 1.460 through 1.499 of this part apply to records of identity,
diagnosis, prognosis, or treatment pertaining to any given individual
maintained over any period of time which, irrespective of when it
begins, does not end before March 21, 1972, in the case of diagnosis or
treatment for drug abuse; or before May 14, 1974, in the case of
diagnosis or treatment for alcoholism or alcohol abuse; or before
September 1, 1973, in the case of testing, diagnosis or treatment of
sickle cell anemia; or before May 20, 1988, in the case of testing,
diagnosis or treatment for an infection with the HIV.
(c) Exceptions--(1) Department of Veterans Affairs and Armed Forces.
The restrictions on disclosure in Secs. 1.460 through 1.499 of this part
do not apply to communications of information between or among those
components of VA who have a need for the information in connection with
their duties in the provision of health care, adjudication of benefits,
or in carrying out administrative responsibilities related to those
functions, including personnel of the Office of the Inspector General
who are conducting audits, evaluations, healthcare inspections, or non-
patient investigations, or between such components and the Armed Forces.
Information obtained by VA components under these circumstances may be
disclosed outside of VA to prosecute or investigate a non-patient only
in accordance with Sec. 1.495 of this part. Similarly, the restrictions
on disclosure in Secs. 1.460 through 1.499 of this part do not apply to
communications of information to the Department of Justice or U.S.
Attorneys who are providing support in civil litigation or possible
litigation involving VA.
(2) Contractor. The restrictions on disclosure in Secs. 1.460
through 1.499 of this part do not apply to communications between VA and
a contractor of information needed by the contractor to provide his or
her services.
(3) Crimes on VA premises or against VA personnel. The restrictions
on disclosure and use in Secs. 1.460 through 1.499 of this part do not
apply to communications from VA personnel to law enforcement officers
which:
(i) Are directly related to a patient's commission of a crime on the
premises of the facility or against personnel of VA or to a threat to
commit such a crime; and
(ii) Are limited to the circumstances of the incident, including the
patient status of the individual committing or threatening to commit the
crime, that individual's name and address to the extent authorized by 38
U.S.C. 5701(f)(2), and that individual's last known whereabouts.
(4) Undercover agents and informants. (i) Except as specifically
authorized by a court order granted under Sec. 1.495 of this part, VA
may not knowingly employ, or admit as a patient, any undercover agent or
informant in any VA drug abuse, alcoholism or alcohol abuse, HIV
infection, or sickle cell anemia treatment program.
(ii) No information obtained by an undercover agent or informant,
whether or not that undercover agent or informant is placed in a VA drug
abuse, alcoholism or alcohol abuse, HIV infection, or sickle cell anemia
treatment program pursuant to an authorizing court order, may be used to
criminally investigate or prosecute any patient unless authorized
pursuant to the provisions of Sec. 1.494 of this part.
[[Page 34]]
(iii) The enrollment of an undercover agent or informant in a
treatment unit shall not be deemed a violation of this section if the
enrollment is solely for the purpose of enabling the individual to
obtain treatment for drug or alcohol abuse, HIV infection, or sickle
cell anemia.
(d) Applicability to recipients of information--(1) Restriction on
use of information. In the absence of a proper Sec. 1.494 court order,
the restriction on the use of any information subject to Secs. 1.460
through 1.499 of this part to initiate or substantiate any criminal
charges against a patient or to conduct any criminal investigation of a
patient applies to any person who obtains that information from VA,
regardless of the status of the person obtaining the information or of
whether the information was obtained in accordance with Secs. 1.460
through 1.499 of this part. This restriction on use bars, among other
things, the introduction of that information as evidence in a criminal
proceeding and any other use of the information to investigate or
prosecute a patient with respect to a suspected crime. Information
obtained by undercover agents or informants (see paragraph (c) of this
section) or through patient access (see Sec. 1.469 of this part) is
subject to the restriction on use.
(2) Restrictions on disclosures--third-party payers and others. The
restrictions on disclosure in Secs. 1.460 through 1.499 of this part
apply to third-party payers and persons who, pursuant to a consent,
receive patient records directly from VA and who are notified of the
restrictions on redisclosure of the records in accordance with
Sec. 1.476 of this part.
(Authority: 38 U.S.C. 7332(e) and 7334)
[60 FR 63929, Dec. 13, 1995, as amended at 76 FR 65135, Oct. 20, 2011;
82 FR 14822, Mar. 23, 2017]
Sec. 1.462 Confidentiality restrictions.
(a) General. The patient records to which Secs. 1.460 through 1.499
of this part apply may be disclosed or used only as permitted by these
regulations and may not otherwise be disclosed or used in any civil,
criminal, administrative, or legislative proceedings conducted by any
Federal, State, or local authority. Any disclosure made under these
regulations must be limited to that information which is necessary to
carry out the purpose of the disclosure.
(b) Unconditional compliance required. The restrictions on
disclosure and use in Secs. 1.460 through 1.499 of this part apply
whether the person seeking the information already has it, has other
means of obtaining it, is a law enforcement or other official, has
obtained a subpoena, or asserts any other justification for a disclosure
or use which is not permitted by Secs. 1.460 through 1.499 of this part.
These provisions do not prohibit VA from acting accordingly when there
is no disclosure of information.
(c) Acknowledging the presence of patients: responding to requests.
(1) The presence of an identified patient in a VA facility for the
treatment or other VA program activity relating to drug abuse,
alcoholism or alcohol abuse, infection with the HIV, or sickle cell
anemia may be acknowledged only if the patient's written consent is
obtained in accordance with Sec. 1.475 of this part or if an authorizing
court order is entered in accordance with Secs. 1.490 through 1.499 of
this part. Acknowledgment of the presence of an identified patient in a
facility is permitted if the acknowledgment does not reveal that the
patient is being treated for or is otherwise involved in a VA program or
activity concerning drug abuse, alcoholism or alcohol abuse, infection
with the HIV, or sickle cell anemia.
(2) Any answer to a request for a disclosure of patient records
which is not permissible under Secs. 1.460 through 1.499 of this part
must be made in a way that will not affirmatively reveal that an
identified individual has been, or is being diagnosed or treated for
drug abuse, alcoholism or alcohol abuse, infection with the HIV, or
sickle cell anemia. These regulations do not restrict a disclosure that
an identified individual is not and never has been a patient.
(Authority: 38 U.S.C. 7334)
Sec. 1.463 Criminal penalty for violations.
Under 38 U.S.C. 7332(g), any person who violates any provision of
this statute or Secs. 1.460 through 1.499 of this part shall be fined
not more than $5,000 in
[[Page 35]]
the case of a first offense, and not more than $20,000 for a subsequent
offense.
(Authority: 38 U.S.C. 7332(g))
Sec. 1.464 Minor patients.
(a) Definition of minor. As used in Secs. 1.460 through 1.499 of
this part the term ``minor'' means a person who has not attained the age
of majority specified in the applicable State law, or if no age of
majority is specified in the applicable State law, the age of eighteen
years.
(b) State law not requiring parental consent to treatment. If a
minor patient acting alone has the legal capacity under the applicable
State law to apply for and obtain treatment for drug abuse, alcoholism
or alcohol abuse, infection with the HIV, or sickle cell anemia, any
written consent for disclosure authorized under Sec. 1.475 of this part
may be given only by the minor patient. This restriction includes, but
is not limited to, any disclosure of patient identifying information to
the parent or guardian of a minor patient for the purpose of obtaining
financial reimbursement. Sections 1.460 through 1.499 of this part do
not prohibit a VA facility from refusing to provide nonemergent
treatment to an otherwise ineligible minor patient until the minor
patient consents to the disclosure necessary to obtain reimbursement for
services from a third party payer.
(c) State law requiring parental consent to treatment. (1) Where
State law requires consent of a parent, guardian, or other person for a
minor to obtain treatment for drug abuse, alcoholism or alcohol abuse,
infection with the HIV, or sickle cell anemia, any written consent for
disclosure authorized under Sec. 1.475 of this part must be given by
both the minor and his or her parent, guardian, or other person
authorized under State law to act in the minor's behalf.
(2) Where State law requires parental consent to treatment, the fact
of a minor's application for treatment may be communicated to the
minor's parent, guardian, or other person authorized under State law to
act in the minor's behalf only if:
(i) The minor has given written consent to the disclosure in
accordance with Sec. 1.475 of this part; or
(ii) The minor lacks the capacity to make a rational choice
regarding such consent as judged by the appropriate VA facility director
under paragraph (d) of this section.
(d) Minor applicant for service lacks capacity for rational choice.
Facts relevant to reducing a threat to the life or physical well being
of the applicant or any other individual may be disclosed to the parent,
guardian, or other person authorized under State law to act in the
minor's behalf if the appropriate VA facility director judges that:
(1) A minor applicant for services lacks capacity because of extreme
youth or mental or physical condition to make a rational decision on
whether to consent to a disclosure under Sec. 1.475 of this part to his
or her parent, guardian, or other person authorized under State law to
act in the minor's behalf, and
(2) The applicant's situation poses a substantial threat to the life
or physical well-being of the applicant or any other individual which
may be reduced by communicating relevant facts to the minor's parent,
guardian, or other person authorized under State law to act in the
minor's behalf.
(Authority: 38 U.S.C. 7334)
Sec. 1.465 Incompetent and deceased patients.
(a) Incompetent patients other than minors. In the case of a patient
who has been adjudicated as lacking the capacity, for any reason other
than insufficient age, to manage his or her own affairs, any consent
which is required under Secs. 1.460 through 1.499 of this part may be
given by a court appointed legal guardian.
(b) Deceased patients--(1) Vital statistics. Sec. 1.460 through
1.499 of this part do not restrict the disclosure of patient identifying
information relating to the cause of death of a patient under laws
requiring the collection of death or other vital statistics or
permitting inquiry into the cause of death.
(2) Consent by personal representative. Any other disclosure of
information identifying a deceased patient as being treated for drug
abuse, alcoholism or
[[Page 36]]
alcohol abuse, infection with the HIV, or sickle cell anemia is subject
to Secs. 1.460 through 1.499 of this part. If a written consent to the
disclosure is required, the Under Secretary for Health or designee may,
upon the prior written request of the next of kin, executor/executrix,
administrator/administratrix, or other personal representative of such
deceased patient, disclose the contents of such records, only if the
Under Secretary for Health or designee determines such disclosure is
necessary to obtain survivorship benefits for the deceased patient's
survivor. This would include not only VA benefits, but also payments by
the Social Security Administration, Worker's Compensation Boards or
Commissions, or other Federal, State, or local government agencies, or
nongovernment entities, such as life insurance companies.
(3) Information related to sickle cell anemia. Information related
to sickle cell anemia may be released to a blood relative of a deceased
veteran for medical follow-up or family planning purposes.
(Authority: 38 U.S.C. 7332(b)(3))
Sec. 1.466 Security for records.
(a) Written records which are subject to Secs. 1.460 through 1.499
of this part must be maintained in a secure room, locked file cabinet,
safe or other similar container when not in use. Access to information
stored in computers will be limited to authorized VA employees who have
a need for the information in performing their duties. These security
precautions shall be consistent with the Privacy Act of 1974 (5 U.S.C.
552a).
(b) Each VA facility shall adopt in writing procedures related to
the access to and use of records which are subject to Secs. 1.460
through 1.499 of this part.
(Authority: 38 U.S.C. 7334)
Sec. 1.467 Restrictions on the use of identification cards
and public signs.
(a) No facility may require any patient to carry on their person
while away from the facility premises any card or other object which
would identify the patient as a participant in any VA drug abuse,
alcoholism or alcohol abuse, HIV infection, or sickle cell anemia
treatment program. A facility may require patients to use or carry cards
or other identification objects on the premises of a facility. Patients
may not be required to wear clothing or colored identification bracelets
or display objects openly to all facility staff or others which would
identify them as being treated for drug or alcohol abuse, HIV infection,
or sickle cell anemia.
(b) Treatment locations should not be identified by signs that would
identify individuals entering or exiting these locations as patients
enrolled in a drug or alcohol abuse, HIV infection, or sickle cell
anemia program or activity.
(Authority: 38 U.S.C. 7334)
Sec. 1.468 Relationship to Federal statutes protecting research
subjects against compulsory disclosure of their identity.
(a) Research privilege description. There may be concurrent coverage
of patient identifying information by the provisions of Secs. 1.460
through 1.499 of this part and by administrative action taken under Sec.
303(a) of the Public Health Service Act (42 U.S.C. 241(d) and the
implementing regulations at 42 CFR Part 2a); or Sec. 502(c) of the
Controlled Substances Act (21 U.S.C. 872(c) and the implementing
regulations at 21 CFR 1316.21). These ``research privilege'' statutes
confer on the Secretary of Health and Human Services and on the Attorney
General, respectively, the power to authorize researchers conducting
certain types of research to withhold from all persons not connected
with the research the names and other identifying information concerning
individuals who are the subjects of the research.
(b) Effect of concurrent coverage. Sections 1.460 through 1.499 of
this part restrict the disclosure and use of information about patients,
while administrative action taken under the research privilege statutes
and implementing regulations protects a person engaged in applicable
research from being compelled to disclose any identifying
characteristics of the individuals who are the subjects of that
research. The issuance under Secs. 1.490 through 1.499 of
[[Page 37]]
this part of a court order authorizing a disclosure of information about
a patient does not affect an exercise of authority under these research
privilege statutes. However, the research privilege granted under 21 CFR
291.505(g) to treatment programs using methadone for maintenance
treatment does not protect from compulsory disclosure any information
which is permitted to be disclosed under those regulations. Thus, if a
court order entered in accordance with Secs. 1.490 through 1.499 of this
part authorizes a VA facility to disclose certain information about its
patients, the facility may not invoke the research privilege under 21
CFR 291.505(g) as a defense to a subpoena for that information.
(Authority: 38 U.S.C. 7334)
Sec. 1.469 Patient access and restrictions on use.
(a) Patient access not prohibited. Sections 1.460 through 1.499 of
this part do not prohibit a facility from giving a patient access to his
or her own records, including the opportunity to inspect and copy any
records that VA maintains about the patient, subject to the provisions
of the Privacy Act (5 U.S.C. 552a(d)(1)) and 38 CFR 1.577. If the
patient is accompanied, giving access to the patient and the
accompanying person will require a written consent by the patient which
is provided in accordance with Sec. 1.475 of this part.
(b) Restrictions on use of information. Information obtained by
patient access to patient record is subject to the restriction on use of
this information to initiate or substantiate any criminal charges
against the patient or to conduct any criminal investigation of the
patient as provided for under Sec. 1.461(d)(1) of this part.
(Authority: 38 U.S.C. 7334)
Secs. 1.470-1.474 [Reserved]
Disclosures With Patient's Consent
Sec. 1.475 Form of written consent.
(a) Required elements. A written consent to a disclosure under
Secs. 1.460 through 1.499 of this part must include:
(1) The name of the facility permitted to make the disclosure (such
a designation does not preclude the release of records from other VA
health care facilities unless a restriction is stated on the consent).
(2) The name or title of the individual or the name of the
organization to which disclosure is to be made.
(3) The name of the patient.
(4) The purpose of the disclosure.
(5) How much and what kind of information is to be disclosed.
(6) The signature of the patient and, when required for a patient
who is a minor, the signature of a person authorized to give consent
under Sec. 1.464 of this part; or, when required for a patient who is
incompetent or deceased, the signature of a person authorized to sign
under Sec. 1.465 of this part in lieu of the patient.
(7) The date on which the consent is signed.
(8) A statement that the consent is subject to revocation at any
time except to the extent that the facility which is to make the
disclosure has already acted in reliance on it. Acting in reliance
includes the provision of treatment services in reliance on a valid
consent to disclose information to a third party payer.
(9) The date, event, or condition upon which the consent will expire
if not revoked before. This date, event, or condition must ensure that
the consent will last no longer than reasonably necessary to serve the
purpose for which it is given.
(b) Expired, deficient, or false consent. A disclosure may not be
made on the basis of a consent which:
(1) Has expired;
(2) On its face substantially fails to conform to any of the
requirements set forth in paragraph (a) of this section;
(3) Is known to have been revoked; or
(4) Is known, or through a reasonable effort could be known, by
responsible personnel of VA to be materially false.
(c) Notification of deficient consent. Other than the patient, no
person or entity may be advised that a special consent is required in
order to disclose information relating to an individual participating in
a drug abuse, alcoholism or alcohol abuse, HIV, or sickle cell anemia
program or activity. Where a person or entity presents VA with an
insufficient written consent for information protected by 38 U.S.C.
7332, VA
[[Page 38]]
must, in the process of obtaining a legally sufficient consent,
correspond only with the patient whose records are involved, or the
legal guardian of an incompetent patient or next of kin of a deceased
patient, and not with any other person.
(d) It is not necessary to use any particular form to establish a
consent referred to in paragraph (a) of this section, however, VA Form
10-5345, titled Request for and Consent to Release of Medical Records
Protected by 38 U.S.C. 7332, may be used for such purpose.
(Authority: 38 U.S.C. 7332(a)(2) and (b)(1))
Sec. 1.476 Prohibition on redisclosure.
Each disclosure under Secs. 1.460 through 1.499 of this part made
with the patient's written consent must be accompanied by a written
statement similar to the following:
This information has been disclosed to you from records protected by
Federal confidentiality rules (38 CFR Part 1). The Federal rules
prohibit you from making any further disclosure of this information
unless further disclosure is expressly permitted by the written consent
of the person to whom it pertains or as otherwise permitted by 38 CFR
Part 1. A general authorization for the release of medical or other
information is NOT sufficient for this purpose. The Federal rules
restrict any use of the information to criminally investigate or
prosecute any alcohol or drug abuse patient or patient with sickle cell
anemia or HIV infection.
(Authority: 38 U.S.C. 7334)
Sec. 1.477 Disclosures permitted with written consent.
If a patient consents to a disclosure of his or her records under
Sec. 1.475 of this part, a facility may disclose those records in
accordance with that consent to any individual or organization named in
the consent, except that disclosures to central registries and in
connection with criminal justice referrals must meet the requirements of
Secs. 1.478 and 1.479 of this part, respectively.
(Authority: 38 U.S.C. 7332(b)(1))
Sec. 1.478 Disclosures to prevent multiple enrollments in
detoxification and maintenance treatment programs; not applicable
to records relating to sickle cell anemia or infection with the human
immunodeficiency virus.
(a) Definitions. For purposes of this section:
(1) Central registry means an organization which obtains from two or
more member programs patient identifying information about individuals
applying for maintenance treatment or detoxification treatment for the
purpose of avoiding an individual's concurrent enrollment in more than
one program.
(2) Detoxification treatment means the dispensing of a narcotic drug
in decreasing doses to an individual in order to reduce or eliminate
adverse physiological or psychological effects incident to withdrawal
from the sustained use of a narcotic drug.
(3) Maintenance treatment means the dispensing of a narcotic drug in
the treatment of an individual for dependence upon heroin or other
morphine-like drugs.
(4) Member program means a non-VA detoxification treatment or
maintenance treatment program which reports patient identifying
information to a central registry and which is in the same State as that
central registry or is not more than 125 miles from any border of the
State in which the central registry is located.
(b) Restrictions on disclosure. VA may disclose patient records to a
central registry which is located in the same State or is not more than
125 miles from any border of the State or to any non-VA detoxification
or maintenance treatment program not more than 200 miles away for the
purpose of preventing the multiple enrollment of a patient only if:
(1) The disclosure is made when:
(i) The patient is accepted for treatment;
(ii) The type or dosage of the drug is changed; or
(iii) The treatment is interrupted, resumed or terminated.
(2) The disclosure is limited to:
(i) Patient identifying information;
(ii) Type and dosage of the drug; and
(iii) Relevant dates.
[[Page 39]]
(3) The disclosure is made with the patient's written consent
meeting the requirements of Sec. 1.475 of this part, except that:
(i) The consent must list the name and address of each central
registry and each known non-VA detoxification or maintenance treatment
program to which a disclosure will be made; and
(ii) The consent may authorize a disclosure to any non-VA
detoxification or maintenance treatment program established within 200
miles after the consent is given without naming any such program.
(c) Use of information limited to prevention of multiple
enrollments. A central registry and any non-VA detoxification or
maintenance treatment program to which information is disclosed to
prevent multiple enrollments may not redisclose or use patient
identifying information for any purpose other than the prevention of
multiple enrollments unless authorized by a court order under
Secs. 1.490 through 1.499 of this part.
(Authority: 38 U.S.C. 7334)
Sec. 1.479 Disclosures to elements of the criminal justice system
which have referred patients.
(a) VA may disclose information about a patient from records covered
by Secs. 1.460 through 1.499 of this part to those persons within the
criminal justice system which have made participation in a VA treatment
program a condition of the disposition of any criminal proceedings
against the patient or of the patient's parole or other release from
custody if:
(1) The disclosure is made only to those individuals within the
criminal justice system who have a need for the information in
connection with their duty to monitor the patient's progress (e.g., a
prosecuting attorney who is withholding charges against the patient, a
court granting pretrial or posttrial release, probation or parole
officers responsible for supervision of the patient); and
(2) The patient has signed a written consent as a condition of
admission to the treatment program meeting the requirements of
Sec. 1.475 of this part (except paragraph (a)(8) which is inconsistent
with the revocation provisions of paragraph (c) of this section) and the
requirements of paragraphs (b) and (c) of this section.
(b) Duration of consent. The written consent must state the period
during which it remains in effect. This period must be reasonable,
taking into account:
(1) The anticipated length of the treatment recognizing that
revocation of consent may not generally be effected while treatment is
ongoing;
(2) The type of criminal proceeding involved, the need for the
information in connection with the final disposition of that proceeding,
and when the final disposition will occur; and
(3) Such other factors as the facility, the patient, and the
person(s) who will receive the disclosure consider pertinent.
(c) Revocation of consent. The written consent must state that it is
revocable upon the passage of a specified amount of time or the
occurrence of a specified, ascertainable event. The time or occurrence
upon which consent becomes revocable may be no earlier than the
individual's completion of the treatment program and no later than the
final disposition of the conditional release or other action in
connection with which consent was given.
(d) Restrictions on redisclosure and use. A person who receives
patient information under this section may redisclose and use it only to
carry out that person's official duties with regard to the patient's
conditional release or other action in connection with which the consent
was given, including parole.
(Authority: 38 U.S.C. 7334)
Secs. 1.480-1.483 [Reserved]
Disclosures Without Patient Consent
Sec. 1.483 Disclosure of information to participate in state
prescription drug monitoring programs.
Information covered by Secs. 1.460 through 1.499 of this part may be
disclosed to State Prescription Drug Monitoring Programs pursuant to the
limitations set forth in Sec. 1.515 of this part.
[78 FR 9592, Feb. 11, 2013]
[[Page 40]]
Sec. 1.484 Disclosure of medical information to the surrogate of a
patient who lacks decision-making capacity.
A VA medical practitioner may disclose the content of any record of
the identity, diagnosis, prognosis, or treatment of a patient that is
maintained in connection with the performance of any VA program or
activity relating to drug abuse, alcoholism or alcohol abuse, infection
with the human immunodeficiency virus, or sickle cell anemia to a
surrogate of the patient who is the subject of such record if:
(a) The patient lacks decision-making capacity; and
(b) The practitioner deems the content of the given record necessary
for the surrogate to make an informed decision regarding the patient's
treatment.
(Authority: 38 U.S.C. 7331, 7332)
[76 FR 6696, Feb. 8, 2011]
Sec. 1.485 Medical emergencies.
(a) General rule. Under the procedures required by paragraph (c) of
this section, patient identifying information from records covered by
Secs. 1.460 through 1.499 of this part may be disclosed to medical
personnel who have a need for information about a patient for the
purpose of treating a condition which poses an immediate threat to the
health of any individual and which requires immediate medical
intervention.
(b) Special rule. Patient identifying information may be disclosed
to medical personnel of the Food and Drug Administration (FDA) who
assert a reason to believe that the health of any individual may be
threatened by an error in the manufacture, labeling, or sale of a
product under FDA jurisdiction, and that the information will be used
for the exclusive purpose of notifying patients or their physicians of
potential dangers.
(c) Procedures. Immediately following disclosure, any VA employee
making an oral disclosure under authority of this section shall make an
accounting of the disclosure in accordance with the Privacy Act (5
U.S.C. 552a(c) and 38 CFR 1.576(c)) and document the disclosure in the
patient's records setting forth in writing:
(1) The name and address of the medical personnel to whom disclosure
was made and their affiliation with any health care facility;
(2) The name of the individual making the disclosure;
(3) The date and time of the disclosure;
(4) The nature of the emergency (or error, if the report was to
FDA);
(5) The information disclosed; and
(6) The authority for making the disclosure (Sec. 1.485 of this
part).
(Authority: 38 U.S.C. 7332(b)(2)(A))
Sec. 1.485a Eye, organ and tissue donation.
A VHA health care facility may disclose the individually-identified
medical record information of an individual covered by Secs. 1.460
through 1.499 of this part to an authorized representative of a
procurement organization for the purpose of facilitating determination
of whether the individual is a suitable potential organ, eye, or tissue
donor if:
(a) The individual is currently an inpatient in a VHA health care
facility;
(b) The individual is, in the clinical judgment of the individual's
primary health care provider, near death or deceased;
(c) The VHA health care facility has a signed agreement with the
procurement organization in accordance with the applicable requirements
of the United States Department of Health and Human Services (HHS); and
(d) The VHA health care facility has confirmed with HHS that it has
certified or recertified the organ procurement organization as provided
in the applicable HHS regulations. VA medical centers must verify
annually in January of each calendar year with the Food and Drug
Administration (FDA) that an eye bank or tissue bank has complied with
the FDA registration requirements of 21 CFR part 1271 and that the
registration status is active before permitting an eye bank or tissue
[[Page 41]]
bank to receive protected health information.
(Authority: 38 U.S.C. 5701(k), 7332(b)(2)(E))
[72 FR 48242, Aug. 23, 2007, as amended at 73 FR 65260, Nov. 3, 2008]
Sec. 1.486 Disclosure of information related to infection with the
human immunodeficiency virus to public health authorities.
(a) In the case of any record which is maintained in connection with
the performance of any program or activity relating to infection with
the HIV, information may be disclosed to a Federal, State, or local
public health authority, charged under Federal or State law with the
protection of the public health, and to which Federal or State law
requires disclosure of such record, if a qualified representative of
such authority has made a written request that such record be provided
as required pursuant to such law for a purpose authorized by such law.
In the case of a State law, such law must, in order for VA to be able to
release patient name and address information in accordance with 38
U.S.C. 5701(f)(2), provide for a penalty or fine or other sanction to be
assessed against those individuals who are subject to the jurisdiction
of the public health authority but fail to comply with the reporting
requirements.
(b) A person to whom a record is disclosed under this section may
not redisclose or use such record for a purpose other than that for
which the disclosure was made.
(Authority: 38 U.S.C. 7332(b)(2)(C))
Sec. 1.487 Disclosure of information related to infection with the
human immunodeficiency virus to the spouse or sexual partner of the
patient.
(a) Subject to paragraph (b) of this section, a physician or a
professional counselor may disclose information or records indicating
that a patient is infected with the HIV if the disclosure is made to the
spouse of the patient, or to an individual whom the patient has, during
the process of professional counseling or of testing to determine
whether the patient is infected with such virus, identified as being a
sexual partner of such patient.
(b) A disclosure under this section may be made only if the
physician or counselor, after making reasonable efforts to counsel and
encourage the patient to provide the information to the spouse or sexual
partner, reasonably believes that the patient will not provide the
information to the spouse or sexual partner and that the disclosure is
necessary to protect the health of the spouse or sexual partner.
(c) A disclosure under this section may be made by a physician or
counselor other than the physician or counselor referred to in paragraph
(b) of this section if such physician or counselor is unavailable by
reason of extended absence or termination of employment to make the
disclosure.
(Authority: 38 U.S.C. 7332(b))
Sec. 1.488 Research activities.
Subject to the provisions of 38 U.S.C. 5701, 38 CFR 1.500-1.527, the
Privacy Act (5 U.S.C. 552a), 38 CFR 1.575-1.584 and the following
paragraphs, patient medical record information covered by Secs. 1.460
through 1.499 of this part may be disclosed for the purpose of
conducting scientific research.
(a) Information in individually identifiable form may be disclosed
from records covered by Secs. 1.460 through 1.499 of this part for the
purpose of conducting scientific research if the Under Secretary for
Health or designee makes a determination that the recipient of the
patient identifying information:
(1) Is qualified to conduct the research.
(2) Has a research protocol under which the information:
(i) Will be maintained in accordance with the security requirements
of Sec. 1.466 of this part (or more stringent requirements); and
(ii) Will not be redisclosed except as permitted under paragraph (b)
of this section.
(3) Has furnished a written statement that the research protocol has
been reviewed by an independent group of three or more individuals who
found that the rights of patients would be adequately protected and that
the potential benefits of the research outweigh any potential risks to
patient confidentiality posed by the disclosure of records.
[[Page 42]]
(b) A person conducting research may disclose information obtained
under paragraph (a) of this section only back to VA and may not identify
any individual patient in any report of that research or otherwise
disclose patient identities.
(Authority: 38 U.S.C. 7332(b)(2)(B))
Sec. 1.489 Audit and evaluation activities.
Subject to the provisions of 38 U.S.C. 5701, 38 CFR 1.500-1.527, the
Privacy Act (5 U.S.C. 552a), 38 CFR 1.575-1.584, and the following
paragraphs, patient medical records covered by Secs. 1.460 through 1.499
of this part may be disclosed outside VA for the purposes of conducting
audit and evaluation activities.
(a) Records not copies. If patient records covered by Secs. 1.460
through 1.499 of this part are not copied, patient identifying
information may be disclosed in the course of a review of records on VA
facility premises to any person who agrees in writing to comply with the
limitations on redisclosure and use in paragraph (d) of this section
and:
(1) Where audit or evaluation functions are performed by a State or
Federal governmental agency on behalf of VA; or
(2) Who is determined by the VA facility director to be qualified to
conduct the audit or evaluation activities.
(b) Copying of records. Records containing patient identifying
information may be copied by any person who:
(1) Agrees in writing to:
(i) Maintain the patient identifying information in accordance with
the security requirements provided in Sec. 1.466 of this part (or more
stringent requirements);
(ii) Destroy all the patient identifying information upon completion
of the audit or evaluation; and
(iii) Comply with the limitations on disclosure and use in paragraph
(d) of this section.
(2) The VA medical facility director determines to be qualified to
conduct the audit or evaluation activities.
(c) Congressional oversight. Records subject to Secs. 1.460 through
1.499 of this part upon written request may be released to congressional
committees or subcommittees for program oversight and evaluation if such
records pertain to any matter within the jurisdiction of such committee
or subcommittee.
(d) Limitation on disclosure and use. Records containing patient
identifying information disclosed under this section may be disclosed
only back to VA and used only to carry out an audit or evaluation
purpose, or, to investigate or prosecute criminal or other activities as
authorized by a court order entered under Sec. 1.494 of this part.
(Authority: 38 U.S.C. 7332(b)(2)(B))
Court Orders Authorizing Disclosures and Use
Sec. 1.490 Legal effect of order.
The records to which Secs. 1.460 through 1.499 of this part apply
may be disclosed if authorized by an appropriate order of a court of
competent jurisdiction granted after application showing good cause
therefore. In assessing good cause the court is statutorily required to
weigh the public interest and the need for disclosure against the injury
to the patient or subject, to the physician-patient relationship, and to
the treatment services. Upon the granting of such order, the court, in
determining the extent to which any disclosure of all or any part of any
record is necessary, is required by statute to impose appropriate
safeguards against unauthorized disclosure. An order of a court of
competent jurisdiction to produce records subject to Secs. 1.460 through
1.499 of this part will not be sufficient unless the order reflects that
the court has complied with the requirements of 38 U.S.C. 7332(b)(2)(D).
Such an order from a Federal court compels disclosure. However, such an
order from a State court only acts to authorize the Secretary to
exercise discretion pursuant to 38 U.S.C. 5701(b)(5) and 38 CFR 1.511 to
disclose such records. It does not compel disclosure.
(Authority: 38 U.S.C. 7332(b)(2)(D))
Sec. 1.491 Confidential communications.
(a) A court order under Secs. 1.490 through 1.499 of this part may
authorize disclosure of confidential communications made by a patient to
a treatment program in the course of diagnosis, treatment, or referral
for treatment only if:
[[Page 43]]
(1) The disclosure is necessary to protect against an existing
threat to life or of serious bodily injury, including circumstances
which constitute suspected child abuse and neglect and verbal threats
against third parties;
(2) The disclosure is necessary in connection with investigation or
prosecution of an extremely serious crime, such as one which directly
threatens loss of life or serious bodily injury, including homicide,
rape, kidnapping, armed robbery, assault with a deadly weapon, or child
abuse and neglect; or
(3) The disclosure is in connection with litigation or an
administrative proceeding in which the patient offers testimony or other
evidence pertaining to the content of the confidential communications.
(b) [Reserved]
(Authority: 38 U.S.C. 7334)
Sec. 1.492 Order not applicable to records disclosed without consent
to researchers, auditors and evaluators.
A court order under Secs. 1.460 through 1.499 of this part may not
authorize qualified personnel, who have received patient identifying
information from VA without consent for the purpose of conducting
research, audit or evaluation, to disclose that information or use it to
conduct any criminal investigation or prosecution of a patient. However,
a court order under Sec. 1.495 of this part may authorize disclosure and
use of records to investigate or prosecute VA personnel.
(Authority: 38 U.S.C. 7334)
Sec. 1.493 Procedures and criteria for orders authorizing disclosures
for noncriminal purposes.
(a) Application. An order authorizing the disclosure of patient
records covered by Secs. 1.460 through 1.499 of this part for purposes
other than criminal investigation or prosecution may be applied for by
any person having a legally recognized interest in the disclosure which
is sought. The application may be filed separately or as part of a
pending civil action in which it appears that the patient records are
needed to provide evidence. An application must use a fictitious name,
such as John Doe, to refer to any patient and may not contain or
otherwise disclose any patient identifying information unless the
patient is the applicant or has given a written consent (meeting the
requirements of Sec. 1.475 of this part) to disclosure or the court has
ordered the record of the proceeding sealed from public scrutiny.
(b) Notice. The patient and VA facility from whom disclosure is
sought must be given:
(1) Adequate notice in a manner which will not disclose patient
identifying information to other persons; and
(2) An opportunity to file a written response to the application, or
to appear in person, for the limited purpose of providing evidence on
whether the statutory and regulatory criteria for the issuance of the
court order are met.
(c) Review of evidence: Conduct of hearing. Any oral argument,
review of evidence, or hearing on the application must be held in the
judge's chambers or in some manner which ensures that patient
identifying information is not disclosed to anyone other than a party to
the proceeding, the patient, or VA, unless the patient requests an open
hearing in a manner which meets the written consent requirements of
Sec. 1.475 of this part. The proceeding may include an examination by
the judge of the patient records referred to in the application.
(d) Criteria for entry of order. An order under this section may be
entered only if the court determines that good cause exists. To make
this determination the court must find that:
(1) Other ways of obtaining the information are not available or
would not be effective; and
(2) The public interest and need for the disclosure outweigh the
potential injury to the patient, the physician-patient relationship and
the treatment services.
(e) Content of order. An order authorizing a disclosure must:
(1) Limit disclosure to those parts of the patient's record which
are essential to fulfill the objective of the order;
(2) Limit disclosure to those persons whose need for information is
the basis for the order; and
(3) Include such other measures as are necessary to limit disclosure
for the protection of the patient, the physician-patient relationship
and the
[[Page 44]]
treatment services; for example, sealing from public scrutiny the record
of any proceeding for which disclosure of a patient's record has been
ordered.
(Authority: 38 U.S.C. 7334)
Sec. 1.494 Procedures and criteria for orders authorizing disclosure
and use of records to criminally investigate or prosecute patients.
(a) Application. An order authorizing the disclosure or use of
patient records covered by Secs. 1.460 through 1.499 of this part to
criminally investigate or prosecute a patient may be applied for by VA
or by any person conducting investigative or prosecutorial activities
with respect to the enforcement of criminal laws. The application may be
filed separately, as part of an application for a subpoena or other
compulsory process, or in a pending criminal action. An application must
use a fictitious name such as John Doe, to refer to any patient and may
not contain or otherwise disclose patient identifying information unless
the court has ordered the record of the proceeding sealed from public
scrutiny.
(b) Notice and hearing. Unless an order under Sec. 1.495 of this
part is sought with an order under this section, VA must be given:
(1) Adequate notice (in a manner which will not disclose patient
identifying information to third parties) of an application by a person
performing a law enforcement function;
(2) An opportunity to appear and be heard for the limited purpose of
providing evidence on the statutory and regulatory criteria for the
issuance of the court order; and
(3) An opportunity to be represented by counsel.
(c) Review of evidence: Conduct of hearings. Any oral argument,
review of evidence, or hearing on the application shall be held in the
judge's chambers or in some other manner which ensures that patient
identifying information is not disclosed to anyone other than a party to
the proceedings, the patient, or VA. The proceeding may include an
examination by the judge of the patient records referred to in the
application.
(d) Criteria. A court may authorize the disclosure and use of
patient records for the purpose of conducting a criminal investigation
or prosecution of a patient only if the court finds that all of the
following criteria are met:
(1) The crime involved is extremely serious, such as one which
causes or directly threatens loss of life or serious bodily injury
including, but not limited to, homicide, rape, kidnapping, armed
robbery, assault with a deadly weapon, and child abuse and neglect.
(2) There is a reasonable likelihood that the records will disclose
information of substantial value in the investigation or prosecution.
(3) Other ways of obtaining the information are not available or
would not be effective.
(4) The potential injury to the patient, to the physician-patient
relationship and to the ability of VA to provide services to other
patients is outweighed by the public interest and the need for the
disclosure.
(5) If the applicant is a person performing a law enforcement
function, VA has been represented by counsel independent of the
applicant.
(e) Content of order. Any order authorizing a disclosure or use of
patient records under this section must:
(1) Limit disclosure and use to those parts of the patient's record
which are essential to fulfill the objective of the order;
(2) Limit disclosure to those law enforcement and prosecutorial
officials who are responsible for, or are conducting, the investigation
or prosecution, and limit their use of the records to investigation and
prosecution of extremely serious crime or suspected crime specified in
the applications; and
(3) Include such other measures as are necessary to limit disclosure
and use to the fulfillment on only that public interest and need found
by the court.
(Authority: 38 U.S.C. 7332(c))
Sec. 1.495 Procedures and criteria for orders authorizing disclosure
and use of records to investigate or prosecute VA or employees of VA.
(a) Application. (1) An order authorizing the disclosure or use of
patient records covered by Secs. 1.460 through 1.499 of this part to
criminally or administratively investigate or prosecute VA
[[Page 45]]
(or employees or agents of VA) may be applied for by an administrative,
regulatory, supervisory, investigative, law enforcement, or
prosecutorial agency having jurisdiction over VA activities.
(2) The application may be filed separately or as part of a pending
civil or criminal action against VA (or agents or employees of VA) in
which it appears that the patient records are needed to provide material
evidence. The application must use a fictitious name, such as John Doe,
to refer to any patient and may not contain or otherwise disclose any
patient identifying information unless the court has ordered the record
of the proceeding sealed from public scrutiny or the patient has given a
written consent (meeting the requirements of Sec. 1.475 of this part) to
that disclosure.
(b) Notice not required. An application under this section may, in
the discretion of the court, be granted without notice. Although no
express notice is required to VA or to any patient whose records are to
be disclosed, upon implementation of an order so granted VA or the
patient must be afforded an opportunity to seek revocation or amendment
of that order, limited to the presentation of evidence on the statutory
and regulatory criteria for the issuance of the court order.
(c) Requirements for order. An order under this section must be
entered in accordance with, and comply with the requirements of,
Sec. 1.493(d) and (e) of this part.
(d) Limitations on disclosure and use of patient identifying
information. (1) An order entered under this section must require the
deletion of patient identifying information from any documents made
available to the public.
(2) No information obtained under this section may be used to
conduct any investigation or prosecution of a patient, or be used as the
basis for an application for an order under Sec. 1.494 of this part.
(Authority: 38 U.S.C. 7334)
Sec. 1.496 Orders authorizing the use of undercover agents and
informants to criminally investigate employees or agents of VA.
(a) Application. A court order authorizing the placement of an
undercover agent or informant in a VA drug or alcohol abuse, HIV
infection, or sickle cell anemia treatment program as an employee or
patient may be applied for by any law enforcement or prosecutorial
agency which has reason to believe that employees or agents of the VA
treatment program are engaged in criminal misconduct.
(b) Notice. The VA facility director must be given adequate notice
of the application and an opportunity to appear and be heard (for the
limited purpose of providing evidence on the statutory and regulatory
criteria for the issuance of the court order), unless the application
asserts a belief that:
(1) The VA facility director is involved in the criminal activities
to be investigated by the undercover agent or informant; or
(2) The VA facility director will intentionally or unintentionally
disclose the proposed placement of an undercover agent or informant to
the employees or agents who are suspected of criminal activities.
(c) Criteria. An order under this section may be entered only if the
court determines that good cause exists. To make this determination the
court must find:
(1) There is reason to believe that an employee or agent of a VA
treatment program is engaged in criminal activity;
(2) Other ways of obtaining evidence of this criminal activity are
not available or would not be effective; and
(3) The public interest and need for the placement of an undercover
agent or informant in the VA treatment program outweigh the potential
injury to patients of the program, physician-patient relationships and
the treatment services.
(d) Content of order. An order authorizing the placement of an
undercover agent or informant in a VA treatment program must:
(1) Specifically authorize the placement of an undercover agent or
an informant;
(2) Limit the total period of the placement to six months;
(3) Prohibit the undercover agent or informant from disclosing any
patient identifying information obtained from the placement except as
necessary to
[[Page 46]]
criminally investigate or prosecute employees or agents of the VA
treatment program; and
(4) Include any other measures which are appropriate to limit any
potential disruption of the program by the placement and any potential
for a real or apparent breach of patient confidentiality; for example,
sealing from public scrutiny the record of any proceeding for which
disclosure of a patient's record has been ordered.
(e) Limitation on use of information. No information obtained by an
undercover agent or informant placed under this section may be used to
criminally investigate or prosecute any patient or as the basis for an
application for an order under Sec. 1.494 of this part.
(Authority: 38 U.S.C. 7334)
Secs. 1.497-1.499 [Reserved]
Release of Information From Department of Veterans Affairs Claimant
Records
Note: Sections 1.500 through 1.527 concern the availability and
release of information from files, records, reports, and other papers
and documents in Department of Veterans Affairs custody pertaining to
claims under any of the laws administered by the Department of Veterans
Affairs. As to the release of information from Department of Veterans
Affairs records other than claimant records, see Secs. 1.550 through
1.558. Sections 1.500 through 1.526 implement the provisions of 38
U.S.C. 5701, 5702.
[32 FR 10848, July 25, 1967]
Authority: Sections 1.500 to 1.527 issued under 72 Stat. 1114, 1236,
as amended; 38 U.S.C. 501, 5701.
Sec. 1.500 General.
(a) Files, records, reports, and other papers and documents
pertaining to any claim filed with the Department of Veterans Affairs,
whether pending or adjudicated, and the names and addresses of present
or former personnel of the armed services, and their dependents, in the
possession of the Department of Veterans Affairs, will be deemed
confidential and privileged, and no disclosure therefrom will be made
except in the circumstances and under the conditions set forth in
Secs. 1.501 through 1.526.
(b) A claimant may not have access to or custody of official
Department of Veterans Affairs records concerning himself or herself nor
may a claimant inspect records concerning himself or herself. Disclosure
of information from Department of Veterans Affairs records to a claimant
or his or her duly authorized agent or representative may be made,
however, under the provisions of Secs. 1.501 through 1.526.
(c) Each administration, staff office, and field facility head will
designate an employee(s) who will be responsible for initial action on
(granting or denying) requests to inspect or obtain information from or
copies of records under their jurisdiction and within the purview of
Secs. 1.501 through 1.526 unless the regulations in this part currently
contain such designations. The request should be made to the office
concerned (having jurisdiction of the record desired) or, if not known,
to the Director or Veterans Assistance Officer in the nearest VA
regional office, or to the VA Central Office, 810 Vermont Avenue NW.,
Washington, DC 20420. Personal contacts should normally be made during
the regular duty hours of the office concerned, which are 8 a.m. to 4:30
p.m., Monday through Friday, for VA Central Office and most field
facilities. Any legal question arising in a field facility concerning
the release of information will be referred to the appropriate Regional
Counsel for disposition as contemplated by Sec. 13.401 of this chapter.
In central office such legal questions will be referred to the General
Counsel. Any administrative question will be referred through
administrative channels to the appropriate administration or staff
office head.
(d) Upon denial of a request under paragraph (c) of this section,
the responsible Department of Veterans Affairs official or designated
employee will inform the requester in writing of the denial and advise
him or her that he or she may appeal the denial. The requester will also
be furnished the title and address of the Department of Veterans Affairs
official to whom the appeal should be addressed. (See Sec. 1.527.) In
each instance of denial of a request, the denial will be made a matter
of record and the record will contain a citation to the specific
provision
[[Page 47]]
of Department of Veterans Affairs regulations upon which the denial is
based.
[24 FR 8174, Oct. 8, 1959, as amended at 32 FR 10848, July 25, 1967; 38
FR 15601, June 14, 1973]
Sec. 1.501 Release of information by the Secretary.
The Secretary of Veterans Affairs or the Deputy Secretary may
release information, statistics, or reports to individuals or
organizations when in the Secretary's or Deputy Secretary's judgment
such release would serve a useful purpose.
[32 FR 10848, July 25, 1967, as amended at 54 FR 34980, Aug. 23, 1989]
Sec. 1.502 Disclosure of the amount of monetary benefits.
The monthly rate of pension, compensation, dependency and indemnity
compensation, retirement pay, subsistence allowance, or educational
assistance allowance of any beneficiary shall be made known to any
person who applies for such information.
[32 FR 10848, July 25, 1967]
Sec. 1.503 Disclosure of information to a veteran or his or her
duly authorized representative as to matters concerning the veteran
alone.
Information may be disclosed to a veteran or his or her duly
authorized representative as to matters concerning himself or herself
alone when such disclosure would not be injurious to the physical or
mental health of the veteran. If the veteran be deceased, matters
concerning him or her may be disclosed to his widow, children, or next
of kin if such disclosure will not be injurious to the physical or
mental health of the person in whose behalf information is sought or
cause repugnance or resentment toward the decedent.
[13 FR 6999, Nov. 27, 1948]
Sec. 1.504 Disclosure of information to a widow, child, or other
claimant.
Information may be disclosed to a widow, widower, child, or other
dependent parent or other claimant, or the duly authorized
representative of any of these persons as to matters concerning such
person alone when such disclosure will not be injurious to the physical
or mental health of the person to whom the inquiry relates. If the
person concerning whom the information is sought is deceased, matters
concerning such person may be disclosed to the next of kin if the
disclosures will not be injurious to the physical or mental health of
the person in whose behalf the information is sought or cause repugnance
or resentment toward the decedent.
[13 FR 6999, Nov. 27, 1948, as amended at 54 FR 34980, Aug. 23, 1989]
Sec. 1.505 Genealogy.
Information of a genealogical nature when its disclosure will not be
detrimental to the memory of the veteran and not prejudicial, so far as
may be apparent, to the interests of any living person or to the
interests of the Government may be released by the Department of
Veterans Affairs or in the case of inactive records may be released by
the Archivist of the United States if in the Archivist's custody.
[13 FR 6999, Nov. 27, 1948]
Sec. 1.506 Disclosure of records to Federal Government departments,
State unemployment compensation agencies, and the Office of
Servicemembers' Group Life Insurance.
(a) All records or documents required for official purposes by any
department or other agency of the U.S. Government or any state
unemployment compensation agency acting in an official capacity for the
Department of Veterans Affairs shall be furnished in response to an
official request, written, or oral, from such department or agency. If
the requesting department or agency does not indicate the purpose for
which the records or documents are requested and there is doubt as to
whether they are to be used for official purposes, the requesting
department or agency will be asked to specify the purpose for which they
are to be used.
(b) The Under Secretary for Benefits, Director of Insurance Service,
or designee of either in Central Office, is authorized to release
information to OSGLI (Office of Servicemembers' Group Life Insurance)
for the purpose
[[Page 48]]
of aiding in the settlement of a particular insurance case.
[33 FR 2994, Feb. 15, 1968]
Sec. 1.507 Disclosures to members of Congress.
Members of Congress shall be furnished in their official capacity in
any case such information contained in the Department of Veterans
Affairs files as may be requested for official use. However, in any
unusual case, the request will be presented to the Secretary, Deputy
Secretary, or staff or administration head for personal action. When the
requested information is of a type which may not be furnished a
claimant, the member of Congress shall be advised that the information
is furnished to him or her confidentially in his official capacity and
should be so treated by him or her. (See 38 U.S.C. 5701.) Information
concerning the beneficiary designation of a United States Government
Life Insurance or National Service Life Insurance policy is deemed
confidential and privileged and during the insured's lifetime shall not
be disclosed to anyone other than the insured or his or her duly
appointed fiduciary unless the insured or the fiduciary authorizes the
release of such information.
[32 FR 10848, July 25, 1967]
Sec. 1.508 Disclosure in cases where claimants are charged with or convicted of criminal offenses.
(a) Where incompetent claimants are charged with, or convicted of,
offenses other than those growing out of their relationship with the
Department of Veterans Affairs and in which it is desired to disclose
information from the files and records of the Department of Veterans
Affairs, the Regional Counsel, Under Secretary for Benefits, Veterans
Benefits Administration, or the General Counsel if the General Counsel
deems it necessary and proper, may disclose to the court having
jurisdiction so much of the information from the files and records of
the Department of Veterans Affairs relating to the mental condition of
such beneficiaries, the same to be available as evidence, as may be
necessary to show the mental condition of the accused and the time of
its onset. This provision, however, does not alter the general procedure
for handling offenses growing out of relations with the Department of
Veterans Affairs.
(b) When desired by a U.S. district court, the Regional Counsel or
the General Counsel may supply information as to whether any person
charged with crime served in the military or naval service of the United
States and whether the Department of Veterans Affairs has a file on such
person. If the file is desired either by the court or by the prosecution
or defense, it may be produced only in accord with Secs. 1.501 through
1.526.
[21 FR 10375, Dec. 28, 1956, as amended at 32 FR 10848, July 25, 1967;
54 FR 34980, Aug. 23, 1989]
Sec. 1.509 Disclosure to courts in proceedings in the nature
of an inquest.
The Under Secretary for Benefits, Veterans Benefits Administration,
Regional Counsels, and facility heads are authorized to make disclosures
to courts of competent jurisdiction of such files, records, reports, and
other documents as are necessary and proper evidence in proceedings in
the nature of an inquest into the mental competency of claimants and
other proceedings incident to the appointment and discharge of
guardians, curators, or conservators to any court having jurisdiction of
such fiduciaries in all matters of appointment, discharge, or accounting
in such courts.
[32 FR 10848, July 25, 1967]
Sec. 1.510 Disclosure to insurance companies cooperating with the
Department of Justice in the defense of insurance suits against the
United States.
Copies of records from the files of the Department of Veterans
Affairs will, in the event of litigation involving commercial insurance
policies issued by an insurance company cooperating with the Department
of Justice in defense of insurance suits against the United States, be
furnished to such companies without charge, provided the claimant or his
or her duly authorized representative has authorized the release of the
information contained in such records.
[[Page 49]]
If the release of information is not authorized in writing by the
claimant or his or her duly authorized representative, information
contained in the files may be furnished to such company if to withhold
same would tend to permit the accomplishment of a fraud or miscarriage
of justice. However, before such information may be released without the
consent of the claimant, the request therefor must be accompanied by an
affidavit of the representative of the insurance company, setting forth
that litigation is pending, the character of the suit, and the purpose
for which the information desired is to be used. If such information is
to be used adversely to the claimant, the affidavit must set forth facts
from which it may be determined by the General Counsel or Regional
Counsel whether the furnishing of the information is necessary to
prevent the perpetration of a fraud or other injustice. The averments
contained in such affidavit should be considered in connection with the
facts shown by the claimant's file, and, if such consideration shows the
disclosure of the record is necessary and proper to prevent a fraud or
other injustice, information as to the contents thereof may be furnished
to the insurance company or copies of the records may be furnished to
the court, workmen's compensation, or similar board in which the
litigation is pending upon receipt of a subpoena duces tecum addressed
to the Secretary of Veterans Affairs, or the head of the office in which
the records desired are located. In the event the subpoena requires the
production of the file, as distinguished from the copies of the records,
no expense to the Department of Veterans Affairs may be involved in
complying therewith, and arrangements must be made with the
representative of the insurance company causing the issuance of the
subpoena to insure submission of the file to the court without expense
to the Department of Veterans Affairs.
[32 FR 10848, July 25, 1967]
Sec. 1.511 Disclosure of claimant records in connection with
judicial proceedings generally.
(a)(1) Where a suit (or legal proceeding) has been threatened or
instituted against the Government, or a prosecution against a claimant
has been instituted or is being contemplated, the request of the
claimant or his or her duly authorized representative for information,
documents, reports, etc., shall be acted upon by the General Counsel in
Central Office, or the Regional Counsel for the field facility, who
shall determine the action to be taken with respect thereto. Where the
records have been sent to the Department of Justice in connection with
any such suit (or legal proceeding), the request will be referred to the
Department of Justice, Washington, DC, through the office of the General
Counsel, for attention. Where the records have been sent to an Assistant
U.S. Attorney, the request will be referred by the appropriate Regional
Counsel to the Assistant U.S. Attorney. In all other cases where copies
of documents or records are desired by or on behalf of parties to a suit
(or legal proceeding), whether in a Federal court or any other, such
copies shall be disclosed as provided in paragraphs (b) and (c) of this
section where the request is accompanied by court process, or paragraph
(e) of this section where the request is not accompanied by court
process. A court process, such as a court order or subpoena duces tecum
should be addressed to either the Secretary of Veterans Affairs or to
the head of the field facility at which the records desired are located.
The determination as to the action to be taken upon any request for the
disclosure of claimant records received in this class of cases shall be
made by the component having jurisdiction over the subject matter in
Central Office, or the division having jurisdiction over the subject
matter in the field facility, except in those cases in which
representatives of the component or division have determined that the
records desired are to be used adversely to the claimant, in which event
the process will be referred to the General Counsel in Central Office or
to the Regional Counsel for the field facility for disposition.
(2) Where a claim under the provisions of the Federal Tort Claims
Act has been filed, or where such a claim can reasonably be anticipated,
no information, documents, reports, etc., will be disclosed except
through the
[[Page 50]]
Regional Counsel having jurisdiction, who will limit the disclosure of
information to that which would be available under discovery
proceedings, if the matter were in litigation. Any other information may
be disclosed only after concurrence in such disclosure is provided by
the General Counsel.
(b) Disclosures in response to Federal court process--(1) Court
order. Except for drug and alcohol abuse, human immunodeficiency virus
and sickle cell anemia treatment records, which are protected under 38
U.S.C. 7332, where the records sought are maintained in a VA Privacy Act
system of records, and are retrieved by the name or other personal
identifier of a living claimant who is a citizen of the United States or
an alien lawfully admitted for permanent residence, a Federal court
order is the process necessary for the disclosure of such records. Upon
receipt of a Federal court order directing disclosure of claimant
records, such records will be disclosed. Disclosure of records protected
under 38 U.S.C. 7332 will be made in accordance with provisions of
paragraph (g) of this section.
(2) Subpoena. Except for drug and alcohol abuse, human
immunodeficiency virus and sickle cell anemia treatment records, which
are protected under 38 U.S.C. 7332, where the records sought are
maintained in a VA Privacy Act system of records, and are retrieved by
the name or other personal identifier of a claimant, a subpoena is not
sufficient authority for the disclosure of such records and such records
will not be disclosed, unless the claimant is deceased, or either is not
a citizen of the United States, or is an alien not lawfully admitted for
permanent residence. Where one of these exceptions applies, upon receipt
of a Federal court subpoena, such records will be disclosed.
Additionally, where the subpoena is accompanied by authorization from
the claimant, disclosure will be made. Regarding the disclosure of
medical records pertaining to drug and alcohol abuse, human
immunodeficiency virus and sickle cell anemia treatment, a subpoena is
insufficient for such disclosure. Specific provisions for the disclosure
of these records are set forth in paragraph (g) of this section.
(3) A disclosure of records in response to the receipt of a Federal
court process will be made to those individuals designated in the
process to receive such records, or to the court from which the process
issued. Where original records are produced, they must remain at all
times in the custody of a representative of the Department of Veterans
Affairs, and, if offered and received in evidence, permission should be
obtained to substitute a copy so that the original may remain intact in
the record. Where a court process is issued by or on behalf of a party
litigant other than the United States, such party litigant must prepay
the costs of copies in accordance with fees prescribed by Sec. 1.526(i)
and any other costs incident to producing the records.
(c) Disclosures in response to state or local court process--(1)
State or local court order. Except for drug and alcohol abuse, human
immunodeficiency virus and sickle cell anemia treatment records, which
are protected under 38 U.S.C. 7332, where the records sought are
maintained in a VA Privacy Act system of records, and are retrieved by
the name or other personal identifier of a living claimant who is a
citizen of the United States or an alien lawfully admitted for permanent
residence, a State or local court order is the process necessary for
disclosure of such records. Upon receipt of a State or local court order
directing disclosure of claimant records, disclosure of such records
will be made in accordance with the provisions set forth in paragraph
(c)(3) of this section. Disclosure of records protected under 38 U.S.C.
7332 will be made in accordance with provisions of paragraph (g) of this
section.
(2) State or local court subpoena. Except for drug and alcohol
abuse, human immunodeficiency virus and sickle cell anemia treatment
records, which are protected under 38 U.S.C. 7332, where the records
sought are maintained in a VA Privacy Act system of records, and are
retrieved by the name or other personal identifier of a claimant, a
subpoena is not sufficient authority for disclosure of such records and
such records will not be disclosed unless the claimant is deceased, or,
either is not a citizen of the United States, or is an
[[Page 51]]
alien not lawfully admitted for permanent residence. Where one of these
exceptions applies, upon receipt of a State or local court subpoena
directing disclosure of claimant records, disclosure of such records
will be made in accordance with the provisions set forth in paragraph
(c)(3), of this section. Regarding the disclosure of 7332 records, a
subpoena is insufficient for such disclosure. Specific provisions for
the disclosure of these records are set forth in paragraph (g) of this
section.
(3) Where the disclosure provisions of paragraph (c) (1) or (2) of
this section apply, disclosure will be made as follows:
(i) When the process presented is accompanied by authority from the
claimant; or,
(ii) In the absence of claimant disclosure authority, the Regional
Counsel having jurisdiction must determine whether the disclosure of the
records is necessary to prevent the perpetration of fraud or other
injustice in the matter in question. To make such a determination, the
Regional Counsel may require such additional documentation, e.g.,
affidavit, letter of explanation, or such other documentation which
would detail the need for such disclosure, set forth the character of
the pending suit, and the purpose for which the documents or records
sought are to be used as evidence. The claimant's record may also be
considered in the making of such determination. Where a court process is
received, and the Regional Counsel finds that additional documentation
will be needed to make the foregoing determination, the Regional
Counsel, or other employee having reasonable knowledge of the
requirements of this regulation, shall contact the person causing the
issuance of such court process, and advise that person of the need for
additional documentation. Where a court appearance is appropriate, and
the Regional Counsel has found that there is an insufficient basis upon
which to warrant a disclosure of the requested information, the Regional
Counsel, or other employee having reasonable knowledge of the
requirement of this regulation and having consulted with the Regional
Counsel, shall appear in court and advise the court that VA records are
confidential and privileged and may be disclosed only in accordance with
applicable Federal regulations, and to further advise the court of such
regulatory requirements and how they have not been satisified. Where
indicated, the Regional Counsel will take appropriate action to have the
matter of disclosure of the affected records removed to Federal court.
(4) Any disclosure of records in response to the receipt of State or
local court process will be made to those individuals designated in the
process to receive such records, or to the court from which such process
issued. Payment of the fees as prescribed by Sec. 1.526(i), as well as
any other cost incident to producing the records, must first be
deposited with the Department of Veterans Affairs by the party who
caused the process to be issued. The original records must remain at all
times in the custody of a representative of the Department of Veterans
Affairs, and, if there is an offer and admission of any record or
document contained therein, permission should be obtained to substitute
a copy so that the original may remain intact in the record.
(d) Notice requirements where disclosures are made pursuant to court
process. Whenever a disclosure of Privacy Act protected records is made
in response to the process of a Federal, State, or local court, the
custodian of the records disclosed will make reasonable efforts to
notify the subject of such records that such subject's records were
disclosed to another person under compulsory legal process. Such notice
should be accomplished when the process compelling disclosure becomes a
matter of public record. Generally, a notice sent to the last known
address of the subject would be sufficient to comply with this
requirement.
(e) Disclosures in response to requests when not accompanied by
court process. Requests received from attorneys or others for copies of
records for use in suits in which the Government is not involved, not
accompanied by a court process, will be handled by the component or
division having jurisdiction over the subject matter. If the request can
be complied with under Sec. 1.503
[[Page 52]]
or Sec. 1.504, and under the Privacy Act (to the extent that such
records are protected by the Privacy Act), the records requested will be
disclosed upon receipt of the required fee. If, however, the records
cannot be furnished under such authority, the applicant will be advised
of the procedure to obtain copies of records as set forth in paragraphs
(b) and (c) of this section.
(f) Suits by or against the Secretary under 38 U.S.C. 3720. Records
pertaining to the loan guaranteed, insured, or made by the Department of
Veterans Affairs may be made available by the General Counsel or the
Regional Counsel subject to the usual rules of evidence, and where
authorized under the Privacy Act, after clearance with the Department of
Justice or U.S. Attorney if appropriate.
(g) Disclosure of drug abuse, alcohol abuse, human immunodeficiency
virus and sickle cell anemia treatment or related records under court
process. Disclosure of these types of records, which are protected from
unauthorized disclosure under 38 U.S.C. 7332, may be made only in
response to an appropriate order of a court of competent jurisdiction
granted after application showing good cause therefore. In assessing
good cause the court is required to weigh the public interest and the
need for disclosure against the injury to the patient or subject, to the
physician-patient relationship, and to the treatment services. The
court, in determining the extent to which any disclosure of all or any
part of any record is necessary, shall impose appropriate safeguards
against unauthorized disclosure. As to a Federal court order satisfying
the requirements of this paragraph, the records will be disclosed as
provided in such order. As to a State or local court order satisfying
the requirements of this subsection, the disclosure of the records
involved is conditioned upon satisfying the provisions set forth in
paragraph (c)(3) of this section. If the aforementioned section is
satisfied, and a disclosure of records is to be forthcoming, the records
will be disclosed as provided in the court order.
(Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 38 U.S.C. 5701 and 38 U.S.C.
7332)
[56 FR 15833, Apr. 18, 1991]
Sec. 1.512 Disclosure of loan guaranty information.
(a) The disclosure of records or information contained in loan
guaranty files is governed by the Freedom of Information Act, 5 U.S.C.
552; the Privacy Act, 5 U.S.C. 552a; the confidentiality provisions of
38 U.S.C. 5701, and the provisions of 38 CFR 1.500-1.584. In addition,
the release of names and addresses and the release of certificates of
reasonable value, appraisal reports, property inspection reports, or
reports of inspection on individual water supply and sewage disposal
systems shall be governed by paragraphs (b), (c), (d), and (e) of this
section.
(b)(1) Upon request, any person is entitled to obtain copies of
certificates of reasonable value, appraisal reports, property inspection
reports, or reports of inspection on individual water supply and sewage
disposal systems provided that the individual identifiers of the
veteran-purchaser(s) or dependents are deleted prior to release of such
documents. However, individual identifiers may be disclosed in
accordance with paragraph (b)(2) of this section. The address of the
property being appraised or inspected shall not be considered an
individual identifier.
(Authority: 38 U.S.C. 5701(a), (c))
(2) Individual identifiers of veteran purchasers or dependents may
be disclosed when disclosure is made to the following:
(i) The individual purchasing the property;
(ii) The current owner of the property;
(iii) The individual that requested the appraisal or report;
(iv) A person or entity which is considering making a loan to an
individual with respect to the property concerned; or
(v) An attorney, real estate broker, or any other agent representing
any of these persons.
(Authority: 38 U.S.C. 5701(c), (h)(2)(D))
(c)(1) The Secretary may release the name, address, or both, and may
release other information relating to the identity of an applicant for
or recipient of a Department of Veterans Affairs-
[[Page 53]]
guaranteed, insured, or direct loan, specially adapted housing grant,
loan to finance acquisition of Department of Veterans Affairs-owned
property, release of liability, or substitution of entitlement to credit
reporting agencies, companies or individuals extending credit,
depository institutions, insurance companies, investors, lenders,
employers, landlords, utility companies and governmental agencies for
any of the purposes specified in paragraph (c)(2) of this section.
(2) A release may be made under paragraph (c)(1) of this section:
(i) To enable such parties to provide the Department of Veterans
Affairs with data which assists in determining the creditworthiness,
credit capacity, income or financial resources of the applicant for or
recipient of loan guaranty administered benefits, or verifying whether
any such data previously received is accurate; or
(ii) To enable the Secretary to offer for sale or other disposition
any loan or installment sale contract.
(Authority: 38 U.S.C. 5701(h)(2)(A), (B), (C))
(d) Upon request, the Secretary may release information relating to
the individual's loan transaction to credit reporting agencies,
companies or individuals extending credit, depository institutions,
insurance companies, investors, lenders, employers, landlords, utility
companies and governmental agencies where necessary in connection with a
transfer of information on the status of a Department of Veterans
Affairs loan account to persons or organizations proposing to extend
credit or render services or other benefits to the borrower in order
that the person or organization may determine whether to extend credit
or render services or other benefits to the borrower. Such releases
shall be made only if the person or organization seeking the information
furnishes the individual's name, address or other information necessary
to identify the individual.
(Authority: 38 U.S.C. 5701(e), (h)(2)(A) and (D))
(e) The Secretary shall maintain information in the loan guaranty
file consisting of the date, notice and purpose of each disclosure, and
the name and address of the person to whom the disclosure is made from
the loan guaranty files.
(Authority: 38 U.S.C. 5701(h)(2)(D), 5 U.S.C. 552a(c))
[47 FR 11279, Mar. 16, 1982]
Sec. 1.513 Disclosure of information contained in Armed Forces
service and related medical records in Department of Veterans
Affairs custody.
(a) Service records. Information received by the Department of
Veterans Affairs from the Departments of the Army, Navy, Air Force, and
the Department of Transportation relative to the military or naval
service of a claimant is furnished solely for the official use of the
Department of Veterans Affairs but such information may be disclosed
under the limitations contained in Secs. 1.501 through 1.526.
(b) Medical records. Information contained in the medical records
(including clinical records and social data) may be released under the
following conditions:
(1) Complete transcript of resume or medical records on request to:
(i) The Department of the Army.
(ii) The Department of the Navy (including naval aviation and United
States Marine Corps).
(iii) The Department of the Air Force.
(iv) The Department of Transportation (Coast Guard).
(v) Selective Service (in case of registrants only).
(vi) Federal or State hospitals or penal institutions when the
veteran is a patient or inmate therein.
(vii) United States Public Health Service, or other governmental or
contract agency in connection with research authorized by, or conducted
for, the Department of Veterans Affairs.
(viii) Registered civilian physicians, on the request of the
individual or his or her legal representative, when required in
connection with the treatment of the veteran. (The transcript or resume
should be accompanied by the statement ``it is expected that the
information contained herein will be treated as confidential, as is
customary in civilian professional medical practice.'')
[[Page 54]]
(ix) The veteran on request, except information contained in the
medical record which would prove injurious to his or her physical or
mental health.
(x) The next of kin on request of the individual, or legal
representative, when the information may not be disclosed to the veteran
because it will prove injurious to his or her physical or mental health,
and it will not be injurious to the physical or mental health of the
next of kin or cause repugnance or resentment toward the veteran; and
directly to the next of kin, or legal representative, when the veteran
has been declared to be insane or is dead.
(xi) Health and social agencies, on the authority of the veteran or
his or her duly authorized representative.
(2) In addition to the authorizations in paragraph (b)(1) of this
section, the Department of Justice, the Department of the Treasury, and
the U.S. Postal Service may, on request, be given pertinent information
from medical records for use in connection with investigations conducted
by these departments. Each such request shall be considered on its
merits, and the information released should be the minimum necessary in
connection with the investigation conducted by these departments.
(3) Compliance with court orders calling for the production of
medical records in connection with litigation or criminal prosecutions
will be effected in accordance with Sec. 1.511.
[13 FR 7001, Nov. 27, 1948, as amended at 32 FR 10849, July 25, 1967; 60
FR 63938, Dec. 13, 1995]
Sec. 1.514 Disclosure to private physicians and hospitals other than
Department of Veterans Affairs.
(a) When a beneficiary elects to obtain medical attention as a
private patient from a private practitioner or in a medical center other
than a Department of Veterans Affairs hospital, there may be disclosed
to such private practitioner or head of such medical center (Federal,
State, municipal, or private), such information as to the medical
history, diagnosis, findings, or treatment as is requested, including
the loan of original X-ray films, whether Department of Veterans Affairs
clinical X-rays or service department entrance and separation X-rays,
provided there is also submitted a written authorization from the
beneficiary or his or her duly authorized representative. The
information will be supplied without charge directly to the private
physician or medical center head and not through the beneficiary or
representative. In forwarding this information, it will be accompanied
by the stipulations that it is released with consent of or on behalf of
the patient and that the information will be treated as confidential, as
is customary in civilian professional medical practice.
(b) Such information may be released without charge and without
consent of the patient or his or her duly authorized representative when
a request for such information is received from:
(1) The superintendent of a State hospital for psychotic patients, a
commissioner or head of a State department of mental hygiene, or head of
a State, county, or city health department; or
(2) Any fee basis physician or institution in connection with
authorized treatment of the veteran as a Department of Veterans Affairs
beneficiary; or
(3) Any physician or medical installation treating the veteran under
emergency conditions.
[34 FR 13368, Aug. 19, 1969, as amended at 54 FR 34980, Aug. 23, 1989]
Sec. 1.514a Disclosure to private psychologists.
When a beneficiary elects to obtain therapy or analysis as a private
patient from a private psychologist, such information in the medical
record as may be pertinent may be released. Generally, only information
developed and documented by Department of Veterans Affairs psychologists
will be considered pertinent, although other information from the
medical record may be released if it is determined to be pertinent and
will serve a useful purpose to the private psychologist in rendering his
or her services. Information will be released under this section upon
receipt of the written authorization of the beneficiary or his or her
duly authorized representative. Information
[[Page 55]]
will be forwarded to private psychologists directly, not through the
beneficiary or representative, without charge and with the stipulation
that it is released with consent of or on behalf of the patient and must
be treated as confidential as is customary in regular professional
practice.
[34 FR 13368, Aug. 19, 1969]
Sec. 1.514b Disclosures to procurement organizations.
A VHA health care facility may disclose the name and home address of
an ``individual'' as defined in Sec. 1.460 to an authorized
representative of a ``procurement organization'' as also defined in
Sec. 1.460 for the purpose of facilitating a determination by the
procurement organization of whether the individual is a suitable
potential organ, eye, or tissue donor if:
(a) The individual is currently an inpatient in a VHA health care
facility;
(b) The individual is, in the clinical judgment of the individual's
primary health care provider, near death or is deceased as defined in
Sec. 1.460;
(c) The VHA health care facility has a signed agreement with the
procurement organization in accordance with the applicable requirements
of the United States Department of Health and Human Services (HHS); and
(d) The VHA health care facility has confirmed with HHS that it has
certified or recertified the organ procurement organization as provided
in the applicable HHS regulations. VA medical centers must verify
annually in January of each calendar year with FDA that an eye bank or
tissue bank has complied with the FDA registration requirements of 21
CFR part 1271 and that the registration status is active before
permitting an eye bank or tissue bank to receive protected health
information.
(Authority: 38 U.S.C. 5701(k), 7332(b)(2)(E))
[72 FR 48242, Aug. 23, 2007, as amended at 73 FR 65260, Nov. 3, 2008]
Sec. 1.515 Disclosure of information to participate in state
prescription drug monitoring programs.
(a) General. Information covered by Secs. 1.500 through 1.527 of
this part may be disclosed to State Prescription Drug Monitoring
Programs pursuant to the limitations set forth in paragraph (c) of this
section.
(b) Definitions. For the purposes of this section:
Controlled substance means any substance identified in 21 CFR part
1308 as a schedule II, III, IV, or V controlled substance.
State Prescription Drug Monitoring Program (PDMP) means a State
controlled substance monitoring program, including a program approved by
the Secretary of Health and Human Services under section 399O of the
Public Health Service Act (42 U.S.C. 280g-3).
(c) Participation in PDMPs. VA may disclose to PDMPs any of the
following information concerning the prescription of controlled
substances:
(1) Demographic information of veterans and dependents of veterans
who are prescribed a controlled substance. Examples include name,
address, and telephone number.
(2) Information about the prescribed controlled substances. Examples
include the identification of the substance by a national drug code
number, quantity dispensed, number of refills ordered, whether the
substances were dispensed as a refill of a prescription or as a first-
time request, and date of origin of the prescription.
(3) Prescriber information. Examples include the prescriber's United
States Drug Enforcement Administration-issued identification number
authorizing the individual to prescribe controlled substances and United
States Department of Health and Human Services-issued National Provider
Identifier number.
(Authority: 5 U.S.C. 552a; 38 U.S.C. 5701, 7332; 45 CFR 164.512(b))
[78 FR 9593, Feb. 11, 2013]
Sec. 1.516 Disclosure of information to undertaker concerning burial
of a deceased veteran.
When an undertaker requests information believed to be necessary in
connection with the burial of a deceased veteran, such as the name and
address of the beneficiary of the veteran's Government insurance policy,
name and address of the next of kin, rank or grade of veteran and
organization in which he or she served, character of
[[Page 56]]
the veteran's discharge, or date and place of birth of the veteran, and
it appears that the undertaker is holding the body awaiting receipt of
the information requested, the undertaker, in such instances, may be
considered the duly authorized representative of the deceased veteran
for the purpose of obtaining said information. In ordinary cases,
however, the undertaker will be advised that information concerning the
beneficiary of a Government insurance policy is confidential and cannot
be disclosed; the beneficiary will be advised immediately of the
inquiry, and the furnishing of the desired information will be
discretionary with the beneficiary. In no case will the undertaker be
informed of the net amount due under the policy or furnished information
not specifically mentioned in this paragraph.
[46 FR 62059, Dec. 22, 1981]
Sec. 1.517 Disclosure of vocational rehabilitation and education
information to educational institutions cooperating with the
Department of Veterans Affairs.
Requests from educational institutions and agencies cooperating with
the Department of Veterans Affairs in the vocational rehabilitation and
education of veterans for the use of vocational rehabilitation and
education records for research studies will be forwarded to central
office with the facility head's recommendation for review by the Under
Secretary for Benefits. Where the request to conduct a research study is
approved by the Under Secretary for Benefits, the facility head is
authorized by this section to release information for such studies from
vocational rehabilitation and education records as required: Provided,
however, That any data or information obtained shall not be published
without prior approval of the Under Secretary for Benefits and that data
contained in published material shall not identify any individual
veteran.
[30 FR 6435, May 8, 1965]
Sec. 1.518 Addresses of claimants.
(a) It is the general policy of the Department of Veterans Affairs
to refuse to furnish addresses from its records to persons who desire
such information for debt collection, canvassing, harassing or for
propaganda purposes.
(b) The address of a Department of Veterans Affairs claimant as
shown by Department of Veterans Affairs files may be furnished to:
(1) Duly constituted police or court officials upon official request
and the submission of a certified copy either of the indictment returned
against the claimant or of the warrant issued for his or her arrest.
(2) Police, other law enforcement agencies, or Federal, State,
county, or city welfare agencies upon official written request showing
that the purpose of the request is to locate a parent who has deserted
his or her child or children and that other reasonable efforts to obtain
an address have failed. The address will not be released when such
disclosure would be prejudicial to the mental or physical health of the
claimant. When an address is furnished it will be accompanied by the
stipulation that it is furnished on a confidential basis and may not be
disclosed to any other individual or agency.
(c) When an address is requested that may not be furnished under
Secs. 1.500 through 1.526, the person making the request will be
informed that a letter, or in those cases involving judicial actions,
the process or notice in judicial proceedings, enclosed in an unsealed
envelope showing no return address, with the name of the addressee
thereon, and bearing sufficient postage to cover mailing costs will be
forwarded by the Department of Veterans Affairs. If a request indicates
that judicial action is involved in which a process or notice in
judicial proceedings is required to be forwarded, the Department of
Veterans Affairs will inform the person who requests the forwarding of
such a document that the envelope must bear sufficient postage to cover
costs of mailing and certified or registered mailing fees, including
cost of obtaining receipt for the certified or registered mail when
transmission by this type special mail is desired. At the time the
letter, process, or notice in judicial proceedings is forwarded, the
facility's return address will be placed on
[[Page 57]]
the envelope. When the receipt for certified or registered mail or the
undelivered envelope is returned to the Department of Veterans Affairs,
the original sender will be notified thereof: However, the receipt or
the envelope will be retained by the Department of Veterans Affairs.
This provision will be applicable only when it does not interfere unduly
with the functions of the Service or division concerned. In no event
will letters be forwarded to aid in the collection of debts or for the
purpose of canvassing, harassing, or propaganda. Neither will a letter
be forwarded if the contents could be harmful to the physical or mental
health of the recipient.
(d) Subject to the conditions set forth in Sec. 1.922, the
Department of Veterans Affairs may disclose to consumer reporting
agencies information contained in a debtor's claims folder. Such
information may include the debtor's name and/or address, Department of
Veterans Affairs file number, Social Security number, and date of birth.
(Authority: 38 U.S.C. 5701(g))
[33 FR 10516, July 24, 1968 and 35 FR 5176, Mar. 27, 1970, as amended at
46 FR 62059, Dec. 22, 1981]
Sec. 1.519 Lists of names and addresses.
(a) Any organization wanting a list of names and addresses of
present or former personnel of the armed services and their dependents
from the Department of Veterans Affairs must make written application to
the Department of Veterans Affairs Controller, except lists of
educationally disadvantaged veterans should be requested from the
Director of the nearest regional office. The application must:
(1) Clearly identify the type or category of names and addresses
sought;
(2) Furnish proof satisfactory to the Department of Veterans Affairs
that the organization seeking the list is a ``nonprofit organization.''
Normally, evidence establishing that the organization is exempt from
taxation in accordance with the provisions of 26 U.S.C. 501 or is a
governmental body or institution will be accepted as satisfying this
criteria;
(3) Contain a statement clearly setting forth the purpose for which
the list is sought, the programs and the resources the organization
proposes to devote to this purpose, and establish how such purpose is
``directly connected with the conduct of programs and the utilization of
benefits'' under title 38, U.S.C.; and
(4) Contain a certification that the organization, and all members
thereof who will have access to the list, are aware of the penalty
provisions of 38 U.S.C. 5701(f) and will not use the list for any
purpose other than that stated in the application.
(b) If the Director of the regional office concerned finds that the
organization requesting the list of names and addresses of educationally
disadvantaged veterans is a nonprofit organization and operates an
approved program of special secondary, remedial, preparatory or other
educational or supplementary assistance to veterans as provided under
subchapter V, title 38 U.S.C., then he or she may authorize the release
of such names and addresses to the organization requesting them.
(c) The Associate Deputy Assistant Secretary for Information
Resources Management, with the concurrence of the General Counsel, is
authorized to release lists of names and addresses to organizations
which have applied for such lists in accordance with paragraph (a) of
this section if he or she finds that the purpose for which the
organization desires the names and addresses is directly connected with
the conduct of programs and the utilization of benefits under title 38
U.S.C. Lists of names and addresses authorized to be released pursuant
to this paragraph shall not duplicate lists released to other elements,
segments, or chapters of the same organization.
(d) If the list requested is one that the Department of Veterans
Affairs has previously compiled or created, in the same format, to carry
out one or more of its basic program responsibilities and it is
determined that it can be released, the list may be furnished without
charge. For other types of lists, a charge will be made in accordance
with the provisions of Sec. 1.526.
(e) Upon denial of a request, the Department of Veterans Affairs
Controller or Regional Office Director will inform the requester in
writing of the
[[Page 58]]
denial and the reasons therefor and advise the organization that it may
appeal the denial to the General Counsel. In each instance of a denial
of a request, the denial and the reasons therefor will be made a matter
of record.
(f) Section 5701(f), title 38 U.S.C., provides that any
organization, or member thereof, which uses the names and addresses
furnished it for any purpose other than one directly connected with the
conduct of programs and the utilization of benefits under title 38
U.S.C., shall be fined not more than $500 in the case of the first
offense and not more than $5,000 in the case of the subsequent offenses.
Any instance in which there is evidence of a violation of these penal
provisions will be reported in accordance with Sec. 14.560.
(Approved by the Office of Management and Budget under control number
2900-0438)
[38 FR 15601, June 14, 1973, as amended at 46 FR 62059, Dec. 22, 1981;
49 FR 32848, Aug. 17, 1984; 56 FR 59218, Nov. 25, 1991]
Sec. 1.520 Confidentiality of social data.
Persons having access to social data will be conscious of the fact
that the family, acquaintances, and even the veteran have been willing
to reveal these data only on the promise that they will be held in
complete confidence. There will be avoided direct, ill-considered
references which may jeopardize the personal safety of these individuals
and the relationship existing among them, the patient, and the social
worker, or may destroy their mutual confidence and influence, rendering
it impossible to secure further cooperation from these individuals and
agencies. Physicians in talking with beneficiaries will not quote these
data directly but will regard them as indicating possible directions
toward which they may wish to guide the patient's self-revelations
without reproaching the patient for his or her behavior or arousing
natural curiosity or suspicion regarding any informant's statement. The
representatives of service organizations and duly authorized
representatives of veterans will be especially cautioned as to their
grave responsibility in this connection.
[46 FR 62059, Dec. 22, 1981]
Sec. 1.521 Special restrictions concerning social security records.
Information received from the Social Security Administration may be
filed in the veteran's claims folder without special provisions. Such
information will be deemed privileged and may not be released by the
Department of Veterans Affairs except that information concerning the
amount of social security benefits paid to a claimant or the amount of
social security tax contributions made by the claimant may be disclosed
to the claimant or his or her duly authorized representative. Any
request from outside the Department of Veterans Affairs for other social
security information will be referred to the Social Security
Administration for such action as they deem proper.
[27 FR 9599, Sept. 28, 1962]
Sec. 1.522 Determination of the question as to whether disclosure
will be prejudicial to the mental or physical health of claimant.
Determination of the question when disclosure of information from
the files, records, and reports will be prejudicial to the mental or
physical health of the claimant, beneficiary, or other person in whose
behalf information is sought, will be made by the Chief Medical
Director; Chief of Staff of a hospital; or the Director of an outpatient
clinic.
[33 FR 19009, Dec. 20, 1968]
Sec. 1.523 To commanding officers of State soldiers' homes.
When a request is received in a Department of Veterans Affairs
regional office, center, or medical center from the commanding officer
of a State soldiers' home for information other than information
relative to the character of the discharge from a Department of Veterans
Affairs center or medical center concerning a veteran formerly domiciled
or hospitalized therein, the provisions of Sec. 1.500 are applicable,
and no disclosure will be made unless the request is accompanied by the
authorization outlined in Sec. 1.503. However, station heads, upon
receipt of a request from the commanding officer of a State soldiers'
home for the character of the discharge of a veteran from a period of
[[Page 59]]
hospital treatment or domiciliary care as a beneficiary of the
Department of Veterans Affairs, will comply with the request,
restricting the information disclosed solely to the character of the
veteran's discharge from such treatment or care. Such information will
be disclosed only upon receipt of a specific request therefor from the
commanding officer of a State soldiers' home.
[30 FR 6435, May 8, 1965. Redesignated at 78 FR 9593, Feb. 11, 2013]
Sec. 1.524 Persons authorized to represent claimants.
A duly authorized representative will be:
(a) Any person authorized in writing by the claimant to act for him
or her,
(b) An attorney who has filed the declaration required by
Sec. 14.629(b)(1) of this chapter, or
(c) His or her legally constituted fiduciary, if the claimant is
incompetent. Where for proper reasons no legally constituted fiduciary
has been or will be appointed, his or her spouse, his or her children,
or, if the claimant is unmarried, either of his or her parents shall be
recognized as the fiduciary of the claimant.
[33 FR 6536, Apr. 30, 1968]
Sec. 1.525 Inspection of records by or disclosure of information to
recognized representatives of organizations and recognized attorneys.
(a)(1) The accredited representatives of recognized organizations
(Sec. 14.627 of this chapter) holding appropriate power of attorney and
recognized attorneys (Sec. 14.629(b) of this chapter) with the written
authorization of the claimant may, subject to the restrictions imposed
by paragraph (a)(2) of this section, inspect the claims, insurance and
allied folders of any claimant upon the condition that only such
information contained therein as may be properly disclosed under
Secs. 1.500 through 1.526 will be disclosed by him or her to the
claimant or, if the claimant is incompetent, to his or her legally
constituted fiduciary. Under the same restrictions, it is permissible to
release information from and permit inspection of loan guaranty folders
in which a request for a waiver of the debt of a veteran or his or her
spouse has been received, or where there has been a denial of basic
eligibility for loan guaranty benefits. All other information in the
files shall be treated as confidential and will be used only in
determining the status of the cases inspected or in connection with the
presentation to officials of the Department of Veterans Affairs of the
claim of the claimant. The heads of field facilities and the directors
of the services concerned in Central Office will each designate a
responsible officer to whom requests for all files must be made, except
that managers of centers with insurance activities will designate two
responsible officials, recommended by the division chiefs concerned, one
responsible for claims and allied folders and the other for insurance
files. The term claimant as used in this paragraph includes insureds.
(2) In the case of a living veteran a representative acting under a
power of attorney from any person not acting on behalf of the veteran
will not be permitted to review the records of the veteran or be
furnished any information therefrom to which the person is not entitled,
i.e., information not relating to such person alone. Powers of attorney
submitted by the other person will be considered ``Limited'' and will be
so noted when associated with the veteran's records. The provisions of
this subparagraph are also applicable to recognized attorneys and the
requisite declarations filed by them.
(3) When power of attorney does not obtain, the accredited
representative will explain to the designated officer of the Department
of Veterans Affairs the reason for requesting information from the file,
and the information will be made available only when in the opinion of
the designated officer it is justified; in no circumstances will such
representatives be allowed to inspect the file; in such cases a contact
report will be made out and attached to the case, outlining the reasons
which justify the verbal or written release of the information to the
accredited representative.
(4) In any case where there is an unrevoked power of attorney or
declaration of representation, no persons or organizations other than
the one named in such document shall be afforded information from the
file except
[[Page 60]]
under the conditions set forth in Sec. 14.629(b)(2) of this chapter.
When any claimant has filed notice with the Department of Veterans
Affairs that he or she does not want his or her file inspected, such
file will not be made available for inspection.
(b)(1) Inspection of folders by accredited representatives or
recognized attorneys holding a written authorization where such cases
are being processed shall be in space assigned for such inspection.
Otherwise station heads may permit inspection of folders at the desks of
the accredited representatives, in the office(s) which they regularly
occupy.
(2) An insured or after maturity of the insurance by death of the
insured, the beneficiary, may authorize the release to a third person of
such insurance information as the insured or the beneficiary would be
entitled to receive, provided there is submitted to the Department of
Veterans Affairs, a specific authorization in writing for this purpose.
(3) Unless otherwise authorized by the insured or the beneficiary,
as the case may be, such authorized representative, recognized attorney
or accredited representative shall not release information as to the
designated beneficiary to anyone other than the insured or to the
beneficiary after death of the insured. Otherwise, information in the
insurance file shall be subject to the provisions of Secs. 1.500 through
1.526.
(4) Clinical records and medical files, including files for
outpatient treatment, may be inspected by accredited representatives or
recognized attorneys holding a written authorization only to the extent
such records or parts thereof are incorporated in the claims folder, or
are made available to Department of Veterans Affairs personnel in the
adjudication of the claim. Records or data in clinical or medical files
which are not incorporated in the claims folder or which are not made
available to Department of Veterans Affairs personnel for adjudication
purposes will not be inspected by anyone other than those employees of
the Department of Veterans Affairs whose duties require same for the
purpose of clinical diagnosis or medical treatment.
(5) Under no circumstances shall any paper be removed from a file,
except by a Department of Veterans Affairs employee, for purpose of
having an authorized copy made. Copying of material in a file shall not
be permitted except in connection with the performance of authorized
functions under the power of attorney or requisite declaration of a
recognized attorney.
(6) In any case involving litigation against the Government, whether
contemplated or initiated, inspection, subject to the foregoing, shall
be within the discretion of the General Counsel or Regional Counsel,
except that in insurance suits under 38 U.S.C. 1975, 1984, inspection
shall be within the discretion of the official having jurisdiction of
the claim. Files in such cases may be released to the Department of
Justice, but close liaison will be maintained to insure their return
intact upon termination of the litigation.
(c) Facility heads and the directors of the services concerned in
central office will be responsible for the administrative compliance
with and accomplishment of the foregoing within their jurisdiction, and
any violations of the prescribed conditions for inspection of files or
release of information therefrom will be brought to the immediate
attention of the Secretary.
(d) Any person holding power of attorney, a recognized attorney who
has filed the requisite declaration, or the accredited representative of
a recognized organization holding power of attorney shall be supplied
with a copy of each notice to the claimant respecting the adjudication
of the claim. If a claimant dies before action on the claim is
completed, the person or organization holding power of attorney or the
attorney who has filed the requisite declaration may continue to act
until the action is completed except where the power of attorney or
requisite declaration was filed on behalf of a dependent.
(e) When in developing a claim the accredited representative of a
recognized organization finds it necessary to call upon a local
representative to assemble information or evidence, he or she may make
such disclosures to the
[[Page 61]]
local representative as the circumstances of the case may warrant,
provided the power of attorney to the recognized organization contains
an authorization permitting such disclosure.
[13 FR 7002, Nov. 27, 1948, as amended at 31 FR 3459, Mar. 5, 1966; 32
FR 10849, July 25, 1967; 33 FR 6536, Apr. 30, 1968]
Sec. 1.526 Copies of records and papers.
(a) Any person desiring a copy of any record or document in the
custody of the Department of Veterans Affairs, which is subject to be
furnished under Secs. 1.501 through 1.526, must make written application
for such copy to the Department of Veterans Affairs installation having
custody of the subject matter desired, stating specifically: (1) The
particular record or document the copy of which is desired and whether
certified and validated, or uncertified, (2) the purpose for which such
copy is desired to be used.
(b) The types of services provided by the Department of Veterans
Affairs for which fees will be charged are identified in paragraph (i)
of this section.
(c) This section applies to the services furnished in paragraph (b)
of this section when rendered to members of the public by the Department
of Veterans Affairs. It does not apply to such services when rendered to
or for other agencies or branches of the Federal Government, or State
and local governments when furnishing the service will help to
accomplish an objective of the Department of Veterans Affairs, or when
performed in connection with a special research study or compilation
when the party requesting such services is charged an amount for the
whole job.
(d) When copies of a record or document are furnished under
Secs. 1.506, 1.507, 1.510, and 1.514, such copies shall be supplied
without charge. Moreover, free service may be provided, to the extent of
one copy, to persons who have been required to furnish original
documents for retention by the Department of Veterans Affairs.
(e) The following are circumstances under which services may be
provided free at the discretion of facility heads or responsible Central
Office officials:
(1) When requested by a court, when the copy will serve as a
substitute for personal court appearance of a Government witness.
(2) When furnishing the service free saves costs or yields income
equal to the direct costs of the agency providing the service. This
includes cases where the fee for the service would be included in a
billing against the Government (for example, in cost-type contracts, or
in the case of private physicians who are treating Government
beneficiaries at Government expense).
(3) When a service is occasional and incidental, not of a type that
is requested often, and if it is administratively determined that a fee
would be inappropriate in such an occasional case.
(f) When information, statistics, or reports are released or
furnished under Sec. 1.501 or Sec. 1.519, the fee charge, if any, will
be determined upon the merits of each individual application.
(g) In those cases where it is determined that a fee shall be
charged, the applicant will be advised to deposit the amount of the
lawful charge for the copy desired. The amount of such charge will be
determined in accordance with the schedule of fees prescribed in
paragraph (i) of this section. The desired copy will not be delivered,
except under court subpoena, until the full amount of the lawful charge
is deposited. Any excess deposit of $1 or more over the lawful charge
will be returned to the applicant. Excess deposits of less than $1 will
be returned upon request. When a deposit is received with an
application, such a deposit will be returned to the applicant should the
application be denied.
(h) Copies of reports or records received from other Government
departments or agencies will not be furnished except as provided in
Sec. 1.513.
(i) Fees to be charged--(1) Schedule of fees:
------------------------------------------------------------------------
Activity Fees
------------------------------------------------------------------------
(i) Duplication of document by any $0.15 per page after first 100 one-
type of reproduction process to sided pages.
produce plain one-sided paper
copies of a standard size (8\1/2\"
x 11"; 8\1/2\" x 14"; 11" x
14").
[[Page 62]]
(ii) Duplication of non-paper Actual direct cost to the Agency as
records, such as microforms, defined in Sec. 1.555(a)(2) of
audiovisual materials (motion this part to the extent that it
pictures, slides, laser optical pertains to the cost of
disks, video tapes, audiotapes, duplication.
etc.) computer tapes and disks,
diskettes for personal computers,
and any other automated media
output.
(iii) Duplication of documents by Actual direct cost to the Agency as
any type of reproduction process defined in Sec. 1.555(a)(2) of
not covered by paragraphs (i)(1) this part to the extent that it
(i) and (ii) of this section to pertains to the cost of
produce a copy in a form duplication.
reasonably usable by a requester.
(iv) Providing special information, Actual cost to the Agency including
statistics, reports, drawings, computer and manual search costs,
specifications, lists of names and copying costs, labor, and material
addresses (either in paper or and overhead expenses.
machine readable form), computer
or other machine readable output.
(v) Attestation under the seal of $3.00 per document so certified.
the Agency.
(vi) Providing abstracts or copies $10.00 per request.
of medical and dental records to
insurance companies for other than
litigation purposes.
(vii) Providing files under court Actual direct cost to the Agency.
subpoena.
------------------------------------------------------------------------
(Note. If VA regularly contracts for duplicating services related to
providing the requested records, such as the duplication of microfilm
or architect's plans and drawings, the contractor fees may be included
in the actual direct cost to the Agency)
(2) Benefit records. When VA benefit records are requested by a VA
beneficiary or applicant for VA benefits, the duplication fee for one
complete set of such records will be waived.
(Authority: 38 U.S.C. 5702(b))
(j) If the copy is to be transmitted by certified or registered
mail, airmail, or special delivery mail, the postal fees therefor shall
be added to the other fees provided in paragraph (i) of this section (or
the order must include postage stamps or stamped return envelopes for
the purpose).
(k) Those Department of Veterans Affairs installations not having
copying equipment are authorized to arrange with the nearest Department
of Veterans Affairs installation having such equipment to make the
necessary authorized copies of records or documents.
(l) Administration, staff office, and field facility heads are
authorized to designate employees to certify copies of records and
papers furnished under the provisions of paragraph (a) of this section.
[19 FR 3224, June 2, 1954, as amended at 32 FR 10850, July 25, 1967; 33
FR 9342, June 26, 1968; 35 FR 20001, Dec. 31, 1970; 37 FR 2676, Feb. 4,
1972; 39 FR 3938, Jan. 31, 1974; 53 FR 10376, Mar. 31, 1988; 54 FR
34980, Aug. 23, 1989]
Sec. 1.527 Administrative review.
(a) Any person may, in the event of a denial of his or her request
to inspect or obtain information from or copies of records within the
purview of Secs. 1.501 through 1.526, appeal such denial. Such appeal,
stating the circumstances of the denial, should be addressed, as
appropriate, to the field facility, administration, or staff office
head.
(b) A denial action not reversed by a field facility,
administration, or staff office head on appeal, will be referred through
normal channels to the General Counsel.
(c) The final agency decision in such appeals will be made by the
General Counsel or the Deputy General Counsel.
[32 FR 10850, July 25, 1967, as amended at 55 FR 21546, May 25, 1990]
Procedures for Disclosure of Records Under the Freedom of Information
Act
Sec. 1.550 Purpose.
(a) Sections 1.550 through 1.562 contain the rules followed by VA in
processing requests for records under the Freedom of Information Act
(FOIA), 5 U.S.C. 552, as amended. These regulations should be read
together with the FOIA, which provides the underlying legal basis for
the regulations and other information regarding requests for records in
the custody of a Federal agency. The regulations also should be read
together with VA's FOIA Reference Guide, available on VA's FOIA
[[Page 63]]
home page (see Sec. 1.552(a) for the pertinent Internet address) and
FOIA fee guidance provided by the Office of Management and Budget (OMB),
Uniform Freedom of Information Act Fee Schedule and Guidelines,
available at http://www.whitehouse.gov/sites/default/files/omb/assets/
omb/inforeg/foia_fee_schedule_1987.pdf.
(b) Requests for records about an individual protected by the
Privacy Act, 5 U.S.C. 552a, including one's own records and records that
pertain to an individual and that may be sensitive, will be processed
under the FOIA and the Privacy Act. In addition to the following FOIA
regulations, see Secs. 1.575 through 1.584 for regulations applicable to
Privacy Act records.
(c) Requests for records relating to a claim administered by VA
pursuant to 38 U.S.C. 5701 will be processed under the FOIA and 38
U.S.C. 5701. In addition to the following FOIA regulations, see
Secs. 1.500 through 1.527 for regulations implementing 38 U.S.C. 5701.
(d) Requests for records relating to healthcare quality assurance
reviews pursuant to 38 U.S.C. 5705 will be processed under the FOIA and
38 U.S.C. 5705. In addition to the following FOIA regulations, see 38
CFR 17.500 through 17.511 for regulations implementing 38 U.S.C. 5705.
(e) Requests for records relating to treatment for the conditions
specified in 38 U.S.C. 7332, such as drug abuse, alcoholism or alcohol
abuse, infection with the Human Immunodeficiency Virus (HIV), or sickle
cell anemia, will be processed under the FOIA and 38 U.S.C. 7332. In
addition to the following FOIA regulations, see Secs. 1.460 through
1.499 of this part for regulations implementing 38 U.S.C. 7332.
(Authority: Sections 1.550 to 1.562 issued under 72 Stat. 1114; 38
U.S.C. 501, 552, 552a, 5701, 5705, 7332.)G1986
[76 FR 51892, Aug. 19, 2011]
Sec. 1.551 Definitions.
As used in Secs. 1.550 through 1.562, the following definitions
apply:
Agency means any executive department, military department,
government corporation, government controlled corporation, or other
establishment in the executive branch of the Federal government, or
independent regulatory entity.
Appeal means a requester's written disagreement with an adverse
determination under the FOIA.
Beneficiary means a veteran or other individual who has received
benefits (including medical benefits) or has applied for benefits
pursuant to title 38, United States Code.
Benefits records means an individual's records, which pertain to
programs under any of the benefits laws administered by the Secretary of
Veterans Affairs.
Business day means the time during which typical Federal government
offices are open for normal business. It does not include Saturdays,
Sundays, or Federal legal public holidays. The term ``day'' means
business day unless otherwise specified.
Business information means confidential or privileged commercial or
financial information obtained by VA from a submitter that may be
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C.
552(b)(4).
Component means each distinct VA entity, including Administrations,
staff offices, services, or facilities.
Expedited processing means giving a FOIA request priority for
processing ahead of other pending requests because VA has determined
that the requester has shown an exceptional need or urgency for the
records as provided in these regulations.
Fees. For fees and fee-related definitions, see Sec. 1.561.
FOIA Officer means the individual within a VA component whose
responsibilities include addressing and granting or denying requests for
records under the FOIA.
Perfected request means a written FOIA request that meets the
requirements set forth in Sec. 1.554 of this part and for which there
are no remaining issues about the payment of applicable fees or any
other matter that requires resolution prior to processing.
Reading room means space made available, as needed, in VA components
where records are available for review pursuant to 5 U.S.C. 552(a)(2).
Ordinarily, the VA component providing a public reading room space will
be the component that maintains the record.
[[Page 64]]
Record means a document, a portion of a document, and information
contained within a document, and can include information derived from a
document or a database. Such documents may be maintained in paper,
electronic, and other forms, but do not include objects, such as tissue
slides, blood samples, or computer hardware.
Request means a written demand for records under the FOIA as
described below. The term request includes any action emanating from the
initial demand for records, including an appeal related to the initial
demand.
Requester means, generally, any individual, partnership,
corporation, association, or foreign or state or local government, which
has made a demand to access an agency record.
Submitter means any person or entity (including corporations, state,
local and tribal governments and foreign governments) from whom VA
obtains trade secrets or confidential commercial or financial
information either directly or indirectly.
VA means the Department of Veterans Affairs.
VA Central Office (VACO) means the headquarters of the Department of
Veterans Affairs. The mailing address is 810 Vermont Avenue, NW.,
Washington, DC 20420.
Written or in writing means communications such as letters,
photocopies of letters, electronic mail, and facsimiles (faxes), and
does not include any form of oral communication.
[76 FR 51892, Aug. 19, 2011]
Sec. 1.552 General provisions.
(a) Additional information. The following Internet link will provide
access to VA's information that is electronically available under the
FOIA: http://www.foia.va.gov/.
(b) Public Liaisons. VA has made available FOIA Public Liaisons to
assist in the resolution of disputes between the agency and the
requester. Contact information for VA's FOIA Public Liaisons can be
found on VA's FOIA home page. See Sec. 1.552(a) for the pertinent
Internet address.
(c) FOIA Annual Report. Under 5 U.S.C. 552(e), VA is required to
prepare an annual report regarding its FOIA activities. The report
includes information about FOIA requests and appeals. Copies of VA's
annual FOIA report may be obtained from VA's Chief FOIA Officer or by
visiting VA's FOIA Web site. See Sec. 1.552(a) for the pertinent
Internet address.
[76 FR 51893, Aug. 19, 2011]
Sec. 1.553 Public reading rooms and discretionary disclosures.
(a) VA maintains a public reading room electronically at its FOIA
home page on the Internet, which contains the records that the FOIA
requires to be regularly made available for public inspection and
copying. See Sec. 1.552(a) for the pertinent Internet address.
Information routinely provided to the public (press releases, for
example) may be provided without following these sections. In addition,
as a matter of policy, VA may make discretionary releases of records or
information exempt from disclosure under the FOIA when permitted to do
so in accordance with current law and governmental policy. Each VA
component is responsible for determining which of its records are
required to be made available and for making its records available
electronically.
(b) VA may process, in accordance with the FOIA, records that it
makes publicly available. Information in a public reading room record
will be redacted, for example, if its release would be a clearly
unwarranted invasion of an individual's personal privacy.
(c) Some VA components may also maintain physical public reading
rooms. Information regarding these components and their contact
information is available on VA's FOIA home page on the Internet. See
Sec. 1.552(a) for the pertinent Internet address. If the requester does
not have access to the Internet and wishes to obtain information
regarding publicly available information or components that have a
physical reading room, he or she may write VA's Chief FOIA Officer at
the following address: Department of Veterans Affairs, FOIA Service
(005R1C), 810 Vermont Avenue, NW., Washington, DC 20420.
[76 FR 51893, Aug. 19, 2011]
[[Page 65]]
Sec. 1.554 Requirements for making requests.
(a) Requests by letter and facsimile (fax). The FOIA request must be
in writing. VA accepts facsimiles (faxes) as written FOIA requests. If
the request concerns documents involving a personal privacy interest or
documents protected by another confidentiality statute, the request must
contain an image of the requester's handwritten signature. To make a
request for VA records, write directly to the FOIA Officer for the VA
component that maintains the records. If requesting records from a
particular medical facility or regional office, for example, the request
should be sent to the FOIA Office at the address listed for that
component. If requesting records from a component within VA's Central
Office, the request should be sent to the Central Office address of the
FOIA Office listed for that component. A list of FOIA contacts is
available on the Internet. A legible return address must be included
with the FOIA request; the requester may wish to include other contact
information as well, such as a telephone number and electronic mail (e-
mail) address. If the requester is not sure where to send the request,
he or she should seek assistance from the FOIA Contact for the office
believed to manage the programs whose records are being requested or
send the request to the Director, FOIA Service (005R1C), 810 Vermont
Avenue, NW., Washington, DC 20420, who will refer it for action to the
FOIA contact at the appropriate component. For the quickest possible
handling, the request letter and the envelope of any FOIA request should
be marked ``Freedom of Information Act Request.'' The requester may find
it helpful to refer to VA's FOIA home page on the Internet when making
the request; available reference material includes VA's FOIA Reference
Guide and the text of the FOIA. See Sec. 1.552(a) for the pertinent
Internet address.
(b) Requests by e-mail. VA will accept an e-mail request. If the
request concerns documents protected by another confidentiality statute,
the e-mail transmission must contain an image of the requester's
handwritten signature, such as an attachment that shows the requester's
handwritten signature. In order to assure prompt processing, e-mail FOIA
requests must be sent to official VA FOIA mailboxes established for the
purpose of receiving FOIA requests. An e-mail FOIA request that is sent
to an individual VA employee's mailbox, or to any other entity, will not
be considered a perfected FOIA request. Mailbox addresses designated to
receive e-mail FOIA requests are available on VA's FOIA home page. See
Sec. 1.552(a) for the pertinent Internet address.
(c) Making a request for another individual's records. If the
requester is making a request for records about another individual, it
will be helpful under certain circumstances to provide proof that the
requester is authorized to obtain the records, such as a legally
sufficient prior written authorization for the release of information
signed by that individual, proof that the individual is deceased (e.g.,
a copy of a death certificate), or proof that the requester is the
authorized representative of the individual or the individual's estate.
This information will assist in determining whether and to what degree
the records may be released.
(d) Description of records sought. (1) The requester must describe
the records sought in enough detail to allow VA personnel to locate them
with a reasonable amount of effort. To the extent possible, the
requester should include specific information about each record sought,
such as the date, title or name, author, recipient, and subject matter
of the document. Generally, the more information the requester provides
about the record sought, the more likely VA personnel will be able to
locate any responsive records. Wide-ranging requests that lack
specificity, or contain descriptions of very general subject matters,
with no description of specific records, may be considered ``not
reasonably described'' and thus not subject to further processing.
(2) Requests for voluminous amounts of records may be placed in a
complex track of a multitrack processing system pursuant to
Sec. 1.556(b); such requests also may meet the criteria for ``unusual
circumstances,'' which are processed in accordance with Sec. 1.556(c)
[[Page 66]]
and may require more than twenty (20) business days to process despite
the agency's exercise of due diligence.
(3) If the FOIA Officer determines that the request does not
reasonably describe the records sought, the FOIA Officer will tell the
requester why the request is insufficient. The FOIA Officer will also
provide an opportunity to discuss the request by documented telephonic
communication or written correspondence in order to modify it to meet
the requirements of this section.
(4) The time limit for VA to process the FOIA request will not start
until the FOIA Officer determines that the requester has reasonably
described the records sought in the FOIA request. If the FOIA Officer
seeks additional clarification regarding the request and does not
receive the requester's written response within thirty (30) calendar
days of the date of its communication with the requester, he or she will
conclude that the requester is no longer interested in pursuing the
request and will close VA's files on the request.
(e) Agreement to pay fees. The time limit for processing the request
will be tolled while any fee issue is unresolved. If the FOIA Officer
anticipates that the fees for processing the request will exceed the
amount that the requester has stated that he or she is willing to pay or
will amount to more than $25.00 or the amount set by OMB fee guidelines,
whichever is higher, the FOIA Officer will notify the requester. In such
cases, the FOIA Officer may require the requester to agree in writing to
pay the estimated fee. In addition, if the estimated fee amount exceeds
$250.00 or the requester previously has failed to pay a FOIA fee in a
timely manner, the FOIA Officer may require the requester to pay the
FOIA fee in advance, before beginning to process the FOIA request. If
the FOIA Officer does not receive a written response within ten (10)
business days of the date of the FOIA Officer's communication with the
requester, the FOIA Officer will conclude that the requester is no
longer interested in pursuing the request and will close the request. If
the requester seeks a fee waiver under Sec. 1.561, he or she nonetheless
may state a willingness to pay a fee up to an identified amount in the
event that the fee waiver is denied; this will allow the component to
process the requester's FOIA request while considering the fee waiver
request. If the requester is required to pay a fee in advance, and pays
the fee, and if VA later determines that the requester overpaid or is
entitled to a full or partial fee waiver, a refund will be made. (For
more information on the collection of fees under the FOIA, see
Sec. 1.561.)
(f) The requester must meet all of the requirements of this section
in order for the request to be perfected.
[76 FR 51893, Aug. 19, 2011]
Sec. 1.555 Responsibility for responding to requests.
(a) General. Except as stated in paragraphs (c) and (d) of this
section, the FOIA Officer of the component that first receives a request
for records is responsible for either processing the request or
referring it to the designated FOIA Officer for the appropriate
component. Offices that are within the component responsible for
processing the FOIA request shall provide the component FOIA Officer all
documents responsive to the request that are in their possession as of
the date the search for responsive records begins.
(b) Authority to grant or deny requests. Each component shall
designate a FOIA Officer who is responsible for making determinations
pursuant to the FOIA.
(c) Consultations and referrals. When a component FOIA Officer
determines that the component maintains responsive records that either
originated with another component or agency, or which contain
information provided by, or of substantial interest to, another
component or agency, then the FOIA Officer shall either:
(1) Respond to the request, after consulting with the component or
the agency that originated or has a substantial interest in the records
involved; or
(2) Refer the responsibility for responding to the request or
portion of the request to the component best able to determine whether
to disclose the relevant records, or to the agency that created or
initially acquired the record as long as that agency is subject to the
FOIA. Ordinarily, the component or
[[Page 67]]
agency that created or initially acquired the record will be presumed to
be best able to make the disclosure assessment. The referring component
shall document the referral and maintain a copy of the records that it
refers.
(d) Classified information. The FOIA Officer will refer requests for
records containing classified information to the component or agency
that classified the information for processing.
(e) Notice of referral. Whenever a FOIA Officer refers all or part
of a request and responsibility for processing the request to another
component or agency, the FOIA Officer will notify the requester in
writing of the referral and provide the requester the name and contact
information of the entity to which the request has been referred, after
consulting with the entity to which the request is to be referred to
ensure that the request is being referred to the correct entity. If only
part of the request was referred, the FOIA Officer will inform the
requester and identify the referred part at the time of the referral or
in the final response.
[76 FR 51894, Aug. 19, 2011]
Sec. 1.556 Timing of responses to requests.
(a) General. Components ordinarily shall respond to requests
according to their order of receipt and within the time frames
established under the FOIA. If a request for expedited processing is
granted in accordance with paragraph (d) of this section, such request
will be processed prior to requests in either of the tracks described in
paragraph (b) of this section.
(b) Multitrack processing. (1) VA will use two processing tracks in
addressing a request for records: Simple and complex, based upon the
amount of work and/or time needed to process the request, including
consideration of the number of pages involved.
(2) The FOIA Officer shall advise the requester of the track into
which the request has been placed and of the criteria of the faster
track. The FOIA Officer will provide requesters in the slower track the
opportunity to limit the scope of their requests in order to qualify for
processing in the faster track. The FOIA Officer may contact the
requester either by telephone or in writing, whichever the FOIA Officer
determines is most efficient and expeditious; telephonic communication
will be documented.
(c) Unusual circumstances. (1) FOIA Officers may encounter ``unusual
circumstances,'' where it is not possible to meet the statutory time
limits for processing the request. In such cases, the FOIA Officer will
extend the twenty (20)-business day time limit for ten (10) more
business days and notify the requester in writing of the unusual
circumstances and of the date by which it expects to complete processing
of the request. Where the extension is for more than ten (10) business
days, the FOIA Officer will provide the requester with an opportunity to
either modify the request so that it may be processed within the time
limits or to arrange an alternative time period with the FOIA Officer
for processing the request or a modified request. Unusual circumstances
consist of the following:
(i) The need to search for and collect the requested records from
field facilities or other components other than the office processing
the request;
(ii) The need to search for, collect and examine a voluminous amount
of separate and distinct records that are the subject of a single
request; or
(iii) The need for consultation with two or more components or
another agency having a substantial interest in the subject matter of a
request.
(2) Where the FOIA Officer reasonably believes that certain requests
from the same requester, or a group of requesters acting in concert,
actually constitute the same request that would otherwise satisfy the
unusual circumstances specified in this paragraph, and the requests
involve clearly related matters, the FOIA Officer may aggregate those
requests. Multiple requests involving unrelated matters will not be
aggregated.
(d) Expedited processing. (1) Requests will be processed out of the
order in which they were received by the component responsible for
processing the FOIA request and given expedited treatment when VA
determines that:
(i) The failure to obtain the requested records on an expedited
basis
[[Page 68]]
could reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) There is an urgency to inform the public concerning actual or
alleged Federal government activity, if the request is made by a person
primarily engaged in disseminating information;
(iii) In the discretion of the FOIA Officer, the request warrants
such treatment; or
(iv) There is widespread and exceptional interest in which possible
questions exist about the government's integrity which affect public
confidence.
(2) A requester who is seeking expedited processing must submit a
statement, certified to be true to the best of the requester's knowledge
and belief, providing a detailed basis for how there is a compelling
need. VA may waive the requirement for certification of the statement of
compelling need as a matter of administrative discretion.
(3) Within ten (10) calendar days of its receipt of a request for
expedited processing, the FOIA Officer shall determine whether to grant
the request and will provide the requester written notice of the
decision. If the FOIA Officer grants a request for expedited processing,
the FOIA Officer shall give the request priority and process it as soon
as practicable. If the FOIA Officer denies the request for expedited
processing, the requester may appeal the denial, which appeal shall be
addressed expeditiously.
[76 FR 51894, Aug. 19, 2011]
Sec. 1.557 Responses to requests.
(a) Acknowledgement of requests. When a request for records is
received by a component designated to receive requests, the component's
FOIA Officer will assign a request number for future reference and send
the requester a written acknowledgement of receipt.
(b) Processing of requests. Upon receipt of a perfected request by
the appropriate component, the FOIA Officer will make a reasonable
effort to search for records responsive to the request. The FOIA Officer
ordinarily will include as responsive those records in its possession
and control as of the date the search for responsive records began. This
includes searching for records in electronic form or format, unless to
do so would interfere significantly with the agency's automated
information systems. If fees for processing the request are due under
Sec. 1.561, the FOIA Officer shall inform the requester of the amount of
the fee as provided in Sec. 1.554(e) and Sec. 1.561. When a request is
granted in part, the FOIA Officer shall mark, redact, or annotate the
records to be released to show the amount of information deleted and,
where technically feasible, indicate the exemption at the place of
redaction unless doing so would harm an interest protected by an
applicable exemption. The FOIA Officer will provide the records in the
form or format sought by the requester, if readily reproducible in that
form or format.
(c) Time limits for processing requests. Ordinarily, a component
will have twenty (20) business days from the date of VA's receipt of the
request to make a determination whether to grant the request in its
entirety, grant the request in part, or deny the request in its
entirety. If the request must be referred to another component, the
response time will begin on the date that the request was received by
the appropriate component, but in any event not later than ten (10)
business days after the referring office receives the FOIA request.
(d) Adverse determinations of requests. Whenever a component makes
an adverse determination denying the request in any respect, the
component FOIA Officer shall promptly notify the requester of the
adverse determination in writing. Adverse determinations include the
following: A determination to withhold a requested record in whole or in
part; a determination that the requested record does not exist or cannot
be located; a determination that a record is not readily reproducible in
the form or format sought by the requester; a determination that what
has been sought is not a record subject to the FOIA; a determination on
any disputed fee matter, including the denial of a fee waiver; and a
denial of a request for expedited treatment. The adverse determination
notice must be signed by the component head or the component's FOIA
Officer, and will include the following:
[[Page 69]]
(1) The name and title or position of the person responsible for the
adverse determination;
(2) A brief statement of the reason(s) for the denial, including any
FOIA exemptions applied by the FOIA Officer in denying the request;
(3) The amount of information withheld in number of pages or other
reasonable form of estimation; an estimate is not necessary if the
volume is indicated on redacted pages disclosed in part or if providing
an estimate would harm an interest provided by an applicable exemption;
and
(4) Notice that the requester may appeal the adverse determination
and a description of the requirements for an appeal under Sec. 1.559 of
this part.
[76 FR 51894, Aug. 19, 2011]
Sec. 1.558 Business information.
(a) General. Business information received by VA from a submitter
will be considered under the FOIA pursuant to this section and in
accordance with the requirements set forth in Sec. 1.557 of this part.
(b) Designation of business information. The submitter of business
information may designate that specific records or portions of records
submitted are business information, at the time of submission or within
a reasonable time thereafter. The submitter must use good faith efforts
in designating records that the submitter claims could be expected to
cause substantial competitive harm and thus warrant protection under
Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). The submitter may mark the
record submission as confidential or use the words ``business
information'' or describe the specific records that contain business
information. Such designation will be considered, but will not control,
the FOIA Officer's decision on disclosing the material. A designation
will remain in effect for a period of not more than 10 years after
receipt by VA, unless the submitter provides acceptable justification
for a longer period. The submitter may designate a shorter period by
including an expiration date.
(c) Notices to submitters. (1) The FOIA Officer shall promptly
notify the submitter in writing of a FOIA request seeking the
submitter's business information whenever the FOIA Officer has reason to
believe that the information may be protected under FOIA Exemption 4, 5
U.S.C. 552(b)(4), regarding business information. The written notice
will provide the submitter an opportunity to object to disclosure of any
specified portion of the records within the reasonable time period
specified in the notice. The notice will either describe in detail the
business information requested (e.g., an entire contract identified by a
unique number) or shall provide copies of the requested record(s) or
record portions containing the business information. When notification
of a voluminous number of submitters is required, the FOIA Officer may
notify the submitters by posting or publishing the notice in a place
reasonably likely to accomplish notification.
(2) If the FOIA Officer determines to release business information
over the objection(s) of the submitter, the FOIA Officer will notify the
submitter pursuant to paragraph (e) of this section.
(3) Whenever the FOIA Officer notifies the requester of a final
decision, the FOIA Officer will also notify the submitter by separate
correspondence. This notification may be contained in VA's FOIA
decision.
(4) Exceptions to this notice provision are contained in paragraph
(f) of this section.
(d) Opportunity to object to disclosure. When notification to a
submitter is made pursuant to paragraph (c)(1) of this section, the
submitter may object to the disclosure of any specified portion(s) of
the record(s). The submitter's objection(s) must be in writing,
addressed to the FOIA Officer, and must be received by the reasonable
date specified in the FOIA Officer's notice in order for VA to consider
such objections. If the submitter has any objection to disclosure of the
record(s) requested, or any specified portion(s) thereof, the submitter
must identify the specific record(s) or portion(s) of records for which
objection(s) are made. The objection will specify in detail all grounds
for withholding any record(s) or portion(s) of the record(s) upon which
disclosure is opposed under any exemption of the FOIA. In particular, if
the submitter is asserting
[[Page 70]]
that the record is protected under Exemption 4, 5 U.S.C. 552(b)(4), it
must show why the information is a trade secret or commercial or
financial information that is privileged or confidential. The submitter
must explain in detail how and why disclosure of the specified records
would likely cause substantial competitive harm in the case of a
required submission or state whether the records would customarily be
disclosed by the submitter upon a request from the public in the case of
a voluntary submission. The submitter's objections must be contained
within a single written response; oral responses or subsequent, multiple
responses generally will not be considered. If the submitter does not
respond to the notice described in paragraph (c)(1) of this section
within the specified time limit, the submitter will be considered to
have no objection to disclosure of the information.
(e) Consideration of objection(s) and notice of intent to disclose.
The FOIA Officer will consider all pertinent factors, including but not
limited to the submitter's timely objection(s) to disclosure and the
specific grounds provided by the submitter for non-disclosure in
deciding whether to disclose business information. Information provided
by the submitter after the specified time limit and after the component
has made its disclosure decision generally will not be considered. In
addition to meeting the requirements of Sec. 1.557, when a FOIA Officer
decides to disclose business information over the objection of the
submitter, the FOIA Officer will provide the submitter with written
notice, which includes:
(1) A statement of the reason(s) why each of the submitter's
disclosure objections were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date of not less than ten (10) days from
the date of the notice (to allow the submitter time to take necessary
legal action).
(f) Exceptions to notice requirements. The notice requirements set
forth in paragraphs (c) and (g) of this section will not apply if:
(1) The FOIA Officer determines that the information should not be
disclosed;
(2) The information lawfully has been published or has been
officially made available to the public; or
(3) Disclosure of the information is required by statute, other than
the FOIA, or by a regulation issued in accordance with the requirements
of Executive Order 12600 or any other Executive Order.
(g) Notice to requesters. When VA receives a request for records
that may contain confidential commercial information protected by FOIA
Exemption 4, 5 U.S.C. 552(b)(4), regarding business information, the
requester will be notified that the request is being processed under the
provisions of this regulation and, as a consequence, there may be a
delay in receiving a response. The notice to the requester will not
include any of the specific information contained in the records being
requested.
[76 FR 51895, Aug. 19, 2011]
Sec. 1.559 Appeals.
(a) Informal resolution prior to appeal. Before filing an appeal,
the requester may wish to communicate with the contact person listed in
the FOIA response or the component's FOIA Officer to see if the issue
can be resolved informally. Informal resolution of the requester's
concerns may be appropriate, for example, where additional details may
be required for a search for responsive records. Communication with VA
at this level does not toll the time limit for filing an administrative
appeal.
(b) How to file and address a written appeal. The requester may
appeal an adverse determination denying the request, in any respect,
except for those concerning Office of Inspector General records, to the
VA Office of the General Counsel (024), 810 Vermont Avenue, NW.,
Washington, DC 20420. Any appeals concerning Office of Inspector General
records must be sent to the VA Office of Inspector General, Office of
Counselor (50), 810 Vermont Avenue, NW., Washington, DC 20420. The FOIA
appeal must be in writing. VA accepts facsimiles (faxes) as written FOIA
appeals. If the appeal concerns documents protected by another
confidentiality statute, the appeal must contain an image of the
requester's handwritten signature, such as an attachment that
[[Page 71]]
shows the requester's handwritten signature. Information regarding where
to fax the FOIA appeal is available on VA's FOIA home page on the
Internet. See Sec. 1.552(a) for the pertinent Internet address. A
legible return address must be included with the FOIA appeal; the
requester may include other contact information as well, such as a
telephone number and electronic mail (e-mail) address.
(c) How to file an e-mail appeal. VA will accept a FOIA appeal by e-
mail. If the appeal concerns documents protected by another
confidentiality statute, the email transmission must contain an image of
the requester's handwritten signature, such as an attachment that shows
the requester's handwritten signature. In order to assure prompt
processing, e-mail FOIA appeals must be sent to official VA FOIA
mailboxes established for the purpose of receiving FOIA appeals; an e-
mail FOIA appeal that is sent to an individual VA employee's mailbox, or
to any other entity, will not be considered a perfected FOIA appeal.
Mailbox addresses designated to receive e-mail FOIA appeals are
available on VA's FOIA home page. See Sec. 1.552(a) for the pertinent
Internet address.
(d) Time limits and content of appeal. The appeal to the VA OGC
(024), or VA Office of Inspector General (50), as appropriate, must be
postmarked no later than sixty (60) calendar days after the date of the
adverse determination. The appeal must clearly identify the
determination being appealed, including any assigned request number.
Other information should also be included, such as the name of the FOIA
officer, the address of the component, the date of the component's
determination, if any, and the precise subject matter of the appeal. If
appealing only a portion of the component's determination, the requester
must specify which part of the determination he or she is appealing.
Copies of the request and VA's response, if any, should be included with
the appeal. An appeal is not perfected until VA either receives the
information identified above or the appeal is otherwise sufficiently
defined. Appeals should be marked ``Freedom of Information Act Appeal.''
The General Counsel, Deputy General Counsel, or Assistant General
Counsel with jurisdiction over information disclosure matters (024) will
act on behalf of the Secretary on all appeals under this section, except
those pertaining to the Office of Inspector General. The designated
official in the Office of Inspector General will act on all appeals
pertaining to Office of Inspector General records. A determination by
the General Counsel, Deputy General Counsel, or Assistant General
Counsel, or designated official within the Office of Inspector General,
will be the final VA action.
(e) Responses to appeals. The Office of the General Counsel or the
Office of Inspector General, as applicable, will provide the requester a
decision on the appeal in writing. The decision will include a brief
statement of the reasons for the decision, including, if applicable, any
FOIA exemptions applied and notice of the right to judicial review of
the decision.
(f) Court review. Unless the requester has been deemed to have
exhausted all administrative remedies, he or she must first appeal the
adverse determination in accordance with this section before seeking
review by a court.
[76 FR 51895, Aug. 19, 2011]
Sec. 1.560 Maintenance and preservation of records.
(a) Each component will preserve all correspondence pertaining to
FOIA requests as well as copies of pertinent records, until disposition
is authorized under title 44, U.S.C., or the National Archives and
Records Administration's General Records Schedule 14.
(b) The FOIA Officer must maintain copies of records that are the
subject of a pending request, appeal, or lawsuit under the FOIA. A copy
of all records shall be provided promptly to the Office of the General
Counsel upon request.
[76 FR 51895, Aug. 19, 2011]
Sec. 1.561 Fees.
(a) General. Components will charge for processing requests under
the FOIA in accordance with paragraph (c) of this section, except where
fees are limited under paragraph (e) of this section or where a waiver
or reduction of fees
[[Page 72]]
is granted under paragraph (n) of this section. The FOIA Officer will
collect all applicable fees before releasing copies of requested records
to the requester. Requesters must pay fees by check or money order made
payable to the Treasury of the United States. Note that fees associated
with requests from VA beneficiaries, applicants for VA benefits, or
other individuals, for records retrievable by their names or individual
identifiers processed under 38 U.S.C. 5701 (records associated with
claims for benefits) and 5 U.S.C. 552a (the Privacy Act), will be
assessed fees in accordance with the applicable regulatory fee
provisions relating to VA benefits and VA Privacy Act records.
(b) Definitions. For purposes of assessing or determining fees, the
following definitions apply:
(1) All other requests means a request that does not fit into any of
the categories in this section.
(2) Commercial use request means a request from or on behalf of one
who seeks information for a use or purpose that furthers his or her
commercial, trade, or profit interests, to include furthering those
interests through litigation. To the extent possible, the FOIA Officer
shall determine the use to which the requester will put the requested
records. When the intended use of the records is unclear from the
request or when there is reasonable cause to doubt the use to which the
requester will put the records sought, the FOIA Officer will provide the
requester a reasonable opportunity to submit further clarification.
(3) Direct costs mean expenses that VA incurs in responding to a
FOIA request, including searching for and duplicating (and in the case
of commercial use requesters, reviewing) records to respond to a FOIA
request. Direct costs include, for example, the salary of the employee
performing the work (the basic rate of pay for the employee, plus 16
percent of that rate to cover benefits costs) and the cost of operating
duplication machinery. Direct costs do not include overhead expenses,
such as the costs of space or heating and lighting of the facility where
the records are kept.
(4) Duplication means making a copy of a record necessary to respond
to a FOIA request; copies may take the form of paper, microform,
audiovisual materials or machine readable-documentation (e.g., magnetic
tape or disk), among others. The copy provided must be in a form that is
reasonably usable by requesters.
(5) Educational institution means a pre-school, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, an institution of professional education, or
an institution of vocational education, which operates a program or
programs of scholarly research. To be in this category, the FOIA Officer
must make a determination that the request is authorized by and made
under the auspices of a qualifying institution and that the records are
sought to further a scholarly research goal of the institution and not
the individual goal of the requester or a commercial goal of the
institution.
(6) Non-commercial scientific institution means an institution that
is not operated on a ``commercial'' basis (as that term is defined in
paragraph (b)(2) of this section) and that is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry. To be in this
category, the requester must show that the request is authorized by and
is made under the auspices of a qualifying institution and that the
records are sought to further scientific research and are not sought for
a commercial use.
(7) Representative of the news media means any person or entity that
gathers information of potential interest to a segment of the public,
uses its editorial skills to turn the raw materials into a distinct
work, and distributes that work to an audience. The term news means
information that is about current events or that would be of current
interest to the public. Examples of news media entities include
television or radio stations broadcasting to the public at large and
publishers of periodicals (but only if such entities qualify as
disseminators of ``news'') who
[[Page 73]]
make their products available for purchase or subscription or free
distribution to the general public. These examples are not all-
inclusive. As methods of news delivery evolve (for example, the adoption
of the electronic dissemination of newspapers through telecommunications
services), such alternative media that otherwise meet the criteria for
news media shall be considered to be news-media entities. Freelance
journalists may be regarded as working for a news-media entity if they
can demonstrate a solid basis for expecting publication through that
entity, even though not actually employed by it. A publication contract
would be the clearest proof, but the requester's publication history may
also be considered. To be in this category, the requester must not be
seeking the requested records for a commercial use; a records request
supporting the requester's news-dissemination function shall not be
considered to be for a commercial use.
(8) Review means examining a record including audiovisual,
electronic mail, data bases, documents and the like in response to a
commercial use request to determine whether any portion of it is exempt
from disclosure. Review includes the deletion of exempt material or
other processing necessary to prepare the record(s) for disclosure.
Review time includes time spent contacting any submitter and considering
or responding to any objections to disclosure made by a submitter under
Sec. 1.558(d) but does not include time spent resolving general legal or
policy issues regarding the application of exemptions. Review costs are
recoverable even if, after review, a record is not disclosed.
(9) Search means the process of looking for and retrieving records
that are responsive to a request, including line-by-line or page-by-page
identification of responsive information within records. Search also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format. The component will
conduct searches in the most efficient and least expensive manner
reasonably possible. The FOIA Officer may charge for time spent
searching even if he or she does not locate any responsive record(s) or
if any record(s) located is withheld as entirely exempt from disclosure.
(c) Categories of requesters and fees to be charged each category.
There are four categories of FOIA requesters: Commercial use requesters,
educational and non-commercial scientific institutional requesters,
representatives of the news media, and all other requesters. Unless a
waiver or reduction of fees is granted under paragraph (n) of this
section or is limited in accordance with paragraph (e) of this section,
specific levels of fees will be charged for each category as follows:
(1) Commercial use requesters. Subject to the limitations in
paragraph (e) of this section, commercial use requesters will be charged
the full direct costs of the search, review, and duplication of records
sought. Commercial use requesters are not entitled to 2 hours of free
search time or the first 100 pages of reproduced documents free of
charge.
(2) Educational and non-commercial scientific institution
requesters. Subject to the limitations in paragraph (e) of this section,
educational and non-commercial scientific institution requesters will be
charged for the cost of reproduction only, excluding charges for the
first 100 pages.
(3) Representative of the news media. Subject to the limitations in
paragraph (e) of this section, representatives of the news media will be
charged for the cost of reproduction only, excluding charges for the
first 100 pages.
(4) All other requesters. Subject to the limitations in paragraph
(e) of this section, a requester who does not fit into any of the
categories in this section will be charged fees to recover the full,
reasonable direct cost of searching for and reproducing records
responsive to a request, except that the first 2 hours of search time
and the first 100 pages of reproduction will be furnished without cost.
(d) Fees to be charge.d The following fees will be used when
calculating the fee owed pursuant to a request or appeal. The fees also
apply to making documents available for public inspection and copying
under Sec. 1.553 of this part.
[[Page 74]]
(1) Search--(i) Search fees. When a FOIA Officer determines that a
search fee applies, the fee will be based on the hourly salary of VA
personnel performing the search, plus 16 percent of the salary. The type
and number of personnel involved in addressing the request or appeal
depends on the nature and complexity of the request and responsive
records. Fees are charged in quarter hour increments.
(ii) Computer search. In cases where a computer search is required,
the requester will be charged the direct costs of conducting the search,
although certain requesters (as provided in paragraph (e)(1) of this
section) will be charged no search fee and certain other requesters (as
provided in paragraph (e)(4) of this section) will be entitled to the
cost of 2 hours of employee search time without charge. When a computer
search is required, VA will combine the hourly cost of operating the
computer with the employee's salary, plus 16 percent of the salary. When
the cost of the search (including the employee time, to include the cost
of developing a search methodology, and the cost of the computer to
process a request) equals the dollar amount of 2 hours of the salary of
the employee performing the search, VA will begin to assess charges for
a computer search.
(2) Duplication. When a duplication fee applies, the FOIA Officer
will charge a fee of 15 cents per one-sided page for a paper photocopy
of a record; no more than one copy will be provided. For other forms of
duplication, including electronic copies, the FOIA Officer will charge
the direct costs of that duplication.
(3) Review. When review fees apply, review fees will be charged at
the initial level of review only, when the component responsible for
processing the request determines whether an exemption applies to a
record or portion of a record. For review at the appeal level, no fee
will be charged for an exemption that has already been applied and is
determined to still apply. However, record or record portions withheld
under an exemption that is subsequently determined not to apply may be
reviewed again to determine whether any other exemption not previously
considered applies; the costs of that review are chargeable. Review fees
will be charged at the same rates as those charged for search under
paragraph (d)(1) of this section.
(e) Limitations on charging fees. (1) No search fee will be charged
for requests by educational institutions, non-commercial scientific
institutions, or representatives of the news media.
(2) No search or review fee will be charged for a quarter hour
period unless more than half of that period is required for search or
review.
(3) No search fee (or duplication fee, when records are not sought
for commercial use and the request is made by an educational or
noncommercial scientific institution whose purpose is scholarly or
scientific research, or a representative of the news media) will be
charged in accordance with this section if the agency fails to comply
with the time limit under Sec. 1.556(a), and if no unusual or
exceptional circumstances apply to the processing of the request
pursuant to Sec. 1.556(c). Duplication and search fees may still be
charged to commercial use requesters. Duplication fees may still be
charged for ``all other'' requesters.
(4) Except for requesters seeking records for a commercial use, the
following will be provided without charge:
(i) The first 100 pages of duplication (or the cost equivalent).
(ii) The first 2 hours of search time (or the cost equivalent).
(5) Whenever a total fee calculated under paragraph (d) of this
section is less than $25.00, no fee will be charged.
(6) VA may provide free copies of records or free services in
response to an official request from other government agencies and
Congressional offices and when a component head or designee determines
that doing so will assist in providing medical care to a VA patient or
will otherwise assist in the performance of VA's mission.
(f) The following table summarizes the chargeable fees for each
category of requester.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Category Search fees Review fees Duplication fees
--------------------------------------------------------------------------------------------------------------------------------------------------------
(1) Commercial Use................. Yes.................................. Yes.................................. Yes.
[[Page 75]]
(2) Educational Institution........ No................................... No................................... Yes (100 pages free).
(3) Non-Commercial Scientific No................................... No................................... Yes (100 pages free).
Institution.
(4) News Media..................... No................................... No................................... Yes (100 pages free).
(5) All other...................... Yes (2 hours free)................... No................................... Yes (100 pages free).
--------------------------------------------------------------------------------------------------------------------------------------------------------
(g) Fee schedule. If it is determined that a fee will be charged for
processing the FOIA request, VA will charge the requester to search for,
review, and duplicate the requested records according to his or her fee
category (see Sec. 1.561(c)) and the following fee schedule. In
addition, VA will charge the requester for any special handling or
services performed in connection with processing the request and/or
appeal. The following fees will be used by VA; these fees apply to
services performed in making documents available for public inspection
and copying under Sec. 1.553 as well. The duplicating fees also are
applicable to records provided in response to requests made under the
Privacy Act. Fees will not be charged under either the FOIA or the
Privacy Act where the total amount of fees for processing the request is
$25.00 or less or where the requester has met the requirements for a
statutory fee waiver.
(1) Search and review (review applies to commercial-use requesters
only). Fees are based on the average hourly salary (base salary plus DC
locality payment), plus 16 percent for benefits, of employees in the
following three categories. Fees will be increased annually consistent
with Congressionally approved pay increases. Fees are charged in
quarter-hour increments.
(i) Clerical--Based on GS-6, Step 5, pay (all employees at GS-7 and
below).
(ii) Professional--Based on GS-11, Step 7, pay (all employees at GS-
8 through GS-12).
(iii) Managerial--Based on GS-14, Step 2, pay (all employees at GS-
13 and above).
Note to paragraph (g)(1): Fees for the current fiscal year are
posted on VA's FOIA home page (see Sec. 1.552(a) for the pertinent
Internet address).
(2) Schedule of fees:
------------------------------------------------------------------------
Activity Fees
------------------------------------------------------------------------
(i) Duplication of standard size (8\1/ $0.15 per page.
2\" x 11"; 8\1/2\" x 14"; 11" x
14") paper records.
(ii) Duplication of non-paper items Direct cost to VA.
(e.g., x-rays), paper records which
are not of a standard size (e.g.,
architectural drawings/construction
plans or EKG tracings), or other items
which do not fall under category (1),
in paragraph (c)(1) of this section.
(iii) Record search by manual (non- Basic hourly salary rate of the
automated) methods. employee(s), plus 16 percent.
*Note--If a component uses a
single class of personnel for
a search, e.g., all clerical
or professional, an average
rate for the grades of
employees involved in the
search may be used.
(iv) Record search using automated Direct cost to perform search.
methods, such as by computer.
(v) Record review (for Commercial Use Basic hourly rate of employees
Requesters only). performing review to determine
whether to release records and
to prepare them for release,
plus 16 percent.
(vi) Other activities, such as: Direct cost to VA.
Attesting under seal or certifying
that records are true copies; sending
records by special methods; forwarding
mail; compiling and providing special
reports, drawings, specifications,
statistics, lists, abstracts or other
extracted information; generating
computer output; providing files under
court process where the federal
government is not a party to, and does
not have an interest in, the
litigation.
------------------------------------------------------------------------
[[Page 76]]
(h) Notification of fee estimate or other fee issues. (1) Threshold
for charging fees: VA will not charge the requester if the fee is $25.00
or less.
(2) When a FOIA Officer determines or estimates that the fees to be
charged under this section will amount to more than $25.00 or the amount
set by OMB fee guidelines, whichever is higher, the FOIA Officer will
notify the requester in writing of the actual or estimated amount of the
fees, and ask the requester to provide written assurance of the payment
of all fees or fees up to a designated amount, unless he or she has
indicated a willingness to pay fees as high as those anticipated. Any
such agreement to pay the fees shall be memorialized in writing. In
addition, when the requester does not provide sufficient information
upon which VA can identify a fee category (see paragraphs (c)(1) through
(4) of this section), or an issue otherwise arises regarding fee
assessment, the FOIA Officer may seek clarification from the requester.
In either case, the timeline for responding to the request will be
tolled and no further work will be done on it until the fee issue has
been resolved. If VA does not receive a written response within ten (10)
days after contacting the requester regarding a fee issue, it will
assume that the requester no longer wishes to pursue the request and
will close the file on the request.
(i) Charges for other services. Apart from the other provisions of
this section, when special service, such as certifying that records are
true copies or sending them by other than ordinary mail, is requested,
and the FOIA Officer chooses to provide such a service as a matter of
administrative discretion, the direct costs of providing the service
ordinarily will be charged.
(j) Charging interest. The FOIA Officer may charge interest on any
unpaid bill starting on the 31st day following the date of billing the
requester. Interest charges will be assessed at the rate provided in 31
U.S.C. 3717 and will accrue until payment is received by the component.
Components will follow the provisions of the Debt Collection Act of 1982
(Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative
procedures, including the use of consumer reporting agencies, collection
agencies, and offset.
(k) Aggregating requests. Whenever a FOIA Officer reasonably
believes that a requester or group of requesters acting together is
attempting to divide a request into a series of requests for the purpose
of avoiding fees, the FOIA Officer may aggregate those requests and
charge accordingly. FOIA Officers may presume that multiple requests of
this type made within a 30-day period have been made in order to avoid
fees. Where requests are separated by a longer period, the FOIA Officer
will aggregate them only where there exists a solid basis for
determining that aggregation is warranted under all the circumstances
involved. Multiple requests involving unrelated matters will not be
aggregated.
(l) Advance payments. (1) For requests other than those described in
paragraphs (l)(2) and (l)(3) of this section, a FOIA Officer shall not
require the requester to make an advance payment--in other words, a
payment made before work is begun or continued on a request. Payment
owed for work already completed (i.e., a prepayment before copies are
sent to the requester) is not an advance payment.
(2) Where a FOIA Officer determines or estimates that a total fee to
be charged under this section will be more than $250.00, the FOIA
Officer may require the requester to make an advance payment of an
amount up to the amount of the entire anticipated fee before beginning
to process the request.
(3) Where the requester previously has failed to pay a properly
charged FOIA fee to any component within thirty (30) days of the date of
billing, a FOIA Officer may require the requester to pay the full amount
due, plus any applicable interest as specified in this section, and to
make an advance payment of the full amount of any anticipated fee,
before the FOIA Officer begins to process a new request or continues to
process a pending request from that requester.
(4) When the requester has a history of prompt payment, the FOIA
Officer may accept a satisfactory assurance of full payment from the
requester rather than an advance payment.
[[Page 77]]
(5) In cases in which a FOIA Officer requires advance payment or
payment is due under this section, the timeline for responding to the
request will be tolled and further work will not be done on it until the
required payment is received.
(m) Other statutes specifically providing for fees. The fee schedule
of this section does not apply to fees charged under any statute that
specifically requires an agency to set and collect fees for particular
types of records. Where records responsive to requests are maintained
for distribution by agencies operating such statutorily-based fee
schedule programs, the FOIA Officer will inform requesters of the steps
for obtaining records from those sources so that they may do so most
economically.
(n) Requirements for waiver or reduction of fees. (1) Waiving or
reducing fees. Fees for processing the request may be waived if the
requester meets the criteria listed in this section. The requester must
submit adequate justification for a fee waiver; without adequate
justification, the request will be denied. The FOIA Officer may, at his
or her discretion, communicate with the requester to request additional
information, if necessary, regarding the fee waiver request. If such
additional information is not received within ten (10) business days, VA
will assume that the requester does not agree to pay the required fees
and the file will be closed pending receipt of the requester's notice
that he or she will pay the required fee. Requests for fee waivers are
decided on a case-by-case basis; receipt of a fee waiver in the past
does not establish entitlement to a fee waiver each time a request is
submitted.
(2) Records responsive to a request will be furnished without charge
or at a charge reduced below that established under paragraph (d) of
this section where a FOIA Officer determines, based on all available
evidence, that the requester has demonstrated that:
(i) Disclosure of the requested information is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government, and
(ii) Disclosure of the information is not primarily in the
commercial interest of the requester.
(3) To determine whether the fee waiver requirement under paragraph
(n)(2)(i) of this section is met, the FOIA Officer will consider the
following factors:
(i) The subject of the request: Whether the subject of the requested
records concerns ``the operations or activities of the government.'' The
subject of the requested records must concern identifiable operations or
activities of the federal government, with a connection that is direct
and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities. The disclosable portions of the
requested records must be meaningfully informative about government
operations or activities in order to be ``likely to contribute'' to an
increased public understanding of those operations or activities. The
disclosure of information that already is in the public domain, in
either a duplicative or a substantially identical form, would not be as
likely to contribute to such understanding where nothing new would be
added to the public's understanding.
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure: Whether disclosure of the
requested information will contribute to ``public understanding.'' The
disclosure must contribute to the understanding of a reasonably broad
audience of persons interested in the subject, as opposed to the
individual understanding of the requester. The requester's expertise in
the subject area and ability and intention to effectively convey
information to the public shall be considered. It shall be presumed that
a representative of the news media will satisfy this consideration.
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of government operations or activities. The
public's understanding of the subject in question, as compared to the
level of public understanding existing prior to the disclosure, must be
enhanced by
[[Page 78]]
the disclosure to a significant extent. The FOIA Officer will not make
value judgments about whether information that would contribute
significantly to public understanding of the operations or activities of
the government is important enough to be made public.
(4) To determine whether the fee waiver requirement under paragraph
(n)(2)(ii) of this section is met, the FOIA Officer will consider the
following factors:
(i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure. The FOIA Officer shall consider any commercial
interest of the requester (with reference to the definition of
``commercial use'' in paragraph (b)(2) of this section), or of any
person on whose behalf the requester may be acting, that would be
furthered by the requested disclosure. Requesters shall be given an
opportunity in the administrative process to provide explanatory
information regarding this consideration.
(ii) The primary interest in disclosure: Whether any identified
commercial interest of the requester is sufficiently large, in
comparison with the public interest in disclosure, that disclosure is
``primarily in the commercial interest of the requester.'' A fee waiver
or reduction is justified where the public interest standard is
satisfied and that public interest is greater in magnitude than that of
any identified commercial interest in disclosure. The FOIA Officer
ordinarily shall presume that where a news media requester has satisfied
the public interest standard, the public interest will be the interest
primarily served by disclosure to that requester. Disclosure to data
brokers or others who merely compile and market government information
for direct economic return will not be presumed to primarily serve the
public interest.
(5) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a fee waiver will be granted only for
those records which so qualify.
(6) Requests for the waiver or reduction of fees should address the
factors listed in paragraph (n)(3) and (4) of this section, insofar as
they apply to each request. FOIA Officers will exercise their discretion
to consider the cost-effectiveness of their investment of administrative
resources in this decision-making process, however, in deciding to grant
waivers or reductions of fees.
(7) An appeal from an adverse fee determination will be processed in
accordance with Sec. 1.559.
(8) When considering a request for fee waiver, VA may require proof
of identity.
[76 FR 51895, Aug. 19, 2011]
Sec. 1.562 Other rights and services.
Nothing in this part shall be construed to entitle any person, as of
right, to any service or to the disclosure of any record to which such
person is not entitled under the FOIA.
(Authority:Sections 1.550 to 1.562 issued under 72 Stat. 1114; 38 U.S.C.
501)
[76 FR 51895, Aug. 19, 2011]
Safeguarding Personal Information in Department of Veterans Affairs
Records
Note: Sections 1.575 through 1.584 concern the safeguarding of
individual privacy from the misuse of information from files, records,
reports, and other papers and documents in Department of Veterans
Affairs custody. As to the release of information from Department of
Veterans Affairs claimant records see Sec. 1.500 series. As to the
release of information from Department of Veterans Affairs records other
than claimant records see Sec. 1.550 series. Section 1.575 series
implement the provisions of Pub. L. 93-579, December 31, 1974, adding a
section 552a to title 5 U.S.C. providing that individuals be granted
access to records concerning them which are maintained by Federal
agencies, and for other purposes.
Source: 40 FR 33944, Aug. 12, 1975, unless otherwise noted.
Sec. 1.575 Social security numbers in veterans' benefits matters.
(a) Except as provided in paragraph (b) of this section, no one will
be denied any right, benefit, or privilege provided by law because of
refusal to disclose to the Department of Veterans Affairs a social
security number.
(b) VA shall require mandatory disclosure of a claimant's or
beneficiary's social security number (including the social security
number of a dependent
[[Page 79]]
of a claimant or beneficiary) on necessary forms as prescribed by the
Secretary as a condition precedent to receipt or continuation of receipt
of compensation or pension payable under the provisions of chapters 11,
13 and 15 of title 38, United States Code, provided, however, that a
claimant shall not be required to furnish VA with a social security
number for any person to whom a social security number has not been
assigned. VA may also require mandatory disclosure of an applicant's
social security number as a condition for receiving loan guaranty
benefits and a social security number or other taxpayer identification
number from existing direct and vendee loan borrowers and as a condition
precedent to receipt of a VA-guaranteed loan, direct loan or vendee
loan, under chapter 37 of title 38, United States Code. (Pub. L. 97-365,
sec. 4)
(c) A person requested by VA to disclose a social security number
shall be told, as prescribed by Sec. 1.578(c), whether disclosure is
voluntary or mandatory. The person shall also be told that VA is
requesting the social security number under the authority of title 38
U.S.C., or in the case of existing direct or vendee loan borrowers,
under the authority of 26 U.S.C. 6109(a) in conjunction with sections
145 and 148 of Pub. L. 98-369, or in the case of loan applicants, under
the authority of section 4 of Pub. L. 97-365. The person shall also be
told that it will be used in the administration of veterans' benefits in
the identification of veterans or persons claiming or receiving VA
benefits and their records, that it may be used in making reports to the
Internal Revenue Service where required by law, and to determine whether
a loan guaranty applicant has been identified as a delinquent taxpayer
by the Internal Revenue Service, and that such taxpayers may have their
loan applications rejected, and that it may be used to verify social
security benefit entitlement (including amounts payable) with the Social
Security Administration and, for other purposes where authorized by both
title 38 U.S.C., and the Privacy Act of 1974, (Pub. L. 93-579), or,
where required by another statute. (Pub. L. 97-365, sec. 4)
(Authority: 38 U.S.C. 5101)
[44 FR 22068, Apr. 13, 1979, as amended at 51 FR 21750, June 16, 1986;
56 FR 25044, June 3, 1991]
Sec. 1.576 General policies, conditions of disclosure, accounting
of certain disclosures, and definitions.
(a) The Department of Veterans Affairs will safeguard an individual
against an invasion of personal privacy. Except as otherwise provided by
law or regulation its officials and employees will:
(1) Permit an individual to determine what records pertaining to him
or her will be collected, maintained, used, or disseminated by the
Department of Veterans Affairs.
(2) Permit an individual to prevent records pertaining to him or
her, obtained by the Department of Veterans Affairs for a particular
purpose, from being used or made available for another purpose without
his or her consent.
(3) Permit an individual to gain access to information pertaining to
him or her in Department of Veterans Affairs records, to have a copy
made of all or any portion thereof, and to correct or amend such
records.
(4) Collect, maintain, use, or disseminate any record of
identifiable personal information in a manner that assures that such
action is for a necessary and lawful purpose, that the information is
correct and accurate for its intended use, and that adequate safeguards
are provided to prevent misuse of such information.
(5) Permit exemptions from records requirements provided in 5 U.S.C.
552a only where an important public policy need for such exemption has
been determined pursuant to specific statutory authority.
(b) The Department of Veterans Affairs will not disclose any record
contained in a system of records by any means of communication to any
person or any other agency except by written request of or prior written
consent of the individual to whom the record pertains unless such
disclosure is:
(1) To those officers and employees of the agency which maintains
the record
[[Page 80]]
and who have a need for the record in the performance of their duties;
(2) Required under 5 U.S.C. 552;
(3) For a routine use of the record compatible with the purpose for
which it was collected;
(4) To the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity pursuant to title 13 U.S.C.;
(5) To a recipient who has provided the Department of Veterans
Affairs with advance adequate written assurance that the record will be
used solely as a statistical research or reporting record, and the
record is to be transferred in a form that is not individually
identifiable;
(6) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the U.S. Government, or for evaluation by the
Administrator of General Services or designee to determine whether the
record has such value;
(7) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, and if the head of the agency or instrumentality has made a
written request to the Department of Veterans Affairs specifying the
particular portion desired and the law enforcement activity for which
the record is sought;
(8) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(9) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(10) To the Comptroller General, or any authorized representatives,
in the course of the performance of the duties of the General Accounting
Office; or
(11) Pursuant to the order of a court of competent jurisdiction.
(c) With respect to each system of records (i.e., a group of records
from which information is retrieved by the name of the individual or by
some identifying number, symbol, or other identifying particular
assigned to the individual) under Department of Veterans Affairs
control, the Department of Veterans Affairs will (except for disclosures
made under paragraph (b)(1) or (2) of this section) keep an accurate
accounting as follows:
(1) For each disclosure of a record to any person or to another
agency made under paragraph (b) of this section, maintain information
consisting of the date, nature, and purpose of each disclosure, and the
name and address of the person or agency to whom the disclosure is made;
(2) Retain the accounting made under paragraph (c)(1) of this
section for at least 5 years or the life of the record, whichever is
longer, after the disclosure for which the accounting is made;
(3) Except for disclosures made under paragraph (b)(7) of this
section, make the accounting under paragraph (c)(1) of this section
available to the individual named in the record at his or her request;
and
(4) Inform any person or other agency about any correction or
notation of dispute made by the agency in accordance with Sec. 1.579 of
any record that has been disclosed to the person or agency if an
accounting of the disclosure was made.
(d) For the purposes of Secs. 1.575 through 1.584, the parent of any
minor, or the legal guardian of any individual who has been declared
incompetent due to physical or mental incapacity or age by a court of
competent jurisdiction, may act on behalf of the individual.
(e) Section 552a(i), title 5 U.S.C., provides that:
(1) Any officer or employee of the Department of Veterans Affairs,
who by virtue of his or her employment or official position, has
possession of, or access to, Department of Veterans Affairs records
which contain individually identifiable information the disclosure of
which is prohibited by 5 U.S.C. 552a or by Sec. 1.575 series established
thereunder, and who knowing that disclosure of the specific material is
so prohibited, willfully discloses the material in any manner to any
person or agency not entitled to receive it, shall be
[[Page 81]]
guilty of a misdemeanor and fined not more than $5,000.
(2) Any officer or employee of the Department of Veterans Affairs
who willfully maintains a system of records without meeting the notice
requirements of 5 U.S.C. 552a(e)(4) (see Sec. 1.578(d)) shall be guilty
of a misdemeanor and fined not more than $5,000.
(3) Any person who knowingly and willfully requests or obtains any
record concerning an individual from the Department of Veterans Affairs
under false pretenses shall be guilty of a misdemeanor and fined not
more than $5,000.
(f) For purposes of Sec. 1.575 series the following definitions
apply:
(1) The term agency includes any executive department, military
department, Government corporation, Government controlled corporation,
or other establishment in the executive branch of the government
(including the Executive Office of the President), or any independent
regulatory agency.
(2) The term individual means a citizen of the United States or an
alien lawfully admitted for permanent residence.
(3) The term maintain includes maintain, collect, use, or
disseminate.
(4) The term record means any item, collection, or grouping of
information about an individual that is maintained by an agency,
including, but not limited to, his or her education, financial
transactions, medical history, and criminal or employment history and
that contains his or her name, or the identifying number, symbol, or
other identifying particular assigned to the individual, such as a
finger or voice print or a photograph.
(5) The term system of records means a group of any records under
the control of any agency from which information is retrieved by the
name of the individual or by some identifying number, symbol, or other
identifying particular assigned to the individual.
(6) The term statistical record means a record in a system of
records maintained for statistical research or reporting purposes only
and not used in whole or in part in making any determination about an
identifiable individual except as provided by section 8 of title 13
U.S.C.
(7) The term routine use means, with respect to the disclosure of a
record, the use of such record for a purpose which is compatible with
the purpose for which it was collected.
(g) When the Department of Veterans Affairs provides by a contract
for the operation by or on behalf of the Department of Veterans Affairs
of a system of records to accomplish a Department of Veterans Affairs
function, the Department of Veterans Affairs will, consistent with its
authority, cause the requirements of 5 U.S.C. 552a (as required by
subsection (m)) and those of the Sec. 1.575 series to be applied to such
system. For the purposes of 5 U.S.C. 552a(i) and Sec. 1.576(e) any such
contractor and any employee of such contractor, if such contract is
agreed to on or after September 27, 1975, will be considered to be an
employee of the Department of Veterans Affairs.
(h) The Department of Veterans Affairs will, for the purposes of 5
U.S.C. 552a, consider that it maintains any agency record which it
deposits with the Administrator of General Services for storage,
processing, and servicing in accordance with section 3103 of title 44
U.S.C. Any such record will be considered subject to the provisions of
Sec. 1.575 series implementing 5 U.S.C. 552a and any other applicable
Department of Veterans Affairs regulations. The Administrator of General
Services is not authorized to disclose such a record except to the
Department of Veterans Affairs, or under regulations established by the
Department of Veterans Affairs which are not inconsistent with 5 U.S.C.
552a.
(i) The Department of Veterans Affairs will, for the purposes of 5
U.S.C. 552a, consider that a record is maintained by the National
Archives of the United States if it pertains to an identifiable
individual and was transferred to the National Archives prior to
September 27, 1975, as a record which has sufficient historical or other
value to warrant its continued preservation by the United States
Government. Such records are not subject to the provisions of 5 U.S.C.
552a except that a statement generally describing such
[[Page 82]]
records (modeled after the requirements relating to records subject to
subsections (e)(4)(A) through (G) of 5 U.S.C. 552a) will be published in
the Federal Register.
(j) The Department of Veterans Affairs will also, for the purposes
of 5 U.S.C. 552a, consider that a record is maintained by the National
Archives of the United States if it pertains to an identifiable
individual and is transferred to the National Archives on or after
September 27, 1975, as a record which has sufficient historical or other
value to warrant its continued preservation by the United States
Government. Such records are exempt from the requirements of 5 U.S.C.
552a except subsections (e)(4) (A) through (G) and (e)(9) thereof.
(Authority: 38 U.S.C. 501)
[40 FR 33944, Aug. 12, 1975, as amended at 40 FR 58644, Dec. 18, 1975;
47 FR 16323, Apr. 16, 1982]
Sec. 1.577 Access to records.
(a) Except as otherwise provided by law or regulation any individual
upon request may gain access to his or her record or to any information
pertaining to him or her which is contained in any system of records
maintained by the Department of Veterans Affairs. The individual will be
permitted, and upon his or her request, a person of his or her own
choosing permitted to accompany him or her, to review the record and
have a copy made of all or any portion thereof in a form comprehensible
to him or her. The Department of Veterans Affairs will require, however,
a written statement from the individual authorizing discussion of that
individual's record in the accompanying person's presence.
(b) Any individual will be notified, upon request, if any Department
of Veterans Affairs system of records named contains a record pertaining
to him or her. Such request must be in writing, over the signature of
the requester. The request must contain a reasonable description of the
Department of Veterans Affairs system or systems of records involved, as
described at least annually by notice published in the Federal Register
describing the existence and character of the Department of Veterans
Affairs system or systems of records pursuant to Sec. 1.578(d). The
request should be made to the office concerned (having jurisdiction over
the system or systems of records involved) or, if not known, to the
Director or Department of Veterans Affairs Officer in the nearest
Department of Veterans Affairs regional office, or to the Department of
Veterans Affairs Central Office, 810 Vermont Avenue, NW., Washington, DC
20420. Personal contact should normally be made during the regular duty
hours of the office concerned, which are 8:00 a.m. to 4:30 p.m., Monday
through Friday for Department of Veterans Affairs Central Office and
most field facilities. Identification of the individual requesting the
information will be required and will consist of the requester's name,
signature, address, and claim, insurance or other identifying file
number, if any, as a minimum. Additional identifying data or documents
may be required in specified categories as determined by operating
requirements and established and publicized by the promulgation of
Department of Veterans Affairs regulations. (5 U.S.C. 552a(f)(1))
(c) The department or staff office having jurisdiction over the
records involved will establish appropriate disclosure procedures and
will notify the individual requesting disclosure of his or her record or
information pertaining to him or her of the time, place and conditions
under which the Department of Veterans Affairs will comply to the extent
permitted by law and Department of Veterans Affairs regulation. (5
U.S.C. 552a(f)(2))
(d) Nothing in 5 U.S.C. 552a, however, allows an individual access
to any information compiled in reasonable anticipation of civil action
or proceeding. (5 U.S.C. 552a(d)(5))
(e) Fees to be charged, if any, to any individual for making copies
of his or her record shall not include the cost of any search for and
review of the record, and will be as follows:
[[Page 83]]
------------------------------------------------------------------------
Activity Fees
------------------------------------------------------------------------
(1) Duplication of documents by any $0.15 per page after first 100 one-
type of reproduction process to sided pages.
produce plain one-sided paper
copies of a standard size (8\1/2\"
x 11"; 8\1/2\" x 14"; 11" x
14").
(2) Duplication of non-paper Actual direct cost to the Agency as
records, such as microforms, defined in Sec. 1.555(a)(2) of
audiovisual materials (motion this part to the extent that it
pictures, slides, laser optical pertains to the cost of
disks, video tapes, audio tapes, duplication.
etc.), computer tapes and disks,
diskettes for personal computers,
and any other automated media
output.
(3) Duplication of document by any Actual direct cost to the Agency as
type of reproduction process not defined in Sec. 1.555(a)(2) of
covered by paragraphs (e)(1) or this part to the extent that it
(2) of this section to produce a pertains to the cost of
copy in a form reasonably usable duplication.
by the requester.
------------------------------------------------------------------------
Note. Fees for any activities other than duplication by any type of
reproducing process will be assessed under the provisions of
Sec. 1.526(i) or (j) of this part of any other applicable law.)
(f) When VA benefit records, which are retrievable by name or
individual identifier of a VA beneficiary or applicant for VA benefits,
are requested by the individual to whom the record pertains, the
duplication fee for one complete set of such records will be waived.
(Authority: 5 U.S.C. 552a(f)(5)) (38 U.S.C. 501)
[40 FR 33944, Aug. 12, 1975, as amended at 47 FR 16323, Apr. 16, 1982;
53 FR 10380, Mar. 31, 1988; 55 FR 21546, May 25, 1990; 78 FR 45457, July
29, 2013]
Sec. 1.578 [Reserved]
Sec. 1.579 Amendment of records.
(a) Any individual may request amendment of any Department of
Veterans Affairs record pertaining to him or her. Not later than 10 days
(excluding Saturdays, Sundays, and legal public holidays) after the date
or receipt of such request, the Department of Veterans Affairs will
acknowledge in writing such receipt. The Department of Veterans Affairs
will complete the review to amend or correct a record as soon as
reasonably possible, normally within 30 days from the receipt of the
request (excluding Saturdays, Sundays, and legal public holidays) unless
unusual circumstances preclude completing action within that time. The
Department of Veterans Affairs will promptly either:
(1) Correct any part thereof which the individual believes is not
accurate, relevant, timely or complete; or
(2) Inform the individual of the Department of Veterans Affairs
refusal to amend the record in accordance with his or her request, the
reason for the refusal, the procedures by which the individual may
request a review of that refusal by the Secretary or designee, and the
name and address of such official.
(Authority: 5 U.S.C. 552a(d)(2))
(b) The administration or staff office having jurisdiction over the
records involved will establish procedures for reviewing a request from
an individual concerning the amendment of any record or information
pertaining to the individual, for making a determination on the request,
for an appeal within the Department of Veterans Affairs of an initial
adverse Department of Veterans Affairs determination, and for whatever
additional means may be necessary for each individual to be able to
exercise fully, his or her right under 5 U.S.C. 552a.
(1) Headquarters officials designated as responsible for the
amendment of records or information located in Central Office and under
their jurisdiction include, but are not limited to: Secretary; Deputy
Secretary, as well as other appropriate individuals responsible for the
conduct of business within the various Department of Veterans Affairs
administrations and staff offices. These officials will determine and
advise the requester of the identifying information required to relate
the request to the appropriate record, evaluate and grant or deny
requests to amend, review initial adverse determinations upon request,
and assist requesters desiring to amend or appeal initial adverse
determinations or learn further of the provisions for judicial review.
[[Page 84]]
(2) The following field officials are designated as responsible for
the amendment of records or information located in facilities under
their jurisdiction, as appropriate: The Director of each Center,
Domiciliary, Medical Center, Outpatient Clinic, Regional Office, Supply
Depot, and Regional Counsels. These officials will function in the same
manner at field facilities as that specified in the preceding
subparagraph for headquarters officials in Central Office.
(Authority: 5 U.S.C. 552a(f)(4))
(c) Any individual who disagrees with the Department of Veterans
Affairs refusal to amend his or her record may request a review of such
refusal. The Department of Veterans Affairs will complete such review
not later than 30 days (excluding Saturdays, Sundays, and legal public
holidays) from the date on which the individual request such review and
make a final determination unless, for good cause shown, the Secretary
extends such 30-day period. If, after review, the Secretary or designee
also refuses to amend the record in accordance with the request the
individual will be advised of the right to file with the Department of
Veterans Affairs a concise statement setting forth the reasons for his
or her disagreement with the Department of Veterans Affairs refusal and
also advise of the provisions for judicial review of the reviewing
official's determination. (5 U.S.C. 552a(g)(1)(A))
(d) In any disclosure, containing information about which the
individual has filed a statement of disagreement, occurring after the
filing of the statement under paragraph (c) of this section, the
Department of Veterans Affairs will clearly note any part of the record
which is disputed and provide copies of the statement (and, if the
Department of Veterans Affairs deems it appropriate, copies of a concise
statement of the Department of Veterans Affairs reasons for not making
the amendments requested) to persons or other agencies to whom the
disputed record has been disclosed. (5 U.S.C. 552a(d)(4)) (38 U.S.C.
501)
[47 FR 16324, Apr. 16, 1982]
Sec. 1.580 Administrative review.
(a) Upon denial or a request under 38 CFR 1.577 or 1.579, the
responsible Department of Veterans Affairs official or designated
employee will inform the requester in writing of the denial, cite the
reason or reasons and the Department of Veterans Affairs regulations
upon which the denial is based, and advise that the denial may be
appealed to the General Counsel.
(b) The final agency decision in such appeals will be made by the
General counsel or the Deputy General Counsel.
(Authority: 38 U.S.C. 501)
[40 FR 33944, Aug. 12, 1975, as amended at 47 FR 16324, Apr. 16, 1982;
55 FR 21546, May 25, 1990]
Sec. 1.581 [Reserved]
Sec. 1.582 Exemptions.
(a) Certain systems of records maintained by the Department of
Veterans Affairs are exempted from provisions of the Privacy Act in
accordance with exemptions (j) and (k) of 5 U.S.C. 552a.
(b) Exemption of Inspector General Systems of Records. The
Department of Veterans Affairs provides limited access to Inspector
General Systems of Records as indicated.
(1) The following systems of records are exempted pursuant to the
provisions of 5 U.S.C. 552a(j)(2) from subsections (c)(3) and (4), (d),
(e)(1), (2) and (3), (e)(4) (G), (H) and (I), (e)(5) and (8), (f) and
(g) of 5 U.S.C. 552a; in addition, the following systems of records are
exempted pursuant to the provisions of 5 U.S.C. 552a(k)(2) from
subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) of 5
U.S.C. 552a:
(i) Investigation Reports of Persons Allegedly Involved in
Irregularities Concerning VA and Federal Laws, Regulations, Programs,
etc.--VA (11 VA51); and
(ii) Inspector General Complaint Center Records--VA (66VA53).
(2) These exemptions apply to the extent that information in those
systems is subject to exemptions pursuant to 5 U.S.C. 552a (j)(2) and
(k)(2).
(3) For the reasons set forth, the systems of records listed under
paragraph (b)(1) of this section are exempted under sections 552a (j)(2)
and (k)(2)
[[Page 85]]
from the following provisions of 5 U.S.C. 552a:
(i) 5 U.S.C. 552a(c)(3) requires that upon request, an agency must
give an individual named in a record an accounting which reflects the
disclosure of the record to other persons or agencies. This accounting
must state the date, nature and purpose of each disclosure of the record
and the name and address of the recipient. The application of this
provision would alert subjects to the existence of the investigation and
identify that such persons are subject of that investigation. Since
release of such information to subjects would provide them with
significant information concerning the nature of the investigation, it
could result in the altering or destruction of derivative evidence which
is obtained from third parties, improper influencing of witnesses, and
other activities that could impede or compromise the investigation.
(ii) 5 U.S.C. 552a(c)(4), (d), (e)(4) (G) and (H), (f) and (g)
relate to an individual's right to be notified of the existence of
records pertaining to such individual; requirements for identifying an
individual who requests access to records; the agency procedures
relating to access to records and the amendment of information contained
in such records; and the civil remedies available to the individual in
the event of adverse determinations by an agency concerning access to or
amendment of information contained in record systems. This system is
exempt from the foregoing provisions for the following reasons: To
notify an individual at the individual's request of the existence of
records in an investigative file pertaining to such individual or to
grant access to an investigative file could interfere with investigative
and enforcement proceedings, threaten the safety of individuals who have
cooperated with authorities, constitute an unwarranted invasion of
personal privacy of others, disclose the identity of confidential
sources, reveal confidential information supplied by these sources, and
disclose investigative techniques and procedures.
(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the
categories of sources of records in each system of records. The
application of this provision could disclose investigative techniques
and procedures and cause sources to refrain from giving such information
because of fear of reprisal, or fear of breach of promises of anonymity
and confidentiality. This could compromise the ability to conduct
investigations and to identify, detect and apprehend violators. Even
though the agency has claimed an exemption from this particular
requirement, it still plans to generally identify the categories of
records and the sources for these records in this system. However, for
the reasons stated in paragraph (b)(3)(ii) of this section, this
exemption is still being cited in the event an individual wants to know
a specific source of information.
(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual that is relevant and
necessary to accomplish a purpose of the agency required by statute or
Executive order. These systems of records are exempt from the foregoing
provisions because:
(A) It is not possible to detect the relevance or necessity of
specific information in the early stages of a criminal or other
investigation.
(B) Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary may ultimately be determined to be
unnecessary. It is only after the information is evaluated that the
relevance and necessity of such information can be established.
(C) In any investigation the Inspector General may obtain
information concerning the violations of laws other than those within
the scope of his/her jurisdiction. In the interest of effective law
enforcement, the Inspector General should retain this information as it
may aid in establishing patterns of criminal activity and provide leads
for those law enforcement agencies charged with enforcing other segments
of civil or criminal law.
(v) 5 U.S.C. 552a(e)(2) requires an agency to collect information to
the greatest extent practicable directly from the subject individual
when the information may result in adverse determinations about an
individual's rights, benefits, and privileges under Federal programs.
The application of
[[Page 86]]
this provision would impair investigations of illegal acts, violations
of the rules of conduct, merit system and any other misconduct for the
following reasons:
(A) In order to successfully verify a complaint, most information
about a complainant or an individual under investigation must be
obtained from third parties such as witnesses and informers. It is not
feasible to rely upon the subject of the investigation as a source for
information regarding his/her activities because of the subject's rights
against self-incrimination and because of the inherent unreliability of
the suspect's statements. Similarly, it is not always feasible to rely
upon the complainant as a source of information regarding his/her
involvement in an investigation.
(B) The subject of an investigation will be alerted to the existence
of an investigation if an attempt is made to obtain information from the
subject. This would afford the individual the opportunity to conceal any
criminal activities to avoid apprehension.
(vi) 5 U.S.C. 552a(e)(3) requires that an agency must inform the
subject of an investigation who is asked to supply information of:
(A) The authority under which the information is sought and whether
disclosure of the information is mandatory or voluntary;
(B) The purposes for which the information is intended to be used;
(C) The routine uses which may be made of the information; and
(D) The effects on the subject, if any, of not providing the
requested information. The reasons for exempting this system of records
from the foregoing provision are as follows:
(1) The disclosure to the subject of the purposes of the
investigation as stated in paragraph (b)(3)(vi)(B) of this paragraph
would provide the subject with substantial information relating to the
nature of the investigation and could impede or compromise the
investigation.
(2) If the complainant or the subject were informed of the
information required by this provision, it could seriously interfere
with undercover activities requiring disclosure of the authority under
which the information is being requested. This could conceivably
jeopardize undercover agents' identities and impair their safety, as
well as impair the successful conclusion of the investigation.
(3) Individuals may be contacted during preliminary information
gathering in investigations before any individual is identified as the
subject of an investigation. Informing the individual of the matters
required by this provision would hinder or adversely affect any present
or subsequent investigations.
(vii) 5 U.S.C. 552a(e)(5) requires that records be maintained with
such accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in making any
determination about an individual. Since the law defines maintain to
include the collection of information, complying with this provision
would prevent the collection of any data not shown to be accurate,
relevant, timely, and complete at the moment of its collection. In
gathering information during the course of an investigation it is not
always possible to determine this prior to collection of the
information. Facts are first gathered and then placed into a logical
order which objectively proves or disproves criminal behavior on the
part of the suspect. Material which may seem unrelated, irrelevant,
incomplete, untimely, etc., may take on added meaning as an
investigation progresses. The restrictions in this provision could
interfere with the preparation of a complete investigative report.
(viii) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable
efforts to serve notice on an individual when any record on such
individual is made available to any person under compulsory legal
process when such process becomes a matter of public record. The notice
requirement of this provision could prematurely reveal an ongoing
criminal investigation to the subject of the investigation.
(c) Exemption of Loan Guaranty Service, Veterans Benefits
Administration, Systems of Records. The Department of Veterans Affairs
provides limited access to Loan Guaranty Service, Veterans Benefits
Administration, systems of records as indicated:
[[Page 87]]
(1) The following systems of records are exempted pursuant to the
provisions of 5 U.S.C. 552a(k)(2) from subsections (c)(3), (d), (e)(1)
and (e)(4) (G), (H) and (I) and (f):
(i) Loan Guaranty Fee Personnel and Program Participant Records--VA
(17VA26); and
(ii) Loan Guaranty Home Condominium and Mobile Home Loan Applicant
Records and Paraplegic Grant Application Records--VA (55VA26).
(2) These exemptions apply to the extent that information in these
systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
(3) For the reasons set forth, the systems of records listed under
paragraph (c)(1) of this section are exempted under 5 U.S.C. 552a(k)(2)
from the following provisions of 5 U.S.C. 552a:
(i) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request. These accountings must state the date, nature and purpose
of each disclosure of the record and the name and address of the
recipient. The application of this provision would alert subjects of an
investigation to the existence of the investigation and that such
persons are subjects of that investigation. Since release of such
information to subjects of an investigation would provide the subjects
with significant information concerning the nature of the investigation,
it could result in the altering or destruction of documentary evidence,
improper influencing of witnesses and other activities that could impede
or compromise the investigation.
(ii) 5 U.S.C. 552a(d), (e)(4) (G) and (H) and (f) relate to an
individual's right to be notified of the existence of records pertaining
to such individual; requirements for identifying an individual who
requests access to records; and the agency procedures relating to access
to records and the contest of information contained in such records.
This system is exempt from the foregoing provisions for the following
reasons: To notify an individual at the individual's request of the
existence of records in an investigative file pertaining to such
individual or to grant access to an investigative file could interfere
with investigative and enforcement proceedings; constitute an
unwarranted invasion of the personal privacy of others; disclose the
identity of confidential sources and reveal confidential information
supplied by these sources and disclose investigative techniques and
procedures.
(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the
categories of sources of records in each system of records. The
application of this provision could disclose investigative techniques
and procedures and cause sources to refrain from giving such information
because of fear of reprisal, or fear of breach of promises of anonymity
and confidentiality. This would compromise the ability to conduct
investigations. Even though the agency has claimed an exemption from
this particular requirement, it still plans to generally identify the
categories of records and the sources for these records in this system.
However, for the reasons stated above, this exemption is still being
cited in the event an individual wanted to know a specific source of
information.
(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual that is relevant and
necessary to accomplish a purpose of the agency required by statute or
Executive order. This system of records is exempt from the foregoing
provision because:
(A) It is not possible to detect relevance or necessity of specific
information in the early stages of an investigation.
(B) Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary when collected may ultimately be
determined to be unnecessary. It is only after the information is
evaluated that the relevance and necessity of such information can be
established.
(C) In interviewing persons or obtaining other forms of evidence
during an investigation, information may be supplied to the investigator
which relates to matters incidental to the main purpose of the
investigation but which is appropriate in a thorough investigation.
Oftentimes, such information cannot readily be segregated.
[[Page 88]]
(4) The following system of records is exempt pursuant to the
provisions of 5 U.S.C. 552a(k)(5) from subsections (c)(3), (d), (e)(1),
(e)(4) (G), (H) and (I) and (f): Loan Guaranty Fee Personnel and Program
Participant Records--VA (17 VA 26).
(5) This exemption applies to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(5).
(6) For the reasons set forth, the system of records listed in
paragraph (c)(4) of this section is exempt under 5 U.S.C. 552a(k)(5)
from the following provisions of 5 U.S.C. 552a:
(i) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request. These accountings must state the date, nature and purpose
of each disclosure of the record and the name and address of the
recipient. The application of this provision would alert subjects of
background suitability investigations to the existence of the
investigation and reveal that such persons are subjects of that
investigation. Since release of such information to subjects of an
investigation would provide the subjects with significant information
concerning the nature of the investigation, it could result in revealing
the identity of a confidential source.
(ii) 5 U.S.C. 552a(d), (e)(4) (G) and (H) and (f) relate to an
individual's right to be notified of the existence of records pertaining
to such individual; requirements for identifying an individual who
requests access to records; and the agency procedures relating to access
to records and the contest of information contained in such records.
This system is exempt from the foregoing provisions for the following
reasons: To notify an individual at the individual's request of the
existence of records in an investigative file pertaining to such an
individual or to grant access to an investigative file would disclose
the identity of confidential sources and reveal confidential information
supplied by these sources.
(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the
categories of sources of records in each system of records. The
application of this provision could disclose sufficient information to
disclose the identity of a confidential source and cause sources to
refrain from giving such information because of fear of reprisal, or
fear of breach of promises of anonymity and confidentiality. This would
compromise the ability to conduct background suitability investigations.
(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual that is relevant and
necessary to accomplish a purpose of the agency required by statute or
Executive order. This system of records is exempt from the foregoing
provision because:
(A) It is not possible to detect relevance and necessity of specific
information from a confidential source in the early stages of an
investigation.
(B) Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary when collected may ultimately be
determined to be unnecessary. It is only after the information is
evaluated that the relevance and necessity of such information can be
established regarding suitability for VA approval as a fee appraiser or
compliance inspector.
(C) In interviewing persons or obtaining other forms of evidence
during an investigation for suitability for VA approval, information may
be supplied to the investigator which relates to matters incidental to
the main purpose of the investigation but which is appropriate in a
thorough investigation. Oftentimes, such information cannot readily be
segregated and disclosure might jeopardize the identity of a
confidential source.
(d) Exemption of Police and Security Records. VA provides limited
access to one Security and Law Enforcement System of Records, Police and
Security Records--VA (103VA07B).
(1) The investigations records and reports contained in this System
of Records are exempted [pursuant to 5 U.S.C. 552a(j)(2) of the Privacy
Act of 1974] from Privacy Act subsections (c)(3) and (c)(4); (d); (e)(1)
through (e)(3), (e)(4)(G) through (e)(4)(I), (e)(5), and (e)(8); (f);
and (g); in addition, they are exempted [pursuant to 5 U.S.C. 552a(k)(2)
of the Privacy Act of 1974] from Privacy Act subsections (c)(3);
[[Page 89]]
(d); (e)(1), (e)(4)(G) through (e)(4)(I); and (f).
(2) These records contained in the Police and Security Records--VA
(103VA076B) are exempted for the following reasons:
(i) The application of Privacy Act subsection (c)(3) would alert
subjects to the existence of the investigation and reveal that they are
subjects of that investigation. Providing subjects with information
concerning the nature of the investigation could result in alteration or
destruction of evidence which is obtained from third parties, improper
influencing of witnesses, and other activities that could impede or
compromise the investigation.
(ii) The application of Privacy Act subsections (c)(4); (d);
(e)(4)(G) and (e)(4)(H); (f); and (g) could interfere with investigative
and enforcement proceedings, threaten the safety of individuals who have
cooperated with authorities, constitute an unwarranted invasion of
personal privacy of others, disclose the identity of confidential
sources, reveal confidential information supplied by these sources, and
disclose investigative techniques and procedures.
(iii) The application of Privacy Act subsection (e)(4)(I) could
disclose investigative techniques and procedures and cause sources to
refrain from giving such information because of fear of reprisal, or
fear of breach of promises of anonymity and confidentiality. This could
compromise the ability to conduct investigations and to identify, detect
and apprehend violators. Even though the agency has claimed an exemption
from this particular requirement, it still plans to generally identify
the categories of records and the sources of these records in this
system. However, for the reason stated in paragraph (d)(2)(ii) of this
section, this exemption is still being cited in the event an individual
wants to know a specific source of information.
(iv) These records contained in the Police and Security Records--VA
(103VA076B) are exempt from Privacy Act subsection (e)(1) because it is
not possible to detect the relevance or necessity of specific
information in the early stages of a criminal or other investigation.
Relevance and necessity are questions of judgment and timing. What
appears relevant and necessary may ultimately be determined to be
unnecessary. It is only after the information is evaluated that the
relevance and necessity of such information can be established. In any
investigation, the Office of Security and Law Enforcement may obtain
information concerning violations of laws other than those within the
scope of its jurisdiction. In the interest of effective law enforcement,
the Office of Security and Law Enforcement should retain this
information as it may aid in establishing patterns of criminal activity
and provide leads for those law enforcement agencies charged with
enforcing other segments of civil or criminal law.
(v) The application of Privacy Act subsection (e)(2) would impair
investigations of illegal acts, violations of the rules of conduct,
merit system and any other misconduct for the following reasons:
(A) In order to successfully verify a complaint, most information
about a complainant or an individual under investigation must be
obtained from third parties such as witnesses and informers. It is not
feasible to rely upon the subject of the investigation as a source for
information regarding his/her activities because of the subject's rights
against self-incrimination and because of the inherent unreliability of
the suspect's statements. Similarly, it is not always feasible to rely
upon the complainant as a source of information regarding his/her
involvement in an investigation.
(B) The subject of an investigation will be alerted to the existence
of an investigation if an attempt is made to obtain information from the
subject. This would afford the individual the opportunity to conceal any
criminal activities to avoid apprehension.
(vi) The reasons for exempting these records in the Police and
Security Records--VA (103VA07B) from Privacy Act subsection (e)(3) are
as follows:
(A) The disclosure to the subject of the purposes of the
investigation would provide the subject with substantial information
relating to the nature of the investigation and could impede or
compromise the investigation.
[[Page 90]]
(B) Informing the complainant or the subject of the information
required by this provision could seriously interfere with undercover
activities, jeopardize the identities of undercover agents and impair
their safety, and impair the successful conclusion of the investigation.
(C) Individuals may be contacted during preliminary information
gathering in investigations before any individual is identified as the
subject of an investigation. Informing the individual of the matters
required by this provision would hinder or adversely affect any present
or subsequent investigations.
(vii) Since the Privacy Act defines ``maintain'' to include the
collection of information, complying with subsection (e)(5) would
prevent the collection of any data not shown to be accurate, relevant,
timely, and complete at the moment of its collection. In gathering
information during the course of an investigation, it is not always
possible to make this determination prior to collecting the information.
Facts are first gathered and then placed into a logical order which
objectively proves or disproves criminal behavior on the part of the
suspect. Material that may seem unrelated, irrelevant, incomplete,
untimely, etc., may take on added meaning as an investigation
progresses. The restrictions in this provision could interfere with the
preparation of a complete investigative report.
(viii) The notice requirement of Privacy Act subsection (e)(8) could
prematurely reveal an ongoing criminal investigation to the subject of
the investigation.
(Authority: 5 U.S.C. 552a (j) and (k); 38 U.S.C. 501)
[48 FR 29847, June 29, 1983, as amended at 68 FR 35298, June 13, 2003]
Secs. 1.583-1.584 [Reserved]
Inventions by Employees of Department of Veterans Affairs
Authority: Sections 1.650 to 1.666 issued under sect. 1, 66 Stat.
811, 72 Stat. 1114; 35 U.S.C. 266; 15 U.S.C. 3710a; 38 U.S.C. 501; E.O.
10096, E.O. 10930, 15 FR 389; 3 CFR 1949-1953 Comp.
Expanded Remote Access to Computerized Veterans Claims Records by
Accredited Representatives
Sec. 1.600 Purpose.
(a) Sections 1.600 through 1.603 establish policy, assign
responsibilities and prescribe procedures with respect to:
(1) When, and under what circumstances, VA will grant authorized
claimants' representatives read-only access to the automated Veterans
Benefits Administration (VBA) claims records of those claimants whom
they represent;
(2) The exercise of authorized access by claimants' representatives;
and
(3) The bases and procedures for disqualification of a
representative for violating any of the requirements for access.
(b) VBA will grant access to its automated claimants' claims records
from locations outside Regional Offices under the following conditions.
Access will be provided:
(1) Only to individuals and organizations granted access to
automated claimants' records under Secs. 1.600 through 1.603;
(2) Only to the claims records of VA claimants whom the organization
or individual represents as reflected in the claims file;
(3) Solely for the purpose of the representative assisting the
individual claimant whose records are accessed in a claim for benefits
administered by VA; and
(4) On a read-only basis. Individuals authorized access to VBA
automated claims records under Secs. 1.600 through 1.603 will not be
permitted to modify the data.
(c)(1) Access will be authorized only to the inquiry commands of the
Benefits Delivery Network which provide access to the following
categories of data:
(i) Beneficiary identification data such as name, social security
number, sex, date of birth, service number and related service data; and
(ii) Claims history and processing data such as folder location,
claim status, claim establishment date, claim processing history, award
data, rating
[[Page 91]]
data, including service-connected medical conditions, income data,
dependency data, deduction data, payment data, educational facility and
program data (except chapter 32 benefits), and education program
contribution and delimiting data (except chapter 32 benefits).
(2) Access to this information will currently be through the inquiry
commands of BINQ (BIRLS (Beneficiaries Identification and Records
Location Subsystem) Inquiry), SINQ (Status Inquiry), MINQ (Master Record
Inquiry), PINQ (Pending Issue Inquiry) and TINQ (Payment History
Inquiry). The identifying information received from BIRLS to
representative inquiries will be limited to file number, veteran's name,
date of death, folder location and transfer date of folder, insurance
number, insurance type, insurance lapse date and insurance folder
jurisdiction.
(d) Sections 1.600 through 14.603 are not intended to, and do not:
(1) Waive the sovereign immunity of the United States; or
(2) Create, and may not be relied upon to create, any right or
benefit, substantive or procedural, enforceable at law against the
United States or the Department of Veterans Affairs.
[59 FR 47084, Sept. 14, 1994. Redesignated and amended at 73 FR 29870,
29879, May 22, 2008]
Sec. 1.601 Qualifications for access.
(a) An applicant for read-only access to VBA automated claims
records from a location other than a VA Regional Office must be:
(1) An organization, representative, attorney or agent approved or
accredited by VA under Secs. 14.626 through 14.635; or
(2) An attorney of record for a claimant in proceedings before the
Court of Veterans Appeals or subsequent proceedings who requests access
to the claimant's automated claims records as part of the representation
of the claimant.
(b) The hardware, modem and software utilized to obtain access, as
well as their location, must be approved in advance by VBA.
(c) Each individual and organization approved for access must sign
and return a notice provided by the Regional Office Director (or the
Regional Office Director's designee) of the Regional Office of
jurisdiction for the claim. The notice will specify the applicable
operational and security requirements for access and an acknowledgment
that the breach of any of these requirements is grounds for
disqualification from access.
[59 FR 47084, Sept. 14, 1994. Redesignated at 73 FR 29870, May 22, 2008]
Sec. 1.602 Utilization of access.
(a) Once an individual or organization has been issued the necessary
passwords to obtain read-only access to the automated claims records of
individuals represented, access will be exercised in accordance with the
following requirements:
(1) The individual or organization will obtain access only from
equipment and software approved in advance by the Regional Office from
the location where the individual or organization primarily conducts its
representation activities which also has been approved in advance;
(2) The individual will use only his or her assigned password to
obtain access;
(3) The individual will not reveal his or her password to anyone
else, or allow anyone else to use his or her password;
(4) The individual will access only the VBA automated claims records
of VA claimants who are represented by the person obtaining access or by
the organization employing the person obtaining access;
(5) The individual will access a claimant's automated claims record
solely for the purpose of representing that claimant in a claim for
benefits administered by VA;
(6) Upon receipt of the password, the individual will destroy the
hard copy; no written or printed record containing the password will be
retained; and
(7) The individual and organization will comply with all security
requirements VBA deems necessary to ensure the integrity and
confidentiality of the data and VBA's automated computer systems.
(b) An organization granted access shall ensure that all employees
provided access in accordance with these
[[Page 92]]
regulations will receive regular, adequate training on proper security,
including the items listed in Sec. 1.603(a). Where an individual such as
an attorney or registered agent is granted access, he or she will
regularly review the security requirements for the system as set forth
in these regulations and in any additional materials provided by VBA.
(c) VBA may, at any time without notice:
(1) Inspect the computer hardware and software utilized to obtain
access and their location;
(2) Review the security practices and training of any individual or
organization granted access under these regulations; and
(3) Monitor an individual's or organization's access activities. By
applying for, and exercising, the access privileges under Secs. 1.600
through 1.603, the applicant expressly consents to VBA monitoring the
access activities of the applicant at any time.
[59 FR 47084, Sept. 14, 1994. Redesignated and amended at 73 FR 29870,
29879, May 22, 2008]
Sec. 1.603 Disqualification.
(a) The Regional Office Director or the Regional Office Director's
designee may revoke an individual's or an organization's access
privileges to a particular claimant's records because the individual or
organization no longer represents the claimant, and, therefore, the
beneficiary's consent is no longer in effect. The individual or
organization is no longer entitled to access as a matter of law under
the Privacy Act, 5 U.S.C. 552a, and 38 U.S.C. 5701 and 7332. Under these
circumstances, the individual or organization is not entitled to any
hearing or to present any evidence in opposition to the revocation.
(b) The Regional Office Director or the Regional Office Director's
designee may revoke an individual's or an organization's access
privileges either to an individual claimant's records or to all
claimants' records in the VBA automated claims benefits systems if the
individual or organization:
(1) Violates any of the provisions of Secs. 1.600 through 1.603;
(2) Accesses or attempts to access data for a purpose other than
representation of an individual veteran;
(3) Accesses or attempts to access data other than the data
specified in these regulations;
(4) Accesses or attempts to access data on a VA beneficiary who is
not represented either by the individual who obtains access or by the
organization employing the individual who obtains access;
(5) Utilizes unapproved computer hardware or software to obtain or
attempt to obtain access to VBA computer systems;
(6) Modifies or attempts to modify data in the VBA computer systems.
(c) If VBA is considering revoking an individual's access under
Sec. 1.603(b), and that individual works for an organization, the
Regional Office of jurisdiction will notify the organization of the
pendency of the action.
(d) After an individual's access privileges are revoked, if the
conduct which resulted in revocation was such that it merits reporting
to an appropriate governmental licensing organization such as a State
bar, the VBA Regional Office of jurisdiction will immediately inform the
licensing organization in writing of the fact that the individual's
access privileges were revoked and the reasons why.
(e) The VBA Regional Office of jurisdiction may temporarily suspend
access privileges prior to any determination on the merits of the
proposed revocation where the Regional Office Director or the Director's
designee determines that such immediate suspension is necessary in order
to protect the integrity of the system or confidentiality of the data in
the system from a reasonably foreseeable compromise. However, in such
case, the Regional Office shall offer the individual or organization an
opportunity to respond to the charges immediately after the temporary
suspension.
[59 FR 47084, Sept. 14, 1994. Redesignated and amended at 73 FR 29870,
29879, May 22, 2008]
Inventions by Employees of Department of Veterans Affairs
Authority: Sections 1.650 to 1.666 issued under sect. 1, 66 Stat.
811, 72 Stat. 1114; 35
[[Page 93]]
U.S.C. 266; 15 U.S.C. 3710a; 38 U.S.C. 501; E.O. 10096, E.O. 10930, 15
FR 389; 3 CFR 1949-1953 Comp.
Sec. 1.650 Purpose.
The purpose of these regulations is to prescribe the procedure to be
followed in determining and protecting the respective rights of the
United States Government and of Department of Veterans Affairs employees
who make inventions.
[21 FR 10377, Dec. 28, 1956, as amended at 61 FR 29658, June 12, 1996]
Sec. 1.651 Definitions.
The terms as used in the regulations concerning inventions by
employees of the Department of Veterans Affairs are defined as follows:
(a) The term invention includes any art, machine, manufacture,
design, or composition of matter, or any new and useful improvement
thereof, or any variety of plant, which is or may be patentable under
the patent laws of the United States.
(b) The term employee or Government employee means any officer or
employee, civilian or military, of the Department of Veterans Affairs.
Part-time, without compensation (WOC) employees and part-time
consultants are included.
(c) The term Secretary of Commerce means the Under Secretary of
Commerce for Technology.
[21 FR 10377, Dec. 28, 1956, as amended at 31 FR 5291, Apr. 2, 1966; 61
FR 29658, June 12, 1996]
Sec. 1.652 Criteria for determining rights to employee inventions.
(a) The criteria to be applied in determining the respective rights
of the Government and of the employee-inventor in and to any invention
subject to these provisions shall be in accordance with the Uniform
Patent Policy regulations found at 37 CFR 501.6 and 501.7.
(b) Ownership in and to inventions arising under Cooperative
Research and Development Agreements (CRADAs) pursuant to 15 USC 3710a
shall be governed by the provisions of the pertinent CRADA, as
authorized by the Federal Technology Transfer Act.
(Authority: 15 U.S.C. 3710a; 37 CFR part 501)
[61 FR 29658, June 12, 1996]
Sec. 1.653 Delegation of authority.
The General Counsel, Deputy General Counsel or Assistant General
Counsel for Professional Staff Group IV is authorized to act for the
Secretary of Veterans Affairs in matters concerning patents and
inventions, unless otherwise required by law. The determination of
rights to an invention as between the Government and the employee where
there is no cooperative research and development agreement shall be made
by the General Counsel, Deputy General Counsel or the Assistant General
Counsel for Professional Staff Group IV, in accordance with 37 CFR part
500.
[62 FR 14822, Mar. 28, 1997]
Sec. 1.654 Patenting of inventions.
Any invention owned by the Government under the criteria as set
forth in 37 CFR 501.6 should be protected by an application for a
domestic patent and other necessary documents executed by the employee
inventor prepared by or through the General Counsel, Deputy General
Counsel or Assistant General Counsel for Professional Staff Group IV,
unless some other agency has primary interest or it is decided to
dedicate the invention to the public. Such dedication requires approval
of the Secretary of Commerce. Applications on behalf of the Government
for foreign patents may be made if determined to be in the public
interest. The payment of necessary expenses in connection with any
application filed or patent obtained under this section by the
Department of Veterans Affairs is authorized.
[31 FR 5291, Apr. 2, 1966, as amended at 54 FR 26027, June 21, 1989; 61
FR 29658, June 12, 1996; 62 FR 14822, Mar. 28, 1997]
Sec. 1.655 Government license in invention of employee.
If an invention is made by an employee and it is determined that the
employee inventor is entitled to full ownership under 37 CFR 501.6,
subject to a nonexclusive, irrevocable, royalty-
[[Page 94]]
free license in the Government with power to grant sublicenses for all
Governmental purposes, it shall be the duty of the employee inventor to
notify the Office of General Counsel of the status of the patent
application, including the patent application number, so that the
Department may protect the interests reserved to the Government under 37
CFR 501.6.
[61 FR 29658, June 12, 1996]
Sec. 1.656 Information to be submitted by inventor.
(a) In the case of an invention or believed invention, the inventor
will prepare a statement for submission to his or her immediate
superior. It will be submitted regardless of where the ownership is
believed to exist. The statement will consist of two parts:
(1) One part of the statement will be a disclosure of the invention
sufficient to permit the preparation of a patent applicant. It shall
consist of a description, including where applicable, of the parts or
components of the invention as shown on the drawings or blueprints,
accompanied further by a description of the construction and operation
of the invention. Photographs of the invention may be included. The
inventor should state pertinent prior art known to him or her, and set
forth in detail as clearly as possible the respects which his or her
invention differs.
(2) The other part of the statement will set forth the circumstances
attending the making of the invention. It will include the full name and
address of the inventor; the grade and title of his or her position;
whether full time or part time; his or her duties at the time the
invention was made; the facts pertinent to a determination whether the
invention bore a direct relation to or was made in consequence of such
official duties; whether there was, and if so, the terms of any special
agreement or understanding with respect to use or manufacture of his or
her invention; date of the invention; when and where it was conceived,
constructed and tested; whether it was made entirely during working
hours; whether, and to what extent there was a contribution by the
Government of any of the following: Facilities; equipment; materials or
supplies; funds; information; time or services of other Government
employees on duty. When the invention is disclosed through publication,
or in consultation with a manufacturer or attorney, simultaneous
notification of the publication shall be given to the Office of General
Counsel. A copy of the article will accompany the notification.
(b) The inventor's immediate superior shall promptly review the
statement of the employee inventor for completeness and accuracy, and
shall certify that the employee's statement of circumstances attending
the invention is or is not correct, giving reasons if pertinent. The
file should then be submitted through the facility head (or
administration heads or top staff officials in the case of Central
Office employees) to the General Counsel together with any comments or
recommendations.
[61 FR 29658, June 12, 1996]
Sec. 1.657 Determination of rights.
The General Counsel, Deputy General Counsel or Assistant General
Counsel for Professional Staff Group IV will make a determination of
rights subject to review where required by the Secretary of Commerce.
The determination will be in accordance with 37 CFR 501.7.
[61 FR 29658, June 12, 1996, as amended at 62 FR 14822, Mar. 28, 1997]
Sec. 1.658 Right of appeal.
In accordance with 37 CFR 501.8, the employee has a right of appeal
to the Secretary of Commerce within 30 days of receipt of the
Department's determination of ownership rights. The decision reached by
the Secretary of Commerce will be communicated to the employee.
[61 FR 29658, June 12, 1996]
Sec. 1.659 Relationship to incentive awards program.
Procedures set out in the regulations concerning inventions by
employees of the Department of Veterans Affairs are not affected by the
submission or proposed submission of an employee suggestion or idea on
an item which may be patentable. Consideration of an item for a
determination of ownership rights
[[Page 95]]
and also for an incentive award will proceed simultaneously, usually on
separate correspondence. An employee suggestion or copies and extracts
of the file may be forwarded to the General Counsel by the reviewing or
awarding authority, or by the facility head, for an ownership
determination where the employee idea or suggestion involves an
invention. The employee shall be directed to submit a disclosure of
invention in accordance with these regulations if such has not been
previously submitted.
[31 FR 5291, Apr. 2, 1966, as amended at 61 FR 29659, June 12, 1996]
Sec. 1.660 Expeditious handling.
No patent may be granted where the invention has been in public use
or publicly disclosed for more than one year before filing of a patent
application. Hence, submissions involving inventions should be made as
promptly as possible in order to avoid delay which might jeopardize
title to the invention or impair the rights of the inventor or the
Government.
[61 FR 29659, June 12, 1996]
Sec. 1.661 Information to be kept confidential.
All information pertaining to inventions and pending patent
applications is confidential, and employees having access to such
information are forbidden to disclose or reveal the same except as
required in the performance of their official duties.
[21 FR 10378, Dec. 28, 1956. Redesignated at 61 FR 29659, June 12, 1996]
Sec. 1.662 Provisions of regulations made a condition of employment.
The provisions of the regulations concerning inventions by employees
of the Department of Veterans Affairs shall be a condition of employment
of all employees.
[21 FR 10378, Dec. 28, 1956. Redesignated at 61 FR 29659, June 12, 1996]
Sec. 1.663 Licensing of Government-owned inventions.
(a) The licensing of Government-owned inventions under VA control
and custody will be conducted pursuant to the regulations on the
licensing of Government-owned inventions contained in 37 CFR part 404,
and 15 U.S.C. 3710a, as appropriate.
(b) Any person whose application for a license in an invention under
VA control and custody has been denied; whose license in such an
invention has been modified or terminated, in whole or in part; or who
timely filed a written objection in response to a proposal to grant an
exclusive or partially exclusive license in an invention under VA
control or custody, may, if damaged, appeal any decision or
determination concerning the grant, denial, interpretation,
modification, or termination of a license to the Secretary of Veterans
Affairs. Such appeal shall be in writing; shall set forth with
specificity the basis of the appeal; and shall be postmarked not later
than 60 days after the action being appealed. Upon request of the
appellant, such appeal may be considered by one to three persons
appointed on a case-by-case basis by the Secretary of Veterans Affairs.
Such a request will be granted only if it accompanies the written
appeal. Appellant may appear and be represented by counsel before such a
panel, which will sit in Washington, DC. If the appeal challenges a
decision to grant an exclusive or partially exclusive license in an
invention under VA control or custody, the licensee shall be furnished a
copy of the appeal, shall be given the opportunity to respond in
writing, may appear and be represented by counsel at any hearing
requested by appellant, and may request a hearing if appellant has not,
under the same terms and conditions, at which the appellant may also
appear and be represented by counsel.
[61 FR 29659, June 12, 1996]
Secs. 1.664-1.666 [Reserved]
Administrative Control of Funds
Source: 48 FR 30622, July 5, 1983, unless otherwise noted.
Sec. 1.670 Purpose.
The following regulations establish a system of administrative
controls for all appropriations and funds available to the Department of
Veterans Affairs to accomplish the following purposes:
[[Page 96]]
(a) Establish an administrative subdivision of controls to restrict
obligations and expenditures against each appropriation or fund to the
amount of the apportionment or the reapportionment; and
(b) Fix responsibility for the control of appropriations or funds to
high level officials who bear the responsibility for apportionment or
reapportionment control.
(Authority: 31 U.S.C. 1514)
Sec. 1.671 Definitions.
For the purpose of Secs. 1.670 through 1.673, the following
definitions apply:
(a) Administrative subdivision of funds. An administrative
subdivision of funds is any administrative subdivision of an
appropriation or fund which makes funds available in a specified amount
for the purpose of controlling apportionments or reapportionments.
(b) Allotment. An allotment is an authorization by the Director,
Office of Budget and Finance, to department and staff office heads
(allottees) to incur obligations within specified amounts, during a
specified period, pursuant to an Office of Management and Budget
apportionment or reapportionment action. The creation of an obligation
in excess of an allotment is a violation of the administrative
subdivision of funds.
(c) Allowance. An allowance is a subdivision below the allotment
level, and is a guideline which may be issued by department or staff
office heads (allottees) to facility directors and other officials,
showing the expenditure pattern or operating budget they will be
expected to follow in light of the program activities contemplated by
the overall VA budget or plan of expenditure. The creation of an
obligation in excess of an allowance is not a violation of the
administrative subdivision of funds.
(Authority: 31 U.S.C. 1514)
Sec. 1.672 Responsibilities.
(a) The issuance of an allotment to the administration and staff
office heads (allottees) is required and is the responsibility of the
Director, Office of Budget and Finance. The sum of such allotments shall
not be in excess of the amount indicated in the apportionment or
reapportionment document.
(b) The issuance of an allowance is discretionary with department or
staff office heads (allottees), as an allowance is merely a management
device which allottees may utilize in carrying out their
responsibilities. Allottees are responsible for keeping obligations
within the amounts of their allotments, whether allowances are issued or
not.
(c) The Director, Office of Budget and Finance, is responsible for
requesting apportionments and reapportionments from the Office of
Management and Budget. Administration and staff heads shall promptly
request that an appropriation or fund be reapportioned if feasible
whenever it appears that obligations may exceed the level of the
apportionment.
(Authority: 31 U.S.C. 1514)
Sec. 1.673 Responsibility for violations of the administrative
subdivision of funds.
(a) In the event an allotment or an apportionment is exceeded except
in the circumstances described in paragraph (b) of this section, the
following factors will be considered in determining which official, or
officials, are responsible for the violation.
(1) Knowledge of circumstances which could lead to an allotment or
apportionment being exceeded;
(2) Whether the official had received explicit instructions to
continue or cease incurring obligations;
(3) Whether any action was taken in contravention of or with
disregard for, instructions to monitor obligations incurred;
(4) Whether the official had the authority to curtail obligations by
directing a change in the manner of operations of the department or
staff office; or
(5) Any other facts which tend to fix the responsibility for the
obligations which resulted in the allotment or apportionment being
exceeded.
(b) In the event that the sum of the allotments made in a particular
fiscal year exceeds the amount apportioned by the Office of Management
and Budget, and the apportionment is subsequently exceeded because of
this action, the official who made the excess
[[Page 97]]
allotments will be the official responsible for the violation.
(Authority: 31 U.S.C. 1514)
Use of Official Mail in the Location and Recovery of Missing Children
Source: 52 FR 10889, Apr. 6, 1987, unless otherwise noted.
Sec. 1.700 Purpose.
Sections 1.700 through 1.705 of this title provide a Missing
Children Official Mail Program in the Department of Veterans Affairs.
(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)
[60 FR 48387, Sept. 19, 1995]
Sec. 1.701 Contact person for missing children official mail program.
The Department of Veterans Affairs contact person for the Missing
Children Official Mail Program is: Mrs. Roslynd R. Stewart, Information
Management Service (045A4), Office of Policy and Program Assistance,
Office of Information Resources Management, Office of Management,
Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC
20420-0001. Telephone: (202) 565-8949.
(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)
[60 FR 48388, Sept. 19, 1995]
Sec. 1.702 Policy.
(a) The Department of Veterans Affairs will supplement and expand
the national effort to assist in the location and recovery of missing
children by maximizing the economical use of missing children
information in domestic official mail and publications directed to
members of the public and Department of Veterans Affairs employees.
(b) The Department of Veterans Affairs will insert pictures and
biographical information related to missing children in a variety of
official mail originating at the Department of Veterans Affairs
automation centers. In addition, pictures and biographical information
are printed in self-mailers and other Department of Veterans Affairs
publications (newsletters, bulletins, etc.).
(c) The National Center for Missing and Exploited Children (National
Center) is the sole source from which the Department of Veterans Affairs
will acquire the camera-ready and other photographic and biographical
materials to be disseminated for use by Department of Veterans Affairs
organizational units. The information is ordered and disseminated by
Information Management Service.
(d) The Department of Veterans Affairs will remove all printed
inserts and other materials from circulation or other use within a
three-month period from the date the National Center notifies the
Department of Veterans Affairs that a child whose picture and
biographical information have been made available to the Department of
Veterans Affairs has been recovered or that permission of the parent(s)
or guardian to use the child's photograph and biographical information
has been withdrawn. The National Center is responsible for immediately
notifying the Department of Veterans Affairs contact person, in writing,
of the need to withdraw from circulation official mail and other
materials related to a particular child. Photographs which were
reasonably current as of the time of the child's disappearence shall be
the only acceptable form of visual medium or pictorial likeness used in
official mail.
(e) The Department of Veterans Affairs will give priority to
official mail that is addressed to:
(1) Members of the public that will be received in the United
States, its territories and possessions; and
(2) Inter- and intra-agency publications and other media that will
also be widely disseminated to Department of Veterans Affairs employees.
(f) The Department of Veterans Affairs will avoid repetitive
mailings of material to the same individuals.
(g) All Department of Veterans Affairs employee suggestions and/or
recommendations for additional cost-effective opportunities to use
photographs and biographical data on missing children will be provided
to the Department of Veterans Affairs contact person.
(h) These shall be the sole regulations for the Department of
Veterans
[[Page 98]]
Affairs and its component organizational units.
(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301).
[52 FR 10889, Apr. 6, 1987, as amended at 60 FR 48388, Sept. 19, 1995]
Sec. 1.703 Percentage estimate.
It is the Department of Veterans Affairs objective that 20 percent
of its first class official mail addressed to the public contain missing
children photographs and information.
(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)
[60 FR 48388, Sept. 19, 1995]
Sec. 1.704 [Reserved]
Sec. 1.705 Restrictions on use of missing children information.
Missing children pictures and biographical data shall not be:
(a) Printed on official envelopes and other materials ordered and
stocked in quantities that represent more than a 90-day supply.
(b) Printed on blank pages or covers of publications that may be
included in the Superintendent of Documents Sales Program or be
distributed to depository libraries.
(c) Inserted in any envelope or publication the contents of which
may be construed to be inappropriate for association with the missing
children program.
(d) Inserted in any envelope where the insertion would increase the
postage cost for the item being mailed.
(e) Placed on letter-size envelopes on the official indicia, the
area designated for optical character readers (OCRs), bar code read
area, and return address area in accordance with the Office of Juvenile
Justice and Delinquency Prevention guidelines and U.S. Postal Service
standards.
(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)
[52 FR 10889, Apr. 6, 1987, as amended at 60 FR 48388, Sept. 19, 1995]
Homeless Claimants
Sec. 1.710 Homeless claimants: Delivery of benefit payments
and correspondence.
(a) All correspondence and all checks for benefits payable to
claimants under laws administered by the Department of Veterans Affairs
shall be directed to the address specified by the claimant. The
Department of Veterans Affairs will honor for this purpose any address
of the claimant in care of another person or organization or in care of
general delivery at a United States post office. In no event will a
claim or payment of benefits be denied because the claimant provides no
mailing address.
(Authority: 38 U.S.C. 5103; 5120)
(b) To ensure prompt delivery of benefit payments and
correspondence, claimants who seek personal assistance from Veterans
Benefits Counselors when filing their claims shall be counseled as to
the importance of providing his or her current mailing address and, if
no address is provided, the procedures for delivery described in
paragraph (d) of this section.
(Authority: 38 U.S.C. 5103; 5120)
(c) The Department of Veterans Affairs shall prepare and distribute
to organizations specially serving the needs of veterans and the
homeless, including but not limited to shelters, kitchens and private
outreach facilities, information encouraging such organizations to
counsel individuals on the importance of providing mailing addresses to
the Department of Veterans Affairs and advising them of this regulation.
(Authority: 38 U.S.C. 5103; 5120)
(d) If a claimant fails or refuses to provide a current mailing
address to the Department of Veterans Affairs, all correspondence and
any checks for benefits to which the claimant is entitled will be
delivered to the Agent Cashier of the regional office which adjudicated
or is adjudicating the claim in the case of compensation, pension or
survivors' benefits, to the Agent Cashier of the Department of Veterans
Affairs facility closest to the educational institution or training
establishment attended by a claimant in the case of education benefits,
or to the Agent Cashier of any other Department of Veterans Affairs
facility deemed by the Agency to be appropriate under the circumstances
of the particular case. The claimant,
[[Page 99]]
within 30 days after issuance, may obtain delivery of any check or
correspondence held by an Agent Cashier upon presentation of proper
identification. Checks unclaimed after 30 days will be returned to the
Department of the Treasury and the correspondence to the regional office
or facility of jurisdiction. Thereafter, the claimant must request the
reissuance of any such check or item of correspondence by written notice
to the Department of Veterans Affairs.
(Authority: 38 U.S.C. 5103; 5120)
[53 FR 22654, June 17, 1988]
Secs. 1.780-1.783 [Reserved]
Part-Time Career Employment Program
Source: 44 FR 55172, Sept. 25, 1979, unless otherwise noted.
Sec. 1.891 Purpose of program.
Many individuals in society possess great productive potential which
goes unrealized because they cannot meet the requirements of a standard
workweek. Permanent part-time employment also provides benefits to other
individuals in a variety of ways, such as providing older individuals
with a gradual transition into retirement, providing employment
opportunities to handicapped individuals or others who requires a
reduced workweek, providing parents opportunities to balance family
responsibilities with the need for additional income, and assisting
students who must finance their own education or vocational training. In
view of this, the Department of Veterans Affairs will operate a part-
time career employment program, consistent with the needs of its
beneficiaries and its responsibilities.
(Authority: 5 U.S.C. 3401 note)
Sec. 1.892 Review of positions.
Positions becoming vacant, unless excepted as provided by
Sec. 1.897, will be reviewed to determine the feasibility of converting
them to part-time. Among the criteria which may be used when conducting
this review are:
(a) Mission requirements.
(b) Workload.
(c) Employment ceilings and budgetary considerations.
(d) Availability of qualified applicants willing to work part time.
(e) Other criteria based on local needs and circumstances.
(Authority: 5 U.S.C. 3402)
Sec. 1.893 Establishing and converting part-time positions.
Position management and other internal reviews may indicate that
positions may be either converted from full-time or initially
established as part-time positions. Criteria listed in Sec. 1.892 may be
used during these reviews. If a decision is made to convert to or to
establish a part-time position, regular position management and
classification procedures will be followed.
(Authority: 5 U.S.C. 3402)
Sec. 1.894 Annual goals and timetables.
An departmentwide plan for promoting part-time employment
opportunities will be developed annually. This plan will establish
annual goals and set interim and final deadlines for achieving these
goals. This plan will be applicable throughout the agency, but may be
supplemented by field facilities.
(Authority: 5 U.S.C. 3402)
Sec. 1.895 Review and evaluation.
The part-time career employment program will be reviewed through
regular employment reports to determine levels of part-time employment.
This program will also be designated an item of special interest to be
reviewed during personnel management reviews.
(Authority: 5 U.S.C. 3402)
[61 FR 38571, July 25, 1996]
Sec. 1.896 Publicizing vacancies.
When applicants from outside the Federal service are desired, part-
time vacancies may be publicized through various recruiting means, such
as:
(a) Federal Job Information Centers.
(b) State Employment offices.
(c) VA Recruiting Bulletins.
(Authority: 5 U.S.C. 3402)
[[Page 100]]
Sec. 1.897 Exceptions.
The Secretary of Veterans Affairs, or designees, may except
positions from inclusion in this program as necessary to carry out the
mission of the Department.
(Authority: 5 U.S.C. 3402)
Standards for Collection, Compromise, Suspension or Termination of
Collection Effort, and Referral of Civil Claims for Money or Property
Authority: Sections 1.900 through 1.953 are issued under the
authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, 5302, 5302A,
5314, and as noted in specific sections.
Source: 32 FR 2613, Feb. 8, 1967, unless otherwise noted.
Sec. 1.900 Prescription of standards.
(a) The standards contained in Secs. 1.900 through 1.953 are issued
pursuant to the Federal Claims Collection Standards, issued by the
Department of the Treasury (Treasury) and the Department of Justice
(DOJ) in parts 900 through 904 of 31 CFR, as well as other debt
collection authority issued by Treasury in part 285 of 31 CFR, and apply
to the collection, compromise, termination, and suspension of debts owed
to VA, and the referral of such debts to Treasury (or other Federal
agencies designated by Treasury) for offset and collection action and to
DOJ for litigation, unless otherwise stated in this part or in other
statutory or regulatory authority, or by contract.
(b) Standards and policies regarding the classification of debt for
accounting purposes (for example, write-off of uncollectible debt) are
contained in the Office of Management and Budget's Circular A-129
(Revised), ``Policies for Federal Credit Programs and Non-Tax
Receivables.''
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62191, Oct. 25, 2004]
Sec. 1.901 No private rights created.
Sections 1.900 through 1.953 do not create any right or benefit,
substantive or procedural, enforceable at law or in equity by a party
against the United States, its agencies, its officers, or any other
person, nor shall the failure of VA to comply with any of the provisions
of Secs. 1.900 through 1.953 be available to any debtor as a defense.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62191, Oct. 25, 2004]
Sec. 1.902 Antitrust, fraud, and tax and interagency claims.
(a) The standards in Secs. 1.900 through 1.953 relating to
compromise, suspension, and termination of collection activity do not
apply to any debt based in whole or in part on conduct in violation of
the antitrust laws or to any debt involving fraud, the presentation of a
false claim, or misrepresentation on the part of the debtor or any party
having an interest in the claim. Only the Department of Justice (DOJ)
has the authority to compromise, suspend, or terminate collection
activity on such claims. The standards in Secs. 1.900 through 1.953
relating to the administrative collection of claims do apply, but only
to the extent authorized by DOJ in a particular case. Upon
identification of a claim based in whole or in part on conduct in
violation of the antitrust laws or any claim involving fraud, the
presentation of a false claim, or misrepresentation on the part of the
debtor or any party having an interest in the claim, VA shall promptly
refer the case to DOJ. At its discretion, DOJ may return the claim to VA
for further handling in accordance with the standards in Secs. 1.900
through 1.953.
(b) Sections 1.900 through 1.953 do not apply to tax debts.
(c) Sections 1.900 through 1.953 do not apply to claims between
Federal agencies.
(d) Federal agencies should attempt to resolve interagency claims by
negotiation in accordance with Executive Order 12146 (3 CFR, 1980 Comp.,
pp. 409-412).
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62192, Oct. 25, 2004]
Sec. 1.903 Settlement, waiver, or compromise under other statutory
or regulatory authority.
Nothing in Secs. 1.900 through 1.953 precludes VA settlement,
waiver, compromise, or other disposition of any claim under statutes and
implementing regulations other than subchapter II of
[[Page 101]]
chapter 37 of Title 31 of the United States Code (Claims of the United
States Government) and the standards in Title 31 CFR parts 900 through
904. See, for example, the Federal Medical Care Recovery Act (42 U.S.C.
2651 et seq.) and applicable regulations, 28 CFR part 43. In such cases,
the laws and regulations that are specifically applicable to claims
collection activities of VA generally take precedence over 31 CFR parts
900 through 904.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62192, Oct. 25, 2004]
Sec. 1.904 Form of payment.
Claims may be paid in the form of money or, when a contractual basis
exists, VA may demand the return of specific property or the performance
of specific services.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62192, Oct. 25, 2004]
Sec. 1.905 Subdivision of claims not authorized.
Debts may not be subdivided to avoid the monetary ceiling
established by 31 U.S.C. 3711(a)(2). A debtor's liability arising from a
particular transaction or contract shall be considered as a single debt
in determining whether the debt is one of less than $100,000 (excluding
interest, penalties, and administrative costs) or such higher amount as
the Attorney General shall from time to time prescribe for purposes of
compromise, suspension, or termination of collection activity.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62192, Oct. 25, 2004]
Sec. 1.906 Required administrative proceedings.
(a) In applying Secs. 1.900 through 1.953, VA is not required to
omit, foreclose, or duplicate administrative proceedings required by
contract or other laws or regulations.
(b) Nothing contained in Secs. 1.900 through 1.953 is intended to
foreclose the right of any debtor to an administrative proceeding,
including appeals, waivers, and hearings provided by statute, contract,
or VA regulation (see 38 U.S.C. 3720(a)(4) and 5302 and 42 U.S.C. 2651-
2653).
(Authority: 38 U.S.C. 501, 3720(a)(4), 5302; 42 U.S.C. 2651 through
2653)
[69 FR 62192, Oct. 25, 2004]
Sec. 1.907 Definitions.
(a) The definitions and construction found in the Federal Claims
Collection Standards in 31 CFR 900.2(a) through (d), and the definitions
in the provisions on administrative wage garnishment in 31 CFR 285.11(c)
shall apply to Secs. 1.900 through 1.953, except as otherwise stated.
(b) As used in Secs. 1.900 through 1.953, referral for litigation
means referral to the Department of Justice for appropriate legal
actions, except in those specified instances where a case is referred to
a VA Regional Counsel for legal action.
(c) As used in Secs. 1.900 through 1.953, VA benefit program means
medical care, home loan, and benefits payment programs administered by
VA under Title 38 of the United States Code, except as otherwise stated.
(d) As used in Secs. 1.900 through 1.953, Treasury means the United
States Department of the Treasury.
(Authority: 31 U.S.C. 3701, 3711; 38 U.S.C. 501, 5316)
[69 FR 62192, Oct. 25, 2004]
Standards for Collection of Claims
Authority: Sections 1.900 through 1.953 are issued under the
authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, and as noted
in specific sections.
Source: 32 FR 2613, Feb. 8, 1967, unless otherwise noted.
Sec. 1.910 Aggressive collection action.
(a) VA will take aggressive collection action on a timely basis,
with effective follow-up, to collect all claims for money or property
arising from its activities.
(b) In accordance with 31 U.S.C. 3711(g) and the procedures set
forth at 31 CFR 285.12, VA shall transfer to Treasury any non-tax debt
or claim that has been delinquent for a period of 180 days or more so
that Treasury may take appropriate action to collect the debt or
terminate collection action.
[[Page 102]]
This requirement does not apply to any debt that:
(1) Is in litigation or foreclosure;
(2) Will be disposed of under an approved asset sale program;
(3) Has been referred to a private collection contractor for a
period of time acceptable to the Secretary of the Treasury;
(4) Is at a debt collection center for a period of time acceptable
to the Secretary of the Treasury;
(5) Will be collected under internal offset procedures within 3
years after the debt first became delinquent; or
(6) Is exempt from this requirement based on a determination by the
Secretary of the Treasury that exemption for a certain class of debt is
in the best interest of the United States. VA may request that the
Secretary of the Treasury exempt specific classes of debts.
(c) In accordance with 31 U.S.C. 3716(c)(6) and the procedures set
forth in 31 CFR part 285, VA shall notify Treasury of all past due,
legally enforceable non-tax debt that is over 180 days delinquent for
purposes of administrative offset, including tax refund offset and
federal salary offset. (Procedures for referral to Treasury for tax
refund offset are found at 31 CFR 285.2 and procedures for referral to
Treasury for federal salary offset are found at 38 CFR 1.995 and 31 CFR
285.7.)
(Authority: 31 U.S.C. 1311, 1316; 38 U.S.C. 501, 5314; 31 CFR part 285)
[69 FR 62192, Oct. 25, 2004]
Sec. 1.911 Collection of debts owed by reason of participation
in a benefits program.
(a) Scope. This section applies to the collection of debts resulting
from an individual's participation in a VA benefit or home loan program.
It does not apply to VA's other debt collection activities. Standards
for the demand for payment of all other debts owed to VA are set forth
in Sec. 1.911a. School liability debts are governed by Sec. 21.4009 of
this title.
(b) Written demands. When VA has determined that a debt exists by
reason of an administrative decision or by operation of law, VA shall
promptly demand, in writing, payment of the debt. VA shall notify the
debtor of his or her rights and remedies and the consequences of failure
to cooperate with collection efforts. Generally, one demand letter is
sufficient, but subsequent demand letters may be issued as needed.
(c) Rights and remedies. Subject to limitations referred to in this
paragraph, the debtor has the right to informally dispute the existence
or amount of the debt, to request waiver of collection of the debt, to a
hearing on the waiver request, and to appeal the Department of Veterans
Affairs decision underlying the debt. These rights can be exercised
separately or simultaneously. Except as provided in Sec. 1.912a
(collection by offset), the exercise of any of these rights will not
stay any collection proceeding.
(1) Informal dispute. This means that the debtor writes to the
Department of Veterans Affairs and questions whether he or she owes the
debt or whether the amount is accurate. The Department of Veterans
Affairs will, as expeditiously as possible, review the accuracy of the
debt determination. If the resolution is adverse to the debtor, he or
she may also request waiver of collection as indicated in paragraphs
(c)(2) and (3) of this section.
(2) Request for waiver; hearing on request. The debtor has the right
to request waiver of collection, in accordance with Sec. 1.963 or
Sec. 1.964, and the right to a hearing on the request. Requests for
waivers must be filed in writing. A waiver request must be filed within
the time limit set forth in 38 U.S.C. 5302. If waiver is granted, in
whole or in part, the debtor has a right to refund of amounts already
collected up to the amount waived.
(3) Appeal. In accordance with parts 19 and 20 of this title, the
debtor may appeal the decision underlying the debt.
(d) Notification. The Department of Veterans Affairs shall notify
the debtor in writing of the following:
(1) The exact amount of the debt;
(2) The specific reasons for the debt, in simple and concise
language;
(3) The rights and remedies described in paragraph (c) of this
section, including a brief explanation of the concept of, and
requirements for, waiver;
[[Page 103]]
(4) That collection may be made by offset from current or future VA
benefit payments (see Sec. 1.912a). In addition, the debtor shall be
advised of any policies with respect to the use of credit bureaus, debt
collection centers, and collection agencies; any other remedies to
enforce payment of the debt, including administrative wage garnishment,
Federal salary offset, tax refund offset, and litigation; and the
requirement that any debt delinquent for more than 180 days be
transferred to Treasury for administrative offset or collection.
(5) That interest and administrative costs may be assessed in
accordance with Sec. 1.915, as appropriate;
(6) That the debtor shall have the opportunity to inspect and copy
records; and
(7) That the debtor shall have the opportunity to enter into a
repayment agreement.
(e) Sufficiency of notification. Notification is sufficient when
sent by ordinary mail directed to the debtor's last known address and
not returned as undeliverable by postal authorities.
(f) Further explanation. Further explanation may be found for--
(1) Appellate rights, in parts 19 and 20 of this title;
(2) Notification of any decision affecting the payment of benefits
or granting relief, in Sec. 3.103(e);
(3) Right to appeal a waiver decision, in Sec. 1.958;
(4) Refund to a successful waiver applicant of money already
collected, in Sec. 1.967; and
(5) The assessment of interest and administrative costs, in
Sec. 1.915.
(Authority: 38 U.S.C. 501, 5302, 5314)
[48 FR 1055, Jan. 10, 1983; 48 FR 6336, Feb. 11, 1983. Redesignated and
amended at 52 FR 42105, Nov. 3, 1987; 54 FR 34980, Aug. 23, 1989; 69 FR
62193, Oct. 25, 2004]
Sec. 1.911a Collection of non-benefit debts.
(a) This section is written in accordance with 31 CFR 901.2 and
applies to the demand for payment of all debts, except those debts
arising out of participation in a VA benefit or home loan program.
Procedures for the demand for payment of VA benefit or home loan program
debts are set forth in Sec. 1.911.
(b) Written demand as described in paragraph (c) of this section
shall be made promptly upon a debtor of VA in terms that inform the
debtor of the consequences of failing to cooperate with VA to resolve
the debt. Generally, one demand letter is sufficient, but subsequent
letters may be issued. In determining the timing of the demand letter,
VA should give due regard to the need to refer debts promptly to the
Department of Justice for litigation, in accordance with Secs. 1.950
through 1.953. When necessary to protect VA's interest (for example, to
prevent the running of a statute of limitations), written demand may be
preceded by other appropriate actions under 38 CFR 1.900 through 1.953,
including immediate referral for litigation.
(c) The written demand letter shall inform the debtor of:
(1) The basis for the indebtedness and any rights the debtor may
have to seek review within VA, including the right to request waiver;
(2) The applicable standards for imposing any interest or other late
payment charges;
(3) The date by which payment should be made to avoid interest and
other late payment charges and enforced collection, which generally
should not be more than 30 days from the date that the demand letter is
mailed;
(4) The name, address, and phone number of a contact person or
office within the agency;
(5) The opportunity to inspect and copy VA records related to the
debt; and
(6) The opportunity to make a written agreement to repay the debt.
(d) In addition to the items listed in paragraph (c) of this
section, VA should include in the demand letter VA's willingness to
discuss alternative methods of payment and its policies with respect to
the use of credit bureaus, debt collection centers, and collection
agencies. The letter should also indicate the agency's remedies to
enforce payment of the debt (including assessment of interest,
administrative costs and penalties, administrative garnishment, Federal
salary offset, tax refund offset, administrative offset, and litigation)
and the requirement
[[Page 104]]
that any debt delinquent for more than 180 days be transferred to
Treasury for collection.
(e) VA should respond promptly to communications from debtors and
should advise debtors who dispute debts, or request waiver, to furnish
available evidence to support their contentions.
(f) Prior to referring a debt for litigation, VA should advise each
debtor determined to be liable for the debt that, unless the debt can be
collected administratively, litigation may be initiated. This
notification may be given as part of a demand letter under paragraph (c)
of this section or in a separate letter.
(g) When VA learns that a bankruptcy petition has been filed with
respect to a debtor, before proceeding with further collection action,
VA should immediately seek legal advice from either VA's General Counsel
or Regional Counsel concerning the impact of the Bankruptcy Code on any
pending or contemplated collection activities. Unless VA determines that
the automatic stay imposed at the time of filing pursuant to 11 U.S.C.
362 has been lifted or is no longer in effect, in most cases collection
activity against the debtor should stop immediately.
(1) After VA seeks legal advice, a proof of claim should be filed in
most cases with the bankruptcy court or the Trustee. VA should refer to
the provisions of 11 U.S.C. 106 relating to the consequences on
sovereign immunity of filing a proof of claim.
(2) If VA is a secured creditor, it may seek relief from the
automatic stay regarding its security, subject to the provisions and
requirements of 11 U.S.C. 362.
(3) Offset is prohibited in most cases by the automatic stay.
However, VA should seek legal advice from VA's General Counsel or
Regional Counsel to determine whether payments to the debtor and
payments of other agencies available for offset may be frozen by VA
until relief from the automatic stay can be obtained from the bankruptcy
court. VA also should seek legal advice from VA's General Counsel or
Regional Counsel to determine whether recoupment is available.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62193, Oct. 25, 2004]
Sec. 1.912 Collection by offset.
(a) Authority and scope. In accordance with the procedures set forth
in 31 CFR 901.3, as well as 31 CFR part 285, VA shall collect debts by
administrative offset from payments made by VA to a debtor indebted to
VA. Also in accordance with 31 CFR 901.3(b), as well as 31 CFR part 285,
VA shall refer past due, legally enforceable non-tax debts which are
over 180 days delinquent to Treasury for collection by centralized
administrative offset (further procedures are set forth in paragraph (g)
of this section). This section does not pertain to offset from either VA
benefit payments made under the authority of 38 U.S.C. 5314 or from
current salary, but does apply to offset from all other VA payments,
including an employee's final salary check and lump-sum leave payment.
Procedures for offset from benefit payments are found in Sec. 1.912a.
Procedures for offset from current Federal salary are found in
Secs. 1.980 through 1.995. NOTE: VA cannot offset, or refer for the
purpose of offset, either under the authority of this section or under
any other authority found in Secs. 1.900 through 1.953 and Secs. 1.980
through 1.995, any VA home loan program debt described in 38 U.S.C. 3726
unless the requirements set forth in that section have been met.
(b) Notification. Prior to initiation of administrative offset, if
not provided in the initial notice of indebtedness, VA is required to
provide the debtor with written notice of:
(1) The nature and amount of the debt;
(2) VA's intention to pursue collection by offset procedures from
the specified VA payment, the date of commencement of offset, and the
exact amount to be offset;
(3) The opportunity to inspect and copy VA records pertaining to the
debt;
(4) The right to contest either the existence or amount of the debt
or the proposed offset schedule, or if applicable, to request a waiver
of collection of
[[Page 105]]
the debt, or to request a hearing on any of these matters;
(5) That commencement of offset will begin, unless the debtor makes
a written request for the administrative relief discussed in paragraph
(b)(4) of this section within 30 days of the date of this notice; and
(6) The opportunity to enter into a written agreement with VA to
repay the debt in lieu of offset.
(c) Deferral of offset. (1) If the debtor, within 30 days of the
date of the notification required by paragraph (b) of this section,
disputes in writing the existence or amount of the debt or the amount of
the scheduled offset, offset shall not commence until the dispute is
reviewed and a decision is rendered by VA adverse to the debtor.
(2) If the debtor, within 30 days of the date of the required
notification by VA, requests in writing the waiver of collection of the
debt in accordance with Sec. 1.963, Sec. 1.963a, or Sec. 1.964, offset
shall not commence until VA has made an initial decision to deny the
waiver request.
(3) If the debtor, within 30 days of the required notification by
VA, requests in writing a hearing on the issues found in paragraphs
(c)(1) and (2) of this section, offset shall not commence until a
decision is rendered by VA on the issue which is the basis of the
hearing.
(d) Exceptions. (1) Offset may commence prior to either resolution
of a dispute or decision on a waiver request as discussed in paragraph
(c) of this section, if collection of the debt would be jeopardized by
deferral of offset (for example, if VA first learns of the debt when
there is insufficient time before a final payment would be made to the
debtor to allow for prior notice and opportunity for review or waiver
consideration). In such a case, notification pursuant to paragraph (b)
of this section shall be made at the time offset begins or as soon
thereafter as possible. VA shall promptly refund any money that has been
collected that is ultimately found not to have been owed to the
Government.
(2) If the United States has obtained a judgment against the debtor,
offset may commence without the notification required by paragraph (b)
of this section. However, a waiver request filed in accordance with the
time limits and other requirements of Sec. 1.963, Sec. 1.963a, or
Sec. 1.964 will be considered, even if filed after a judgment has been
obtained against the debtor. If waiver is granted, in whole or in part,
refund of amounts already collected will be made in accordance with
Sec. 1.967.
(3) The procedures set forth in paragraph (b) of this section may be
omitted when the debt arises under a contract that provides for notice
and other procedural protections.
(4) Offset may commence without the notification required by
paragraph (b) of this section when the offset is in the nature of a
recoupment. As defined in 31 CFR 900.2(d), recoupment is a special
method for adjusting debts arising under the same transaction or
occurrence.
(e) Hearing. (1) After a debtor requests a hearing, VA shall notify
the debtor of the form of the hearing to be provided; i.e., whether the
hearing will either be oral or paper. If an oral hearing is determined
to be proper by the hearing official, the notice shall set forth the
date, time, and location of the hearing. If the hearing is to be a paper
review, the debtor shall be notified that he or she should submit his or
her position and arguments in writing to the hearing official by a
specified date, after which the record shall be closed. This date shall
give the debtor reasonable time to submit this information.
(2) Unless otherwise required by law, an oral hearing under this
paragraph is not required to be a formal evidentiary type of hearing.
(3) A debtor who requests a hearing shall be provided an oral
hearing if VA determines that the matter cannot be resolved by review of
documentary evidence. Whenever an issue of credibility or veracity is
involved, an oral hearing will always be provided the debtor. For
example, the credibility or veracity of a debtor is always an issue
whenever the debtor requests a waiver of collection of the debt. Thus, a
hearing held in conjunction with a waiver request will always be an oral
hearing. If a determination is made to provide an oral hearing, the
hearing official may offer
[[Page 106]]
the debtor the opportunity for a hearing by telephone conference call.
If this offer is rejected or if the hearing official declines to offer a
telephone conference call, the debtor shall be provided an oral hearing
permitting the personal appearance of the debtor, his or her personal
representative, and witnesses. Witnesses shall testify under oath or
affirmation.
(4) In all other cases where a debtor requests a hearing, a paper
hearing shall be provided. The debtor shall be provided an opportunity
to submit material for the record. A paper hearing shall consist of a
review of the written evidence of record by the designated hearing
official.
(f) Statutes of limitation; multiple debts. When collecting multiple
debts by administrative offset, VA shall apply the recovered amounts to
those debts in accordance with the best interests of the United States,
as determined by the facts and circumstances of the particular case,
paying special attention to applicable statutes of limitation. In
accordance with 31 CFR 901.3(a)(4), VA may not initiate offset to
collect a debt more than 10 years after VA's right to collect the debt
first accrued (with certain exceptions as specified in 31 CFR
901.3(a)(4)).
(g) Centralized administrative offset. (1) When VA refers delinquent
debts to Treasury for centralized administrative offset in accordance
with 31 CFR part 285, VA must certify that:
(i) The debts are past due and legally enforceable; and
(ii) VA has complied with all due process requirements under 31
U.S.C. 3716(a) and paragraphs (b) and (c) of this section.
(2) Payments that are prohibited by law from being offset are exempt
from centralized administrative offset.
(h) Computer Matching and Privacy Act waiver. In accordance with 31
U.S.C. 3716(f), the Secretary of the Treasury may waive the provisions
of the Computer Matching and Privacy Protection Act of 1988 concerning
matching agreements and post-match notification and verification (5
U.S.C. 552a(o) and (p)) for centralized administrative offset upon
receipt of a certification from a creditor agency that the due process
requirements enumerated in 31 U.S.C. 3716(a) and paragraphs (b) and (c)
of this section have been met. The certification of a debt in accordance
with paragraph (g) of this section will satisfy this requirement. If
such a waiver is granted, only the Data Integrity Board of the
Department of the Treasury is required to oversee any matching
activities, in accordance with 31 U.S.C. 3716(g).
(i) Requests by creditor agencies for offset. Unless the offset
would not be in VA's best interest, or would otherwise be contrary to
law, VA will comply with requests by creditor agencies to offset VA
payments (except for current salary or benefit payments) made to a
person indebted to the creditor agency. However, before VA may initiate
offset, the creditor agency must certify in writing to VA that the
debtor has been provided:
(1) Written notice of the type and amount of the debt and the intent
of the creditor agency to use administrative offset to collect the debt;
(2) The opportunity to inspect and copy agency records related to
the debt;
(3) The opportunity for review within the agency of the
determination of the indebtedness; and
(4) The opportunity to make a written agreement to repay the debt.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[52 FR 42105, Nov. 3, 1987, as amended at 54 FR 34980, Aug. 23, 1989; 69
FR 62194, Oct. 25, 2004]
Sec. 1.912a Collection by offset--from VA benefit payments.
(a) Authority and scope. VA shall collect debts governed by
Sec. 1.911 of this part by offset against any current or future VA
benefit payments to the debtor. Unless paragraphs (c) or (d) of this
section apply, offset shall commence promptly after notification to the
debtor as provided in paragraph (b) of this section. Certain military
service debts shall be collected by offset against current or future
compensation or pension benefit payments to the debtor under authority
of 38 U.S.C. 5301(c), as provided in paragraph (e) of this section.
(b) Notification. Unless paragraph (d) of this section applies,
offset shall not commence until the debtor has been
[[Page 107]]
notified in writing of the matters described in Sec. 1.911(c) and (d)
and paragraph (c) of this section.
(c) Deferral of offset. (1) If the debtor, within thirty days of the
date of the notification required by paragraph (b) of this section,
disputes, in writing, the existence or amount of the debt in accordance
with Sec. 1.911(c)(1), offset shall not commence until the dispute is
reviewed as provided in Sec. 1.911(c)(1) and unless the resolution is
adverse to the debtor.
(2) If the debtor, within thirty days of the date of notification
required by paragraph (b) of this section, requests, in writing, waiver
of collection in accordance with Sec. 1.963 or Sec. 1.964, as
applicable, offset shall not commence until the Department of Veterans
Affairs has made an initial decision on waiver.
(3) If the debtor, within thirty days of the notification required
by paragraph (b) of this section, requests, in writing, a hearing on the
waiver request, no decision shall be made on the waiver request until
after the hearing has been held.
(4) VA will pursue collection action once an adverse initial
decision is reached on the debtor's request for waiver and/or the
debtor's informal dispute (as described in Sec. 1.911(c)(1)) concerning
the existence or amount of the debt, even if the debtor subsequently
pursues appellate relief in accordance with parts 19 and 20 of this
title.
(d) Exceptions. Offset may commence prior to the resolution of a
dispute or a decision on a waiver request if collection of the debt
would be jeopardized by deferral of offset. In such case, notification
pursuant to Sec. 1.911(d) shall be made at the time offset begins or as
soon thereafter as possible.
(Authority: 38 U.S.C. 5314, Ch. 37)
(e) Offset of military service debts. (1) In accordance with 38
U.S.C. 5301(c), VA shall collect by offset from any current or future
compensation or pension benefits payable to a veteran under laws
administered by VA, the uncollected portion of the amount of any
indebtedness associated with the veteran's participation in a plan
prescribed in subchapter I or II of 10 U.S.C. chapter 73.
(2) Offsets of a veteran's compensation or pension benefit payments
to recoup indebtedness to the military services as described in
paragraph (e)(1) of this section shall only be made by VA when the
military service owed the debt has:
(i) Determined the amount of the indebtedness of the veteran;
(ii) Certified to VA that due process in accordance with the
procedures prescribed in 31 U.S.C. 3716 have been provided to the
veteran; and
(iii) Requested collection of the total debt amount due.
(3) Offset from any compensation or pension benefits under the
authority of 38 U.S.C. 5301(c) shall not exceed 15% of the net monthly
compensation or pension benefit payment. The net monthly compensation or
pension benefit payment is defined as the authorized monthly
compensation or pension benefit payment less all current deductions.
(Authority: 38 U.S.C. 5301(c) and 5314)
[48 FR 1055, Jan. 10, 1983, as amended at 52 FR 42106, Nov. 3, 1987; 57
FR 47263, Oct. 15, 1992; 69 FR 62194, Oct. 25, 2004]
Sec. 1.913 Liquidation of collateral.
(a) VA should liquidate security or collateral through the exercise
of a power of sale in the security instrument or a nonjudicial
foreclosure, and apply the proceeds to the applicable debt, if the
debtor fails to pay the debt within 180 days after demand and if such
action is in the best interest of the United States. Collection from
other sources, including liquidation of security or collateral, is not a
prerequisite to requiring payment by a surety, insurer, or guarantor,
unless such action is expressly required by statute or contract.
(b) When VA learns that a bankruptcy petition has been filed with
respect to a debtor, VA should seek legal advice from VA's General
Counsel or Regional Counsel concerning the impact of the Bankruptcy
Code, including, but not limited to, 11 U.S.C. 362, to determine the
applicability of the automatic stay and the procedures for obtaining
relief from such stay prior to
[[Page 108]]
proceeding under paragraph (a) of this section.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62195, Oct. 25, 2004]
Sec. 1.914 Collection in installments.
(a) Whenever feasible, VA shall collect the total amount of a debt
in one lump sum. If a debtor is financially unable to pay a debt in one
lump sum, VA may accept payment in regular installments. VA should
obtain financial statements from debtors who represent that they are
unable to pay in one lump sum and independently verify such
representations whenever possible. If VA agrees to accept payments in
regular installments, VA should obtain a legally enforceable written
agreement from the debtor that specifies all of the terms of the
arrangement and contains a provision accelerating the debt in the event
of default.
(b) The size and frequency of installment payments should bear a
reasonable relation to the size of the debt and the debtor's ability to
pay. If possible, the installment payments should be sufficient in size
and frequency to liquidate the debt in 3 years or less.
(c) Security for deferred payments should be obtained in appropriate
cases. However, VA may accept installment payments if the debtor refuses
to execute a written agreement or to give security.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62195, Oct. 25, 2004]
Sec. 1.915 Interest, administrative costs, and penalties.
(a) Except as otherwise provided by statute, contract, or other
regulation to the contrary, and subject to 38 U.S.C. 3485(e) and 5302,
VA shall assess:
(1) Interest on all indebtedness to the United States arising out of
participation in a VA benefit, medical care, or home loan program under
authority of Title 38, U.S. Code.
(2) Interest and administrative costs of collection on such debts
described in paragraph (a)(1) of this section where repayment has become
delinquent (as defined in 31 CFR 900.2(b)), and
(3) Interest, administrative costs, and penalties in accordance with
31 CFR 901.9 on all debts other than those described in paragraph (a)(1)
of this section.
(b) Every party entering into an agreement with the Department of
Veterans Affairs for repayment of indebtedness in installments shall be
advised of the interest charges to be added to the debt. All debtors
being provided notice of indebtedness, including those entering into
repayment agreements, shall be advised that upon the debt becoming
delinquent, or in the case of repayment of already delinquent debts,
interest and the administrative costs of collection will be added to the
principal amount of the debt.
(c) The rate of interest charged by VA shall be based on the rate
established annually by the Secretary of the Treasury in accordance with
31 U.S.C. 3717 and shall be adjusted annually by VA on the first day of
the calendar year. Once the rate of interest has been determined for a
particular debt, the rate shall remain in effect throughout the duration
of repayment of that debt. When a debtor defaults on a repayment
agreement and seeks to enter into a new agreement, VA may require
payment of interest at a new rate that reflects the current value of
funds to the Treasury at the time the new agreement is executed.
Interest shall not be compounded, that is, interest shall not be charged
on accrued interest and administrative costs required by this section.
If, however, a debtor defaults on a previous repayment agreement,
interest and administrative costs that accrued but were not collected
under the defaulted agreement shall be added to the principal under the
new agreement.
(d) Interest on amounts covered by this section shall accrue from
the date the initial notice of the debt is mailed to the debtor.
Notification shall be considered sufficient when effected by ordinary
mail, addressed to the last known address, and such notice is not
returned as undeliverable by postal authorities.
(e) Interest under this section shall not be charged if the debt is
paid in full within 30 days of mailing of the initial notice described
in paragraph (b) of this section. Once interest begins to accrue, and
after expiration of the time period for payment of the debt in full
[[Page 109]]
to avoid assessment of interest and administrative costs, any amount
received toward the payment of such debt shall be first applied to
payment of outstanding administrative cost charges and then to accrued
interest or costs, and then to principal, unless a different rule is
prescribed by statute, contract, or other regulation.
(f) All or any part of the interest and administrative costs
assessed under this section are subject to consideration for waiver
under section 5302 of title 38 U.S.C., and appropriate administrative
procedures.
(1) In general, interest and administrative costs may be waived only
when the principal of the debt on which they are assessed is waived by a
Committee on Waivers and Compromises. However, VA may forbear collection
of interest and administrative costs, exclusive of collection of the
principal of the debt on which they are assessed, as well as terminate
further assessment of interest and administrative costs when the
collection of such interest and costs are determined to be not in the
government's best interest. Collection of interest and administrative
costs shall not be considered to be in the best interest of the
government when the amount of assessed interest and administrative cost
is so large that there is a reasonable certainty that the original debt
will never be repaid. The determination to forbear collection of
interest and administrative cost, exclusive of collection of the
principal of the debt, shall be made by the Chief of the Fiscal activity
at the station responsible for the collection of the debt. Such a
determination is not within the jurisdiction of a Committee on Waivers
and Compromises.
(2) [Reserved]
(g) Administrative costs assessed under this section shall be the
average costs of collection of similar debts, or actual collection costs
as may be accurately determined in the particular case. No
administrative costs of collection will be assessed under this section
in any cases where the indebtedness is paid in full prior to the 30-day
period specified in paragraph (e) of this section, or in any case where
a repayment plan is proposed by the debtor and accepted by VA within
that 30-day period, unless such repayment agreement becomes delinquent
(as defined in 31 CFR 900.2(b)).
(Authority: 31 U.S.C. 3717; 38 U.S.C. 501, 5302, 5315)
[46 FR 62057, Dec. 22, 1981, as amended at 52 FR 42107, Nov. 3, 1987.
Redesignated and amended at 69 FR 62195, Oct. 25, 2004]
Sec. 1.916 Disclosure of debt information to consumer reporting
agencies (CRA).
(a) The Department of Veterans Affairs may disclose all information
determined to be necessary, including the name, address, Department of
Veterans Affairs file number, Social Security number, and date of birth,
to consumer reporting agencies for the purpose of--
(1) Obtaining the location of an individual indebted to the United
States as a result of participation in any benefits program administered
by VA or indebted in any other manner to VA;
(2) Obtaining a consumer report in order to assess an individuals
ability to repay a debt when such individual has failed to respond to
the Department's demand for repayment or when such individual has
notified the Department that he/she will not repay the indebtedness; or
(3) Obtaining the location of an individual in order to conduct
program evaluation studies as required by 38 U.S.C. 527 or any other
law.
(b) Information disclosed by the Department of Veterans Affairs
under paragraph (a) of this section to consumer reporting agencies shall
neither expressly nor implicitly indicate that an individual is indebted
to the United States nor shall such information be recorded by consumer
reporting agencies in a manner that reflects adversely upon the
individual. Prior to disclosing this information, the Department of
Veterans Affairs shall ascertain that consumer reporting agencies with
which it contracts are able to comply with this requirement. The
Department of Veterans Affairs shall also make reasonable efforts to
insure compliance by its contractor with this requirement.
(c) Subject to the conditions set forth in paragraph (d) of this
section, information concerning individuals may be
[[Page 110]]
disclosed to consumer reporting agencies for inclusion in consumer
reports pertaining to the individual, or for the purpose of locating the
individual. Disclosure of the fact of indebtedness will be made if the
individual fails to respond in accordance with written demands for
repayment, or refuses to repay a debt to the United States. In making
any disclosure under this section, VA will provide consumer reporting
agencies with sufficient information to identify the individual,
including the individual's name, address, if known, date of birth, VA
file number, and Social Security number.
(d)(1) Prior to releasing information under paragraph (c) of this
section, the Department of Veterans Affairs will send a notice to the
individual. This notice will inform the individual that--
(i) The Department of Veterans Affairs has determined that he or she
is indebted to the Department of Veterans Affairs;
(ii) The debt is presently delinquent; and
(iii) The fact of delinquency may be reported to consumer reporting
agencies after 30 days have elapsed from the date of the notice.
(2)(i) In accordance with Sec. 1.911 and Sec. 1.911a, VA shall
notify each individual of the right to dispute the existence and amount
of the debt and to request a waiver of the debt, if applicable.
(ii) If the Department of Veterans Affairs has not previously
notified the individual of the rights described in paragraph (d)(2)(i)
of this section, the Department of Veterans Affairs will include this
information in the notice described in paragraph (d)(1) of this section.
The individual shall be afforded a minimum of 30 days from the date of
the notice to respond to it before information is reported to consumer
reporting agencies.
(3) The Department of Veterans Affairs will defer reporting
information to a consumer reporting agency if the individual disputes
the existence or amount of any debt or requests waiver of the debt
within the time limits set forth in paragraph (d)(2)(ii) of this
section. The Department of Veterans Affairs will review any dispute and
notify the individual of its findings. If the original decision is
determined to be correct, or if the individual's request for waiver is
denied, the Department of Veterans Affairs may report the fact of
delinquency to a consumer reporting agency. However, the individual
shall be afforded 30 days from date of the notice of the agency's
determination to repay the debt.
(4) Nothing in this section affects an individual's right to appeal
an agency decision to the Board of Veterans Appeals. However,
information concerning the debt may be disclosed while an appeal is
pending before the Board of Veterans Appeals.
(5) Upon request, the Department of Veterans Affairs will notify an
individual--
(i) Whether information concerning a debt has been reported to
consumer reporting agencies;
(ii) Of the name and address of each consumer reporting agency to
which information has been released; and
(iii) Of the specific information released.
A notice of the right to request this information will be sent with the
notice described in paragraph (d)(1) of this section.
(e) Subsequent to disclosure of information to consumer reporting
agencies as described in paragraph (c) of this section, the Department
of Veterans Affairs shall:
(1) Notify on a monthly basis each consumer reporting agency
concerned of any substantial change in the status or amount of
indebtedness.
(2) Promptly verify any and all information disclosed if so
requested by the consumer reporting agency concerned.
(f) In the absence of a different rule prescribed by statute,
contract, or other regulation, an indebtedness is considered delinquent
if not paid by the individual by the date due specified in the notice of
indebtedness, unless satisfactory arrangements are made by such date.
(g) Notification shall be considered sufficient when effected by
ordinary mail, addressed to the last known address, and such notice is
not returned as undeliverable by postal authorities.
(h) The Privacy Act (5 U.S.C. 552a) does not apply to any contract
between the Department of Veterans Affairs and a consumer reporting
agency, nor
[[Page 111]]
does it apply to a consumer reporting agency and its employees. See 38
U.S.C. 5701(i). This paragraph does not relieve the Department of
Veterans Affairs of its obligation to comply with the Privacy Act.
(i) The term ``consumer reporting agency'' means any person or
agency which, for monetary fees, dues, or on a cooperative nonprofit
basis, regularly engages in whole or in part in the practice of
assembling or evaluating consumer credit information or other
information on consumers for the purpose of furnishing consumer reports
to third parties or to other consumer reporting agencies. The term
``consumer reporting agency'' shall also mean any person or agency which
serves as a marketing agent under arrangements enabling third parties to
obtain such information from consumer reporting agencies, or which
obtain such information for the purpose of furnishing it to consumer
reporting agencies.
(Authority: 31 U.S.C. 3711(e); 38 U.S.C. 501, 5701(g) and (i))
[46 FR 62058, Dec. 22, 1981, as amended at 52 FR 42107, Nov. 3, 1987.
Redesignated and amended at 69 FR 62195, Oct. 25, 2004]
Sec. 1.917 Contracting for collection services.
(a) VA has authority to contract for collection services to recover
delinquent debts, provided that:
(1) The authority to resolve disputes, compromise claims, suspend or
terminate collection and refer the matter for litigation shall be
retained by VA;
(2) The contractor shall be subject to 38 U.S.C. 5701, and to the
Privacy Act of 1974, as amended, to the extent specified in 5 U.S.C.
552a(m), and to applicable Federal and State laws and regulations
pertaining to debt collection practices, such as the Fair Debt
Collection Practices Act, 15 U.S.C. 1692 et seq.
(3) The contractor shall be required to strictly account for all
amounts collected;
(4) Upon returning an account to VA for subsequent referral to the
Department of Justice for litigation, the contractor must agree to
provide any data contained in its files relating to Sec. 1.951.
(b) In accordance with 31 U.S.C. 3718(d), or as otherwise permitted
by law, collection service contracts may be funded in the following
manner:
(1) VA may fund a collection service contract on a fixed-fee basis
(i.e., payment of a fixed fee determined without regard to the amount
actually collected under the contract). Payment of the fee under this
type of contract must be charged to available appropriations;
(2) VA may also fund a collection service contract on a contingent-
fee basis (i.e., by including a provision in the contract permitting the
contractor to deduct its fee from amounts collected under the contract).
The fee should be based upon a percentage of the amount collected,
consistent with prevailing commercial practice;
(3) VA may enter into a contract under paragraph (b)(1) of this
section only if and to the extent that funding for the contract is
provided for in advance by an appropriation act or other legislation,
except that this requirement does not apply to the use of a revolving
fund authorized by statute;
(4) Except as authorized under paragraphs (b)(2) and (b)(5) of this
section, or unless otherwise specifically provided by law, VA shall
deposit all amounts recovered under collection service contracts for
Loan Guaranty debts into the Loan Guaranty Revolving Fund, and for all
other debts in the Treasury as miscellaneous receipts pursuant to 31
U.S.C. 3302.
(5) For benefit overpayments recovered under collection service
contract, VA, pursuant to 31 U.S.C. 3302, shall deposit:
(i) Amounts equal to the original overpayments in the appropriations
account from which the overpayments were made, and
(ii) Amount of interest or administrative costs in the Treasury as
miscellaneous receipts.
(c) VA shall use government-wide debt collection contracts to obtain
debt collection services provided by private collection contractors.
However, VA may refer debts to private collection contractors pursuant
to a contract between VA and a private collection contractor only if
such debts are not subject to the requirement to
[[Page 112]]
transfer debts to Treasury for debt collection. See 31 U.S.C. 3711(g),
31 CFR 285.12(e), and 38 CFR 1.910.
(d) VA may enter into contracts for locating and recovering assets
of the United States, such as unclaimed assets.
(e) VA may enter into contracts for debtor asset and income search
reports. In accordance with 31 U.S.C. 3718(d), such contracts may
provide that the fee a contractor charges the agency for such services
may be payable from the amounts recovered, unless otherwise prohibited
by statute.
(Authority: 31 U.S.C. 3718; 38 U.S.C. 501)
[52 FR 42107, Nov. 3, 1987. Redesignated and amended at 69 FR 62195,
Oct. 25, 2004]
Sec. 1.918 Use and disclosure of mailing addresses.
(a) When attempting to locate a debtor in order to compromise or
collect a debt in accordance with Secs. 1.900 through 1.953, VA may send
a request to the Secretary of the Treasury, or his/her designee, in
order to obtain the debtor's most current mailing address from the
records of the Internal Revenue Service.
(b) VA is authorized to use mailing addresses obtained under
paragraph (a) of this section to enforce collection of a delinquent debt
and may disclose such mailing addresses to other agencies and to
collection agencies for collection purposes.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[52 FR 42108, Nov. 3, 1987. Redesignated and amended at 69 FR 62196,
Oct. 25, 2004]
Sec. 1.919 Administrative offset against amounts payable from Civil
Service Retirement and Disability Fund, Federal Employees Retirement
System (FERS), final salary check, and lump sum leave payments.
(a) Unless otherwise prohibited by law or regulation, and in
accordance with 31 CFR 901.3(d), VA may request that money which is due
and payable to a debtor from either the Civil Service Retirement and
Disability Fund or FERS be administratively offset in reasonable amounts
in order to collect, in one full payment or a minimal number of
payments, debts that are owed to VA by the debtor. Such requests shall
be made to the appropriate officials at the Office of Personnel
Management (OPM) in accordance with such regulations prescribed by the
Director of OPM. (See 5 CFR 831.1801 through 831.1808). In addition, VA
may also offset against a Federal employee's final salary check and lump
sum leave payment. See Sec. 1.912 for procedures for offset against a
final salary check and lump sum leave payment.
(b) When making a request to the Office of Personnel Management for
administrative offset under paragraph (a) of this section, VA shall
include a written certification that:
(1) The debtor owes VA a debt, including the amount of the debt;
(2) VA has complied with the applicable statutes, regulations, and
procedures of the Office of Personnel Management; and
(3) VA has complied with Secs. 1.911, 1.911a, 1.912, 1.912a, and 31
CFR 901.3, to the extent applicable, including any required hearing or
review.
(c) Once VA decides to request administrative offset from the Civil
Service Retirement and Disability Fund or Federal Employees Retirement
System (FERS) under paragraph (a) of this section, it shall make the
request as soon as possible after completion of the applicable
procedures in order that the Office of Personnel Management may identify
the debtor's account in anticipation of the time when the debtor
requests or becomes eligible to receive payments from the Fund or FERS.
This will satisfy any requirement that offset be initiated prior to
expiration of the applicable statutes of limitations. At such time as
the debtor makes a claim for payments from the Fund or FERS, if at least
a year has elapsed since the offset request was originally made, the
debtor should be permitted to offer a satisfactory repayment plan in
lieu of offset upon establishing that such offset will create financial
hardship.
(d) If VA collects all or part of the debt by other means before
deductions are made or completed in accordance with paragraph (a) of
this section, VA shall promptly act to modify or terminate its request
for offset under paragraph (a) of this section.
[[Page 113]]
(e) The Office of Personnel Management is neither required nor
authorized by this section to review the merits of VA's determination
with respect to the amount and validity of the debt waiver under 5
U.S.C. 5584 or 38 U.S.C. 5302, or providing or not providing an oral
hearing.
(Authority: 5 U.S.C. 8461; 31 U.S.C. 3711, 3716; 38 U.S.C. 501)
[52 FR 42108, Nov. 3, 1987. Redesignated and amended at 69 FR 62196,
Oct. 25, 2004]
Sec. 1.920 Referral of VA debts.
(a) When authorized, VA may refer an uncollectible debt to another
Federal or State agency for the purpose of collection action. Collection
action may include the offsetting of the debt from any current or future
payment, except salary (see paragraph (e) of this section), made by such
Federal or State agency to the person indebted to VA.
(b) VA must certify in writing that the individual owes the debt,
the amount and basis of the debt, the date on which payment became due,
and the date VA's right to collect the debt first accrued.
(c) This certification will also state that VA provided the debtor
with written notice of:
(1) The nature and amount of the debt;
(2) VA's intention to pursue collection by offset procedures;
(3) The opportunity to inspect and copy VA records pertaining to the
debt;
(4) The right to contest both the existence and amount of the debt
and to request a waiver of collection of the debt (if applicable), as
well as the right to a hearing on both matters;
(5) The opportunity to enter into a written agreement with VA for
the repayment of the debt; and
(6) Other applicable notices required by Secs. 1.911, 1.911a, 1.912,
and 1.912a.
(d) The written certification required by paragraphs (b) and (c) of
this section will also contain (for all debts) a listing of all actions
taken by both VA and the debtor subsequent to the notice, as well as the
dates of such actions.
(e) The referral by VA of a VA debt to another agency for the
purpose of salary offset shall be done in accordance with 38 CFR 1.980
through 1.995 and regulations prescribed by the Director of the Office
of Personnel Management (OPM) in 5 CFR part 550, subpart K.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[52 FR 42108, Nov. 3, 1987. Redesignated and amended at 69 FR 62196,
Oct. 25, 2004]
Sec. 1.921 Analysis of costs.
VA collection procedures should provide for periodic comparison of
costs incurred and amounts collected. Data on costs and corresponding
recovery rates for debts of different types and in various dollar ranges
should be used to compare the cost effectiveness of alternative
collection techniques, establish guidelines with respect to points at
which costs of further collection efforts are likely to exceed
recoveries, assist in evaluating offers in compromise, and establish
minimum debt amounts below which collection efforts need not be taken.
(Authority: 31 U.S.C. 3711-3719; 38 U.S.C. 501)
[69 FR 62196, Oct. 25, 2004]
Sec. 1.922 Exemptions.
(a) Sections 1.900 through 1.953, to the extent they reflect
remedies or procedures prescribed by the Debt Collection Act of 1982 and
the Debt Collection Improvement Act of 1996, such as administrative
offset, use of credit bureaus, contracting for collection agencies, and
interest and related charges, do not apply to debts arising under, or
payments made under, the Internal Revenue Code of 1986, as amended (26
U.S.C. 1 et seq.); the Social Security Act (42 U.S.C. 301 et seq.),
except to the extent provided under 42 U.S.C. 404 and 31 U.S.C. 3716(c);
or the tariff laws of the United States. These remedies and procedures,
however, may be authorized with respect to debts that are exempt from
the Debt Collection Act of 1982 and the DCIA of 1996, to the extent that
they are authorized under some other statute or the common law.
(b) This section should not be construed as prohibiting the use of
Secs. 1.900 through 1.953 when collecting debts owed by persons employed
by agencies
[[Page 114]]
administering the laws cited in paragraph (a) of this section unless the
debt arose under those laws.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62196, Oct. 25, 2004]
Sec. 1.923 Administrative wage garnishment.
(a) In accordance with the procedures set forth in 31 U.S.C. 3720D
and 31 CFR 285.11, VA or Treasury may request that a non-Federal
employer garnish the disposable pay of an individual to collect
delinquent non-tax debt owed to VA. VA may pursue wage garnishment
independently in accordance with this section or VA or Treasury may
pursue garnishment after VA refers a debt to Treasury in accordance with
Sec. 1.910 of this part and 31 CFR 285.12. For the purposes of this
section, any reference to Treasury also includes any private collection
agency under contract to Treasury.
(b) At least 30 days prior to the initiation of garnishment
proceedings, VA or Treasury shall send a written notice, as described in
31 CFR 285.11(e), by first class mail to the debtor's last known
address. This notice shall inform the debtor of:
(1) The nature and amount of the debt;
(2) The intention of VA or Treasury to initiate proceedings to
collect the debt through deductions from the debtor's pay until the debt
and all accumulated interest, and other late payment charges, are paid
in full, and;
(3) An explanation of the debtor's rights, including the
opportunity:
(i) To inspect and copy VA records pertaining to the debt;
(ii) To enter into a written repayment agreement with VA or Treasury
under terms agreeable to VA or Treasury, and;
(iii) To a hearing in accordance with 31 CFR 285.11(f) and paragraph
(c) of this section concerning the existence or amount of the debt or
the terms of the proposed repayment schedule under the garnishment
order. However, the debtor is not entitled to a hearing concerning the
terms of the proposed repayment schedule if these terms have been
established by written agreement under paragraph (b)(3)(ii) of this
section.
(c) Any hearing conducted as part of the administrative wage
garnishment process shall be conducted by the designated hearing
official in accordance with the procedures set forth in 31 CFR
285.11(f). This hearing official may be any VA hearing official. This
hearing official may also conduct administrative wage garnishment
hearings for other Federal agencies.
(1) The hearing may be oral or written as determined by the
designated hearing official. The hearing official shall provide the
debtor with a reasonable opportunity for an oral hearing when the
hearing official determines that the issue in dispute cannot be resolved
by review of documentary evidence, for example, when the validity of the
claim turns on the issue of credibility or veracity. The hearing
official shall establish the time and place of any oral hearing. At the
debtor's option, an oral hearing may be conducted either in person or by
telephone conference call. A hearing is not required to be a formal,
evidentiary-type hearing, but witnesses who testify in oral hearings
must do so under oath or affirmation. While it is not necessary to
produce a transcript of the hearing, the hearing official must maintain
a summary record of the proceedings. All travel expenses incurred by the
debtor in connection with an in-person hearing shall be borne by the
debtor. VA or Treasury shall be responsible for all telephone expenses.
In the absence of good cause shown, a debtor who fails to appear at a
hearing will be deemed as not having timely filed a request for a
hearing.
(2) If the hearing official determines that an oral hearing is not
necessary, then he/she shall afford the debtor a ``paper hearing.'' In a
``paper hearing,'' the hearing official will decide the issues in
dispute based upon a review of the written record.
(3) If the debtor's written request for a hearing is received by
either VA or Treasury within 15 business days following the mailing of
the notice described in paragraph (b) of this section, then VA or
Treasury shall not issue a
[[Page 115]]
withholding order as described in paragraph (d) of this section until
the debtor is afforded the requested hearing and a decision rendered. If
the debtor's written request for a hearing is not received within 15
business days following the mailing of the notice described in paragraph
(b) of this section, then the hearing official shall provide a hearing
to the debtor, but will not delay issuance of a withholding order as
described in paragraph (d) of this section, unless the hearing official
determines that the delay in filing was caused by factors beyond the
debtor's control.
(4) The hearing official shall notify the debtor of:
(i) The date and time of a telephone conference hearing;
(ii) The date, time, and location of an in-person oral hearing, or;
(iii) The deadline for the submission of evidence for a written
hearing.
(5) Except as provided in paragraph (c)(6)of this section, VA or
Treasury shall have the burden of going forward to prove the existence
or amount of the debt, after which the debtor must show, by a
preponderance of the evidence, that no debt exists or that the amount of
the debt is incorrect. In general, this means that the debtor must show
that it is more likely than not that a debt does not exist or that the
amount of the debt is incorrect. The debtor may also present evidence
that terms of the repayment agreement are unlawful, would cause a
financial hardship, or that collection of the debt may not be pursued
due to operation of law.
(6) If the debtor has previously contested the existence and/or
amount of the debt in accordance with Sec. 1.911(c)(1) or
Sec. 1.911a(c)(1) and VA subsequently rendered a decision upholding the
existence or amount of the debt, then such decision shall be
incorporated by reference and become the basis of the hearing official's
decision on such matters.
(7) The hearing official shall issue a written decision as soon as
practicable, but not later than 60 days after the date on which the
request for such hearing was received by VA or Treasury. The decision
will be the final action for the purposes of judicial review under the
Administrative Procedure Act (5 U.S.C. 701 et seq.). The decision shall
include:
(i) A summary of the facts presented;
(ii) The hearing official's findings, analysis, and conclusions,
and;
(iii) The terms of the repayment schedule, if applicable.
(d) In accordance with 31 CFR 285.11(g) and (h), VA or Treasury
shall send a Treasury-approved withholding order and certification form
by first class mail to the debtor's employer within 30 days after the
debtor fails to make a timely request for a hearing. If a timely request
for a hearing has been filed by the debtor, then VA or Treasury shall
send a withholding order and certification form by first class mail to
the debtor's employer within 30 days after a final decision is made to
proceed with the garnishment. The employer shall complete and return the
certification form as described in 31 CFR 285.11(h).
(e) After receipt of the garnishment order, the employer shall
withhold the amount of garnishment as described in 31 CFR 285.11(i) from
all disposable pay payable to the applicable debtor during each pay
period.
(f) A debtor whose wages are subject to a wage withholding order
under 31 CFR 285.11 may request a review, under the procedures set forth
in 31 CFR 285.11(k), of the amount garnished. A request for review shall
only be considered after garnishment has been initiated. The request
must be based on materially changed circumstances such as disability,
divorce, or catastrophic illness which result in financial hardship that
limit the debtor's ability to provide food, housing, clothing,
transportation, and medical care for himself/herself and his/her
dependents.
(Authority: 31 U.S.C. 3720D; 38 U.S.C. 501; 31 CFR 285.11)
[69 FR 62196, Oct. 25, 2004, as amended at 72 FR 65462, Nov. 21, 2007]
Sec. 1.924 Suspension or revocation of eligibility for federal loans,
loan insurance, loan guarantees, licenses, permits, or privileges.
(a) In accordance with 31 U.S.C. 3720B and the procedures set forth
in 31 CFR 285.13 and Sec. 901.6, a person owing an outstanding non-tax
debt that is in delinquent status shall not be eligible for
[[Page 116]]
Federal financial assistance unless exempted under paragraph (d) of this
section or waived under paragraph (e) of this section.
(b) Federal financial assistance or financial assistance means any
Federal loan (other than a disaster loan), loan insurance, or loan
guarantee.
(c) For the purposes of this section only, a debt is in a delinquent
status if the debt has not been paid within 90 days of the payment due
date or by the end of any grace period provided by statute, regulation,
contract, or agreement. The payment due date is the date specified in
the initial written demand for payment. Further guidance concerning the
delinquent status of a debt may be found at 31 CFR 285.13(d).
(d) Upon the written request and recommendation of the Secretary of
Veterans Affairs, the Secretary of the Treasury may grant exemptions
from the provisions of this section. The standards for exemptions
granted for classes of debts are set forth in 31 CFR 285.13(f).
(e)(1) VA's Chief Financial Officer or Deputy Chief Financial
Officer may waive the provisions of paragraph (a) of this section only
on a person-by-person basis.
(2) The Chief Financial Officer or Deputy Chief Financial Officer
should balance the following factors when deciding whether to grant a
waiver:
(i) Whether the denial of the financial assistance to the person
would tend to interfere substantially with or defeat the purposes of the
financial assistance program or otherwise would not be in the best
interests of the Federal government; and
(ii) Whether the granting of the financial assistance to the person
is contrary to the government's goal of reducing losses by requiring
proper screening of potential borrowers.
(3) When balancing the factors described in paragraph (e)(2)(i) and
(e)(2)(ii) of this section, the Chief Financial Officer or Deputy Chief
Financial Officer should consider:
(i) The age, amount, and cause(s) of the delinquency and the
likelihood that the person will resolve the delinquent debt; and
(ii) The amount of the total debt, delinquent or otherwise, owed by
the person and the person's credit history with respect to repayment of
debt.
(4) A centralized record shall be retained of the number and type of
waivers granted under this section.
(f) In non-bankruptcy cases, in seeking the collection of statutory
penalties, forfeitures, or other similar types of claims, VA may suspend
or revoke any license, permit, or other privilege granted a debtor when
the debtor inexcusably or willfully fails to pay such a debt. The debtor
should be advised in VA's written demand for payment of VA's ability to
suspend or revoke licenses, permits, or privileges. VA may suspend or
disqualify any lender, contractor, or broker who is engaged in making,
guaranteeing, insuring, acquiring, or participating in loans from doing
further business with VA or engaging in programs sponsored by VA if such
lender, contractor, or broker fails to pay its debts to the Government
within a reasonable time, or if such lender, contractor, or broker has
been suspended, debarred, or disqualified from participation in a
program or activity by another Federal agency. The failure of any surety
to honor its obligations in accordance with 31 U.S.C. 9305 should be
reported to Treasury.
(g) In bankruptcy cases, before advising the debtor of the intention
to suspend or revoke licenses, permits, or privileges, VA should seek
legal advice from VA's General Counsel or Regional Counsel concerning
the impact of the Bankruptcy Code, particularly 11 U.S.C. 362 and 525,
which may restrict such action.
(Authority: 31 U.S.C. 3720B; 38 U.S.C. 501)
[69 FR 62197, Oct. 25, 2004]
Sec. 1.929 Reduction of debt through performance of work-study
services.
(a) Scope. (1) Subject to the provisions of this section VA may
allow an individual to reduce an indebtedness to the United States
through offset of benefits to which the individual becomes entitled by
performance of work-study services under 38 U.S.C. 3485 and 3537 when
the debt arose by virtue of the individual's participation in a benefits
program provided under any of the following:
[[Page 117]]
(i) 38 U.S.C. chapter 30;
(ii) 38 U.S.C. chapter 31;
(iii) 38 U.S.C. chapter 32;
(iv) 38 U.S.C. chapter 34;
(v) 38 U.S.C. chapter 35;
(vi) 38 U.S.C. chapter 36 (other than an education loan provided
under subpart F, part 21 of this title); or
(vii) 10 U.S.C. chapter 1606 (other than an indebtedness arising
from a refund penalty imposed under 10 U.S.C. 16135).
(2) This section shall not apply in any case in which the individual
has a pending request for waiver of the debt under Secs. 1.950 through
1.970.
(Authority: 38 U.S.C. 3485(e)(1); Pub. L. 102-16)
(b) Selection criteria. (1) If there are more candidates for a work-
study allowance than there are work-study positions available in the
area in which the services are to be performed, VA will give priority to
the candidates who are pursuing a program of education or
rehabilitation.
(2) Only after all candidates in the area described in paragraph
(b)(1) of this section either have been given work-study contracts or
have withdrawn their request for contracts will VA offer contracts to
those who are not pursuing a program of education or rehabilitation and
who wish to reduce their indebtedness through performance of work-study
services.
(3) VA shall not offer a contract to an individual who is receiving
compensation from another source for the work-study services the
individual wishes to perform.
(4) VA shall not offer a contract to an individual if VA determines
that the debt can be collected through other means such as collection in
a lump sum, collection in installments as provided in Sec. 1.917 or
compromise as provided in Sec. 1.918.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
(c) Utilization. The work-study services to be performed under a
debt-liquidation contract will be limited as follows:
(1) If the individual is concurrently receiving educational
assistance in a program administered by VA, work-study services are
limited to those allowed in the educational program under which the
individual is receiving benefits.
(2) If the individual is not concurrently receiving educational
assistance in a program administered by VA, the individual may perform
only those work-study services and activities which are or were open to
those students receiving a work-study allowance while pursuing a program
of education pursuant to the chapter under which the debt was incurred.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
(d) Contract to perform services. (1) The work-study services
performed to reduce indebtedness shall be performed pursuant to a
contract between the individual and VA.
(2) The individual shall perform the work-study services required by
the contract at the place or places designated by VA.
(3) The number of hours of services to be performed under the
contract must be sufficient to enable the individual to become entitled
to a sum large enough to liquidate the debt by offset.
(4) The number of weeks in the contract will not exceed the lesser
of--
(i) The number of weeks of services the individual needs to perform
to liquidate his or her debt; or
(ii) 52.
(5) In determining the number of hours per week and the number of
weeks under paragraphs (d)(3) and (d)(4) of this section necessary to
liquidate the debt, VA will use the amount of the account receivable,
including all accrued interest, administrative costs and marshall fees
outstanding on the date the contract is offered to the individual and
all accrued interest, administrative costs and marshall fees VA
estimates will have become outstanding on the debt on the date the debt
is to be liquidated.
(6) The contract will automatically terminate after the total amount
of the individual's indebtedness described in paragraph (d)(5) of this
section has been recouped, waived, or otherwise liquidated. An
individual performing work-study services under a contract to liquidate
a debt is released from the contract if the debt is liquidated by other
means.
[[Page 118]]
(7) The contract to perform work-study services for the purpose of
liquidating indebtedness will be terminated if:
(i) The individual is liquidating his or her debt under this section
while receiving either an educational assistance allowance for further
pursuit of a program of education or a subsistence allowance for further
pursuit of a program of rehabilitation;
(ii) The individual terminates or reduces the rate of pursuit of his
or her program of education or rehabilitation; and
(iii) The termination or reduction causes an account receivable as a
debt owed by the individual.
(8) VA may terminate the contract at any time the individual fails
to perform the services required by the contract in a satisfactory
manner.
(Authority: 38 U.S.C. 3485(e), 7104(a); Pub. L. 102-16)
(e) Reduction of indebtedness. (1) In return for the individual's
agreement to perform hours of services totaling not more than 40 times
the number of weeks in the contract, VA will reduce the eligible
person's outstanding indebtedness by an amount equal to the higher of--
(i) The hourly minimum wage in effect under section 6(a) of the Fair
Labor Standards Act of 1938 times the number of hours the individual
works; or
(ii) The hourly minimum wage under comparable law of the State in
which the services are performed times the number of hours the
individual works.
(2) VA will reduce the individual's debt by the amount of the money
earned for the performance of work-study services after the completion
of each 50 hours of services (or in the case of any remaining hours
required by the contract, the amount for those hours).
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
(f) Suspension of collections by offset. Notwithstanding the
provisions of Sec. 1.912a, during the period covered by the work-study
debt-liquidation contract with the individual, VA will ordinarily
suspend the collection by offset of a debt described in paragraph (a)(1)
of this section. However, the individual may voluntarily permit VA to
collect part of the debt through offset against other benefits payable
while the individual is performing work-study services. If the contract
is terminated before its scheduled completion date, and the debt has not
been liquidated, collection through offset against other benefits
payable will resume on the date the contract terminates.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
(g) Payment for additional hours. (1) If an individual, without
fault on his or her part, performs work-study services for which payment
may not be authorized, including services performed after termination of
the contract, VA will pay the individual at the applicable hourly
minimum wage for such services as the Director of the VA field station
of jurisdiction determines were satisfactorily performed.
(2) The Director of the VA field station of jurisdiction shall
determine whether the individual was without fault. In making this
decision he or she shall consider all evidence of record and any
additional evidence which the individual wishes to submit.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
[62 FR 15401, Apr. 1, 1997]
Standards for Compromise of Claims
Authority: Sections 1.900 through 1.953 are issued under the
authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, and as noted
in specific sections.
Source: 32 FR 2614, Feb. 8, 1967, unless otherwise noted.
Sec. 1.930 Scope and application.
(a) The standards set forth in Secs. 1.930 through 1.936 of this
part apply to the compromise of debts pursuant to 31 U.S.C. 3711. VA may
exercise such compromise authority when the amount of the debt due,
exclusive of interest, penalties, and administrative costs, does not
exceed $100,000 or any higher amount authorized by the Attorney General.
(b) Unless otherwise provided by law, when the principal balance of
a debt, exclusive of interest, penalties, and administrative costs,
exceeds $100,000 or any higher amount authorized by the
[[Page 119]]
Attorney General, the authority to accept the compromise rests with the
Department of Justice (DOJ). If VA receives an offer to compromise any
debt in excess of $100,000, VA should evaluate the compromise offer
using the same factors as set forth in Sec. 1.931 of this part. If VA
believes the offer has merit, it shall refer the debt to the Civil
Division or other appropriate division in DOJ using a Claims Collection
Litigation Report (CCLR). The referral shall include appropriate
financial information and a recommendation for the acceptance of the
compromise offer. DOJ approval is not required if VA decides to reject a
compromise offer.
(c) The $100,000 limit in paragraph (b) of this section does not
apply to debts that arise out of participation in a VA loan program
under Chapter 37 of Title 38 of the U.S. Code. VA has unlimited
authority to compromise debts arising out of participation in a Chapter
37 loan program, regardless of the amount of the debt.
(Authority: 31 U.S.C. 3711; 38 U.S.C 501, 3720)
[69 FR 62198, Oct. 25, 2004]
Sec. 1.931 Bases for compromise.
(a) VA may compromise a debt if it cannot collect the full amount
because:
(1) The debtor is unable to pay the full amount in a reasonable
time, as verified through credit reports or other financial information;
(2) VA is unable to collect the debt in full within a reasonable
time by enforced collection proceedings;
(3) The cost of collecting the debt does not justify the enforced
collection of the full amount; or
(4) There is significant doubt concerning VA's ability to prove its
case in court.
(b) In determining the debtor's inability to pay, VA will consider
relevant factors such as the following:
(1) Age and health of the debtor;
(2) Present and potential income;
(3) Inheritance prospects;
(4) The possibility that assets have been concealed or improperly
transferred by the debtor; and
(5) The availability of assets or income that may be realized by
enforced collection proceedings.
(c) VA will verify the debtor's claim of inability to pay by using a
credit report and other financial information as provided in paragraph
(g) of this section. VA should consider the applicable exemptions
available to the debtor under State and Federal law in determining the
ability to enforce collection. VA also may consider uncertainty as to
the price that collateral or other property will bring at a forced sale
in determining the ability to enforce collection. A compromise effected
under this section should be for an amount that bears a reasonable
relation to the amount that can be recovered by enforced collection
procedures, with regard to the exemptions available to the debtor and
the time that collection will take.
(d) If there is significant doubt concerning VA's ability to prove
its case in court for the full amount claimed, either because of the
legal issues involved or because of a bona fide dispute as to the facts,
then the amount accepted in compromise of such cases should fairly
reflect the probabilities of successful prosecution to judgment, with
due regard given to the availability of witnesses and other evidentiary
support for VA's claim. In determining the risks involved in litigation,
VA will consider the probable amount of court costs and attorney fees
pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412, that may be
imposed against the Government if it is unsuccessful in litigation.
(e) VA may compromise a debt if the cost of collecting the debt does
not justify the enforced collection of the full amount. The amount
accepted in compromise in such cases may reflect an appropriate discount
for the administrative and litigative costs of collection, with
consideration given to the time it will take to effect collection.
Collection costs may be a substantial factor in the settlement of small
debts. In determining whether the cost of collecting justifies enforced
collection of the full amount, VA will consider whether continued
collection of the debt, regardless of cost, is necessary to further an
enforcement principle.
(f) VA generally will not accept compromises payable in
installments. If, however, payment of a compromise in
[[Page 120]]
installments is necessary, VA will obtain a legally enforceable written
agreement providing that, in the event of default, the full original
principal balance of the debt prior to compromise, less sums paid
thereon, is reinstated. Whenever possible, VA will also obtain security
for repayment.
(g) To assess the merits of a compromise offer based in whole or in
part on the debtor's inability to pay the full amount of a debt within a
reasonable time, VA will obtain a current financial statement from the
debtor showing the debtor's assets, liabilities, income, and expenses.
Agencies also may obtain credit reports or other financial information
to assess compromise offers.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720)
[69 FR 62198, Oct. 25, 2004]
Sec. 1.932 Enforcement policy.
VA may compromise statutory penalties, forfeitures, or claims
established as an aid to enforcement and to compel compliance, if VA's
enforcement policy in terms of deterrence and securing compliance,
present and future, will be adequately served by VA's acceptance of the
sum to be agreed upon.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720)
[69 FR 62198, Oct. 25, 2004]
Sec. 1.933 Joint and several liability.
(a) When two or more debtors are jointly and severally liable, VA
will pursue collection activity against all debtors, as appropriate. VA
will not attempt to allocate the burden of payment between the debtors
but should proceed to liquidate the indebtedness as quickly as possible.
(b) VA will ensure that a compromise agreement with one debtor does
not release VA's claim against the remaining debtors. The amount of a
compromise with one debtor shall not be considered a precedent or
binding in determining the amount that will be required from other
debtors jointly and severally liable on the claim.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720)
[69 FR 62198, Oct. 25, 2004]
Sec. 1.934 Further review of compromise offers.
If VA is uncertain whether to accept a firm, written, substantive
compromise offer on a debt that is within its delegated compromise
authority, it may refer the offer to VA General Counsel or Regional
Counsel or to the Civil Division or other appropriate division in the
Department of Justice (DOJ), using a Claims Collection Litigation Report
(CCLR) accompanied by supporting data and particulars concerning the
debt. DOJ may act upon such an offer or return it to the agency with
instructions or advice.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720)
[69 FR 62198, Oct. 25, 2004]
Sec. 1.935 Consideration of tax consequences to the Government.
In negotiating a compromise, VA will consider the tax consequences
to the Government. In particular, VA will consider requiring a waiver of
tax-loss-carry-forward and tax-loss-carry-back rights of the debtor.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720)
[69 FR 62198, Oct. 25, 2004]
Sec. 1.936 Mutual releases of the debtor and VA.
In all appropriate instances, a compromise that is accepted by VA
shall be implemented by means of a mutual release, in which the debtor
is released from further non-tax liability on the compromised debt in
consideration of payment in full of the compromise amount, and VA and
its officials, past and present, are released and discharged from any
and all claims and causes of action that the debtor may have arising
from the same transaction. In the event a mutual release is not executed
when a debt is compromised, unless prohibited by law, the debtor is
still deemed to have waived any and all claims and causes of action
against VA and its officials related to the transaction giving rise to
the compromised debt.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720)
[69 FR 62198, Oct. 25, 2004]
[[Page 121]]
Standards for Suspending or Terminating Collection Action
Authority: Sections 1.900 through 1.953 are issued under the
authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, and as noted
in specific sections.
Source: 32 FR 2615, Feb. 8, 1967, unless otherwise noted.
Sec. 1.940 Scope and application.
Except as otherwise provided in Sec. 1.945:
(a) The standards set forth in Secs. 1.940 through 1.944 apply to
the suspension or termination of collection activity pursuant to 31
U.S.C. 3711 on debts that do not exceed $100,000, or such other amount
as the Attorney General may direct, exclusive of interest, penalties,
and administrative costs, after deducting the amount of partial payments
or collections, if any. Prior to referring a debt to the Department of
Justice (DOJ) for litigation, VA may suspend or terminate collection
under this part with respect to the debt.
(b) If, after deducting the amount of any partial payments or
collections, the principal amount of a debt exceeds $100,000, or such
other amount as the Attorney General may direct, exclusive of interest,
penalties, and administrative costs, the authority to suspend or
terminate rests solely with DOJ. If VA believes that suspension or
termination of any debt in excess of $100,000 may be appropriate, it
shall refer the debt to the Civil Division or other appropriate division
in DOJ, using the Claims Collection Litigation Report (CCLR). The
referral should specify the reasons for VA's recommendation. If, prior
to referral to DOJ, VA determines that a debt is plainly erroneous or
clearly without legal merit, VA may terminate collection activity
regardless of the amount involved without obtaining DOJ concurrence.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62199, Oct. 25, 2004, as amended at 75 FR 53201, Aug. 31, 2010]
Sec. 1.941 Suspension of collection activity.
(a) VA may suspend collection activity on a debt when:
(1) It cannot locate the debtor;
(2) The debtor's financial condition is expected to improve; or
(3) The debtor has requested a waiver or review of the debt.
(b) Based on the current financial condition of the debtor, VA may
suspend collection activity on a debt when the debtor's future prospects
justify retention of the debt for periodic review and collection
activity and:
(1) The applicable statute of limitations has not expired; or
(2) Future collection can be effected by administrative offset,
notwithstanding the expiration of the applicable statute of limitations
for litigation of claims, and with due regard to the 10-year limitation
for administrative offset prescribed by 31 U.S.C. 3716(e)(1); or
(3) The debtor agrees to pay interest on the amount of the debt on
which collection will be suspended, and such suspension is likely to
enhance the debtor's ability to pay the full amount of the principal of
the debt with interest at a later date.
(c) Collection action may also be suspended, in accordance with
Secs. 1.911, 1.911a, 1.912, and 1.912a, pending VA action on requests
for administrative review of the existence or amount of the debt or a
request for waiver of collection of the debt. However, collection action
will be resumed once VA issues an initial decision on the administrative
review or waiver request.
(d) When VA learns that a bankruptcy petition has been filed with
respect to a debtor, in most cases the collection activity on a debt
must be suspended, pursuant to the provisions of 11 U.S.C. 362, 1201,
and 1301, unless VA can clearly establish that the automatic stay does
not apply, has been lifted, or is no longer in effect. VA shall seek
legal advice immediately from either the VA General Counsel or Regional
Counsel and, if legally permitted, take the necessary steps to ensure
that no funds or money are paid by VA to the debtor until relief from
the automatic stay is obtained.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62199, Oct. 25, 2004]
[[Page 122]]
Sec. 1.942 Termination of collection activity.
Termination of collection activity involves a final determination.
Collection activity may be terminated on cases previously suspended. The
Department of Veterans Affairs may terminate collection activity and
consider closing the agency file on a claim which meets any one of the
following standards:
(a) Inability to collect any substantial amount. Collection action
may be terminated on a claim when it becomes clear that VA cannot
collect or enforce collection of any significant amount from the debtor,
having due regard for the judicial remedies available to the agency, the
debtor's future financial prospects, and the exemptions available to the
debtor under State and Federal law. In determining the debtor's
inability to pay, the following factors, among others, shall be
considered: Age and health of the debtor, present and potential income,
inheritance prospects, the possibility that assets have been concealed
or improperly transferred by the debtor, the availability of assets or
income which may be realized by means of enforced collection
proceedings.
(b) Inability to locate debtor. The debtor cannot be located, no
security remains to be liquidated, the applicable statute of limitations
has run, and the prospects of collecting by offset are too remote.
(c) Death of debtor. The debtor is determined to be deceased and the
Government has no prospect of collection from his/her estate.
(d) Cost will exceed recovery. The cost of further collection effort
is likely to exceed the amount recoverable.
(e) Claim legally without merit. Collection action should be
terminated on a claim whenever it is determined that the claim is
legally without merit.
(f) Claim cannot be substantiated by evidence. VA will terminate
collection action on once asserted claims because of lack of evidence or
unavailability of witnesses only in cases where efforts to induce
voluntary payment are unsuccessful.
(g) Discharge in bankruptcy. Generally, VA shall terminate
collection activity on a debt that has been discharged in bankruptcy,
regardless of the amount. VA may continue collection activity, subject
to the provisions of the Bankruptcy Code, for any payments provided
under a plan of reorganization. Offset and recoupment rights may survive
the discharge of the debtor in bankruptcy and, under some circumstances,
claims also may survive the discharge.
(h) Before terminating collection activity, VA should have pursued
all appropriate means of collection and determined, based upon the
results of the collection activity, that the debt is uncollectible.
Termination of collection activity ceases active collection of the debt.
The termination of collection activity does not preclude VA from
retaining a record of the account for purposes of:
(1) Selling the debt, if the Secretary of the Treasury determines
that such sale is in the best interests of the United States;
(2) Pursuing collection at a subsequent date in the event there is a
change in the debtor's status or a new collection tool becomes
available;
(3) Offsetting against future income or assets not available at the
time of termination of collection activity; or
(4) Screening future applicants for prior indebtedness.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[32 FR 2615, Feb. 8, 1967, as amended at 52 FR 42111, Nov. 3, 1987; 69
FR 62200, Oct. 25, 2004]
Sec. 1.943 Exception to termination.
When a significant enforcement policy is involved, or recovery of a
judgment is a prerequisite to the imposition of administrative
sanctions, VA may refer debts for litigation even though termination of
collection activity may otherwise be appropriate.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62200, Oct. 25, 2004]
Sec. 1.944 Discharge of indebtedness; reporting requirements.
(a) Before discharging a delinquent debt (also referred to as a
close out of the debt), VA shall take all appropriate steps to collect
the debt in accordance
[[Page 123]]
with 31 U.S.C. 3711(g), including, as applicable, administrative offset,
tax refund offset, Federal salary offset, referral to Treasury or
Treasury-designated debt collection centers or private collection
contractors, credit bureau reporting, wage garnishment, litigation, and
foreclosure. Discharge of indebtedness is distinct from termination or
suspension of collection activity under Secs. 1.940 through 1.943 and is
governed by the Internal Revenue Code (see 26 U.S.C. 6050P). When
collection action on a debt is suspended or terminated, the debt remains
delinquent and further collection action may be pursued at a later date
in accordance with the standards set forth in Secs. 1.900 through 1.953.
When VA discharges a debt in full or in part, further collection action
is prohibited. Therefore, VA should make the determination that
collection action is no longer warranted before discharging a debt.
Before discharging a debt, VA must terminate debt collection action.
(b) Upon discharge of an indebtedness, VA must report the discharge
to the Internal Revenue Service (IRS) in accordance with the
requirements of 26 U.S.C. 6050P and 26 CFR 1.6050P-1. VA may request
Treasury or Treasury-designated debt collection centers to file such a
discharge report to the IRS on VA's behalf.
(c) When discharging a debt, VA must request that any liens of
record securing the debt be released.
(d) 31 U.S.C. 3711(i)(2) requires agencies to sell a delinquent
nontax debt upon termination of collection action if the Secretary of
the Treasury determines such a sale is in the best interests of the
United States. Since the discharge of a debt precludes any further
collection action (including the sale of a delinquent debt), VA may not
discharge a debt until the requirements of Sec. 3711(i)(2) have been
met.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62200, Oct. 25, 2004]
Sec. 1.945 Authority to suspend or terminate collection action
on certain benefit indebtedness; authority for refunds.
(a) The Secretary of Veterans Affairs (Secretary) may suspend or
terminate collection action on all or any part of an indebtedness owed
to VA by a member of the Armed Forces who dies while on active duty, if
the Secretary determines that such suspension or termination of
collection is appropriate and in the best interest of the United States.
(b) The Secretary may terminate collection action on all or any part
of an amount owed to the United States for an indebtedness resulting
from an individual's participation in a benefits program administered by
the Secretary, other than a program as described in paragraph (h) of
this section, if the Secretary determines that such termination of
collection is in the best interest of the United States. For purposes of
this paragraph, an individual is any member of the Armed Forces or
veteran who dies as a result of an injury incurred or aggravated in the
line of duty while serving in a theater of combat operations in a war or
in combat against a hostile force during a period of hostilities on or
after September 11, 2001.
(c) For purposes of this section:
(1) Theater of combat operations means the geographic area of
operations where the Secretary in consultation with the Secretary of
Defense determines that combat occurred.
(2) Period of hostilities means an armed conflict in which members
of the United States Armed Forces are subjected to danger comparable to
danger to which members of the Armed Forces have been subjected in
combat with enemy armed forces during a period of war, as determined by
the Secretary in consultation with the Secretary of Defense.
(d) The Secretary may refund amounts collected after the death of a
member of the Armed Forces or veteran in accordance with this paragraph
and paragraph (e) of this section.
(1) In any case where all or any part of a debt of a member of the
Armed Forces, as described under paragraph (a) of this section, was
collected, the Secretary may refund the amount collected if, in the
Secretary's determination, the indebtedness would have been suspended or
terminated under authority of 31 U.S.C. 3711(f). The member of the Armed
Services must have been
[[Page 124]]
serving on active duty on or after September 11, 2001. In any case where
all or any part of a debt of a covered member of the Armed Forces was
collected, the Secretary may refund the amount collected, but only if
the Secretary determines that, under the circumstances applicable with
respect to the deceased member of the Armed Forces, it is appropriate to
do so.
(2) In any case where all or any part of a debt of a covered member
of the Armed Forces or veteran, as described under paragraph (b) of this
section, was collected on or after September 11, 2001, the Secretary may
refund the amount collected if, in the Secretary's determination, the
indebtedness would have been terminated under authority of 38 U.S.C.
5302A. In addition, the Secretary may refund the amount only if he or
she determines that the deceased individual is equitably entitled to the
refund.
(e) Refunds under paragraph (d) of this section will be made to the
estate of the decedent or, in its absence, to the decedent's next-of-kin
in the order listed below.
(1) The decedent's spouse.
(2) The decedent's children (in equal shares).
(3) The decedent's parents (in equal shares).
(f) The authority exercised by the Secretary to suspend or terminate
collection action and/or refund amounts collected on certain
indebtedness is reserved to the Secretary and will not be delegated.
(g) Requests for a determination to suspend or terminate collection
action and/or refund amounts previously collected as described in this
section will be submitted to the Office of the Secretary through the
Office of the General Counsel. Such requests for suspension or
termination and/or refund may be initiated by the head of the VA
administration having responsibility for the program that gave rise to
the indebtedness, or any concerned staff office, or by the Chairman of
the Board of Veterans' Appeals. When a recommendation for refund under
this section is initiated by the head of a staff office, or by the
Chairman, Board of Veterans' Appeals, the views of the head of the
administration that administers the program that gave rise to the
indebtedness will be obtained and transmitted with the recommendation of
the initiating office.
(h) The provisions of this section concerning suspension or
termination of collection actions and the refunding of moneys previously
collected do not apply to any amounts owed the United States under any
program carried out under 38 U.S.C. chapter 37.
(Authority: 38 U.S.C. 501, 5302A; 31 U.S.C. 3711(f)).
[75 FR 53201, Aug. 31, 2010]
Referrals to GAO, Department of Justice, or IRS
Authority: Sections 1.900 through 1.953 are issued under the
authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, and as noted
in specific sections.
Source: 52 FR 42111, 42112, Nov. 3, 1987, unless otherwise noted.
Sec. 1.950 Prompt referral.
(a) VA shall promptly refer debts to Department of Justice (DOJ) for
litigation where aggressive collection activity has been taken in
accordance with Secs. 1.900 through 1.953, and such debts cannot be
compromised, or on which collection activity cannot be suspended or
terminated, in accordance with Secs. 1.930 through 1.936 and Secs. 1.940
through 1.944. Debts for which the principal amount is over $1,000,000,
or such other amount as the Attorney General may direct, exclusive of
interest and other late payment charges, shall be referred to the Civil
Division or other division responsible for litigating such debts at DOJ.
Debts for which the principal amount is $1,000,000, or less, or such
other amount as the Attorney General may direct, exclusive of interest
or penalties, shall be referred to DOJ's Nationwide Central Intake
Facility as required by the Claims Collection Litigation Report (CCLR)
instructions. Debts should be referred as early as possible, consistent
with aggressive agency collection activity and the observance of the
standards contained in Secs. 1.900 through 1.953, and, in any event,
well within the period for initiating timely lawsuits against the
debtors. VA shall make every effort to refer delinquent debts to DOJ for
litigation
[[Page 125]]
within 1 year of the date such debts last became delinquent. In the case
of guaranteed or insured loans, VA should make every effort to refer
these delinquent debts to DOJ for litigation within 1 year from the date
the loan was presented to VA for payment or reinsurance.
(b) DOJ has exclusive jurisdiction over the debts referred to it
pursuant to this section. VA shall immediately terminate the use of any
administrative collection activities to collect a debt at the time of
the referral of that debt to DOJ. VA should advise DOJ of the collection
activities that have been utilized to date, and their result. VA shall
refrain from having any contact with the debtor and shall direct all
debtor inquiries concerning the debt to DOJ. VA shall immediately notify
DOJ of any payments credited to the debtor's account after referral of a
debt under this section. DOJ shall notify VA, in a timely manner, of any
payments it receives from the debtor.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62200, Oct. 25, 2004]
Sec. 1.951 Claims Collection Litigation Report (CCLR).
(a) Unless excepted by the Department of Justice (DOJ), VA shall
complete the CCLR, accompanied by a signed Certificate of Indebtedness,
to refer all administratively uncollectible claims to DOJ for
litigation. VA shall complete all of the sections of the CCLR
appropriate to each claim as required by the CCLR instructions and
furnish such other information as may be required in specific cases.
(b) VA shall indicate clearly on the CCLR the actions it wishes DOJ
to take with respect to the referred claim.
(c) VA shall also use the CCLR to refer claims to DOJ to obtain
approval of any proposals to compromise the claims or to suspend or
terminate agency collection activity.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62200, Oct. 25, 2004]
Sec. 1.952 Preservation of evidence.
VA must take care to preserve all files and records that may be
needed by the Department of Justice (DOJ) to prove its claims in court.
VA ordinarily should include certified copies of the documents that form
the basis for the claim when referring such claims to DOJ for
litigation. VA shall provide originals of such documents immediately
upon request by DOJ.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62200, Oct. 25, 2004]
Sec. 1.953 Minimum amount of referrals to the Department of Justice.
(a) Except as otherwise provided in paragraphs (b) and (c) of this
section, VA shall not refer for litigation claims of less than $2,500,
exclusive of interest, penalties, and administrative costs, or such
other minimum amount as the Attorney General shall from time to time
prescribe. The Department of Justice (DOJ) shall promptly notify
referring agencies if the Attorney General changes this minimum amount.
(b) VA shall not refer claims of less than the minimum amount
prescribed by the Attorney General unless:
(1) Litigation to collect such smaller claims is important to ensure
compliance with VA's policies or programs;
(2) The claim is being referred solely for the purpose of securing a
judgment against the debtor, which will be filed as a lien against the
debtor's property pursuant to 28 U.S.C. 3201 and returned to VA for
enforcement; or
(3) The debtor has the clear ability to pay the claim and the
Government effectively can enforce payment, with due regard for the
exemptions available to the debtor under State and Federal law and the
judicial remedies available to the Government.
(c) VA should consult with the Financial Litigation Staff of the
Executive Office for United States Attorneys, in DOJ, prior to referring
claims valued at less than the minimum amount.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62200, Oct. 25, 2004]
Sec. 1.955 Regional office Committees on Waivers and Compromises.
(a) Delegation of authority and establishment. (1) Sections 1.955 et
seq. are issued to implement the authority for waiver consideration
found in 38 U.S.C. 5302 and 5 U.S.C. 5584 and the compromise authority
found 38 U.S.C. 3720(a) and 31 U.S.C. 3711. The duties,
[[Page 126]]
delegations of authority, and all actions required of the Committees on
Waivers and Compromises are to be accomplished under the direction of,
and authority vested in, the Director of the regional office.
Delegations of authority and limitations for waiver actions under 5
U.S.C. 5584 are set forth in Sec. 1.963a of this part.
(2) There is established in each regional office, a Committee on
Waivers and Compromises to perform the duties and assume the
responsibilities delegated by Secs. 1.956 and 1.957. The term regional
office, as used in Sec. 1.955 et seq., includes VA Medical and Regional
Office Centers and VA Centers where such are established.
(b) Selection. The Director shall designate the employees to serve
as Chairperson, members, and alternates. Except upon specific
authorization of the Under Secretary for Benefits, when workload
warrants a full-time committee, such designation will be part-time
additional duty upon call of the Chairperson.
(c) Control and staff. The administrative control of each Committee
on Waivers and Compromises is the responsibility of the station's Fiscal
Officer. However, the station Director has the authority to reassign the
administrative control function to another station activity, rather than
the Fiscal Officer, whenever the Director determines that such
reassignment is appropriate. The quality control of the professional and
clerical staff of the Committee is the responsibility of the
Chairperson.
(d) Overall control. The Assistant Secretary for Management is
delegated complete management authority, including planning, policy
formulation, control, coordination, supervision, and evaluation of
Committee operations.
(e) Committee composition. (1) The Committee shall consist of a
Chairperson and Alternate Chairperson and as many Committee members and
alternate members as the Director may appoint. Members and alternates
shall be selected so that in each of the debt claim areas (i.e.,
compensation, pension, education, insurance, loan guaranty, etc.) there
are members and alternates with special competence and familiarity with
the program area.
(2) When a claim is properly referred to the Committee for either
waiver consideration or the consideration of a compromise offer, the
Chairperson shall designate a panel from the available Committee members
to consider the waiver request or compromise offer. If the debt for
which the waiver request or compromise offer is made is $20,000 or less
(exclusive or interest and administrative costs), the Chairperson will
assign one Committee member as the panel. This one Committee member
should have experience in the program area where the debt is located.
The single panel member's decision shall stand as the decision of the
Committee. If the debt for which the waiver request or compromise offer
is made is more than $20,000 (exclusive of interest and administrative
costs), the Chairperson shall assign two Committee members. One of the
two members should be knowledgeable in the program area where the debt
arose. If the two member panel cannot reach a unanimous decision, the
Chairperson shall assign a third member of the Committee to the panel,
or assign the case to three new members, and the majority vote shall
determine the Committee decision.
(3) The assignment of a one or two member panel as described in
paragraph (e)(2) of this section is applicable if the debtor files a
Notice of Disagreement with a Committee decision to deny waiver. That
is, if the Notice of Disagreement is filed with a decision by a one
member panel to deny waiver of collection of a debt of $20,000 or less,
then the Notice of Disagreement should also be assigned to one panel
member. Likewise, a Notice of Disagreement filed with a decision by a
two or three member panel to deny waiver of collection of a debt of more
than $20,000 should also be assigned to a Committee panel of two members
(three if these two members cannot agree). However, a Chairperson must
assign the Notice of Disagreement to a different one, two, or three
member panel than the panel that made the original Committee decision
that is
[[Page 127]]
now the subject of the Notice of Disagreement.
(Authority: 5 U.S.C. 5584, 31 U.S.C. 3711, 38 U.S.C. 3720(a), 5302)
[44 FR 59905, Oct. 17, 1979, as amended at 48 FR 1056, Jan. 10, 1983; 54
FR 40871, Oct. 4, 1989; 57 FR 47264, Oct. 15, 1992; 60 FR 53276, Oct.
13, 1995; 69 FR 62201, Oct. 25, 2004]
Sec. 1.956 Jurisdiction.
(a) The regional office Committees are authorized, except as to
determinations under Sec. 2.6(e)(4)(i) of this chapter where applicable,
to consider and determine as limited in Secs. 1.955 et seq., settlement,
compromise and/or waiver concerning the following debts and
overpayments:
(1) Arising out of operations of the Veterans Benefits
Administration:
(i) Overpayment or erroneous payments of pension, compensation,
dependency and indemnity compensation, burial allowances, plot
allowance, subsistence allowance, education (includes debts from work
study and education loan defaults as well as from other overpayments of
educational assistance benefits) or insurance benefits, clothing
allowance and automobile or other conveyance and adaptive equipment
allowances.
(ii) Debts arising out of the loan program under 38 U.S.C. ch. 37
after liquidation of security, if any.
(iii) Such other debts as may be specifically designated by the
Under Secretary for Benefits.
(2) Arising out of operations of the Veterans Health Services and
Research Administration:
(i) Debts resulting from services furnished in error (Sec. 17.101(a)
of this chapter).
(ii) Debts resulting from services furnished in a medical emergency
(Sec. 17.101(b) of this chapter).
(iii) Other claims arising in connection with transactions of the
Veterans Health Administration (Sec. 17.103(c) of this chapter).
(iv) The Chief Financial Officer of the Consolidated Patient Account
Center is authorized to waive veterans' debts arising from medical care
copayments (Sec. 17.105(c) of this chapter).
(3) Claims for erroneous payments of pay and allowances, and
erroneous payments of travel, transportation, and relocation expenses
and allowances, made to or on behalf of employees (5 U.S.C. 5584).
(b) The Under Secretary for Benefits may, at his or her discretion,
assume original jurisdiction and establish an ad hoc Board to determine
a particular issue arising within this section.
(Authority: 38 U.S.C. 501)
[39 FR 26400, July 19, 1974, as amended at 44 FR 59905, Oct. 17, 1979;
60 FR 53276, Oct. 13, 1995; 69 FR 62201, Oct. 25, 2004; 80 FR 23241,
Apr. 27, 2015]
Sec. 1.957 Committee authority.
(a) Regional office committee. On matters covered in Sec. 1.956, the
regional office Committee is authorized to determine the following
issues:
(1) Waivers. A decision may be rendered to grant or deny waiver of
collection of a debt in the following debt categories:
(i) Loan guaranty program (38 U.S.C. 5302(b)). Committees may
consider waiver of the indebtedness of a veteran or spouse resulting
from: (A) The payment of a claim under the guaranty or insurance of
loans, (B) the liquidation of direct loans, (C) the liquidation of loans
acquired under Sec. 36.4318, and (D) the liquidation of vendee accounts.
The phrase veteran or spouse includes a veteran-borrower, veteran-
transferee, a veteran-purchaser on a vendee account, a former spouse or
surviving spouse of a veteran.
(ii) Other than loan guaranty program. (38 U.S.C. 5302(a))
(iii) Services erroneously furnished (Sec. 17.101(a)).
(2) Compromises--(i) Loan program debts (38 U.S.C. 3720(a)). Accept
or reject a compromise offer irrespective of the amount of the debt
(loan program matters under 38 U.S.C. chapter 37 are unlimited as to
amount).
(ii) Other than loan program debts (31 U.S.C. 3711).
(A) Accept or reject a compromise offer on a debt which exceeds
$1,000 but which is not over $100,000 (both amounts exclusive of
interest and other late payment charges).
(B) Accept or reject a compromise offer on a debt of a $1,000 or
less, exclusive of interest and other late payment charges, which is not
disposed of by the
[[Page 128]]
Chief, Fiscal activity, pursuant to paragraph (b) of this section.
(C) Reject a compromise offer on a debt which exceeds $100,000,
exclusive of interest and other late payment charges.
(D) Recommend approval of a compromise offer on a debt which exceeds
$100,000, exclusive of interest and other late payment charges. The
authority to accept a compromise offer on such a debt rests solely
within the jurisdiction of the Department of Justice. The Committee
should evaluate a compromise offer on a debt in excess of $100,000,
using the factors set forth in Secs. 1.930 through 1.938. If the
Committee believes that the compromise offer is advantageous to the
government, then the Committee members shall so state this conclusion in
a written memorandum of recommendation of approval to the Chairperson.
This recommendation, along with a Claims Collection Litigation Report
(CCLR) completed in accordance with Sec. 1.951, will be referred to VA
Central Office, Office of Financial Management (047G7), for submission
to the Department of Justice for final approval.
(Authority: 31 U.S.C. 3711)
(b) Chief of Fiscal activity. The Chief of the Fiscal activity at
both VBA and VHA offices has the authority, as to debts within his/her
jurisdiction, to:
(1) On other than loan program debts under 38 U.S.C. chapter 37,
accept compromise offers of 50% or more of a total debt not in excess of
$1,000, exclusive of interest and other late payment charges, regardless
of whether or not there has been a prior denial of waiver.
(2) On other than loan program debts under 38 U.S.C. chapter 37,
reject any offer of compromise of a total debt not in excess of $1,000,
exclusive of interest and other late payment charges, regardless of
whether or not there has been a prior denial of waiver.
(3) On other than loan guaranty program debts under 38 U.S.C.
chapter 37, reject any offer of compromise of a total debt not in excess
of $1,000, exclusive of interest, regardless of whether or not there has
been a prior denial of waiver.
(Authority: 31 U.S.C. 3711 and 38 U.S.C. 3720(a))
[44 FR 59906, Oct. 17, 1979, as amended at 51 FR 38803, Sept. 25, 1985;
52 FR 42112, Nov. 3, 1987; 57 FR 47264, Oct. 15, 1992; 60 FR 53276, Oct.
13, 1995; 69 FR 62201, Oct. 25, 2004]
Sec. 1.958 Finality of decisions.
A decision by the regional office Committee, operating within the
scope of its authority, denying waiver of all or part of a debt arising
out of participation in a VA benefit or home loan program, is subject to
appeal in accordance with 38 CFR parts 19 and 20. A denial of waiver of
an erroneous payment of pay and allowances is subject to appeal in
accordance with Sec. 1.963a(a). There is no right of appeal from a
decision rejecting a compromise offer.
(Authority: 38 U.S.C. 501 and 7104).
[69 FR 62201, Oct. 25, 2004]
Sec. 1.959 Records and certificates.
The Chairperson of the Committee shall execute or certify any
documents pertaining to its proceedings. He/she will be responsible for
maintaining needed records of the transactions of the Committee and
preparation of any administrative or other reports which may be
required.
(Authority: 38 U.S.C. 501)
[44 FR 59906, Oct. 17, 1979]
Sec. 1.960 Legal and technical assistance.
Legal questions involving a determination under Sec. 2.6(e)(4) of
this chapter will be referred to the Regional Counsel for action in
accordance with delegations of the General Counsel, unless there is an
existence a General Counsel's opinion or an approved Regional Counsel's
opinion dispositive of the controlling legal principle. As to matters
not controlled by Sec. 2.6(e)(4) of this chapter, the Chairperson of the
regional office Committee or at his/her instance, a member, may seek and
obtain advice from the Regional Counsel on legal matters within his/her
jurisdiction and from other division chiefs in their areas of
responsibility, on any matter properly before the Committee.
[[Page 129]]
Guidance may also be requested from the Central Office staff.
(Authority: 38 U.S.C. 501)
[44 FR 59906, Oct. 17, 1979]
Sec. 1.961 Releases.
On matters within its jurisdiction, the Committee may authorize the
release of any right, title, claim, lien or demand, however acquired,
against any person obligated on a loan guaranteed, insured, or made by
the Department of Veterans Affairs under the provisions of 38 U.S.C. ch.
37, or on an acquired loan, or on a vendee account.
[39 FR 26400, July 19, 1974]
Sec. 1.962 Waiver of overpayments.
There shall be no collection of an overpayment, or any interest
thereon, which results from participation in a benefit program
administered under any law by VA when it is determined by a regional
office Committee on Waivers and Compromises that collection would be
against equity and good conscience. For the purpose of this regulation,
the term overpayment refers only to those benefit payments made to a
designated living payee or beneficiary in excess of the amount due or to
which such payee or beneficiary is entitled. The death of an indebted
payee, either prior to a request for waiver of the indebtedness or
during Committee consideration of the waiver request, shall not preclude
waiver consideration. There shall be no waiver consideration of an
indebtedness that results from the receipt of a benefit payment by a
non-payee who has no claim or entitlement to such payment.
(a) Waiver consideration is applicable in an indebtedness resulting
from work study and education loan default, as well as indebtedness of a
veteran-borrower, veteran transferee, or indebted spouse of either,
arising out of participation in the loan program administered under 38
U.S.C. ch. 37. Also subject to waiver consideration is an indebtedness
which is the result of VA hospitalization, domiciliary care, or
treatment of a veteran, either furnished in error or on the basis of
tentative eligibility.
(b) In any case where there is an indication of fraud or
misrepresentation of a material fact on the part of the debtor or any
other party having an interest in the claim, action on a request for
waiver will be deferred pending appropriate disposition of the matter.
However, the existence of a prima facie case of fraud shall,
nevertheless, entitle a claimant to an opportunity to make a rebuttal
with countervailing evidence; similiarly, the misrepresentation must be
more than non-willful or mere inadvertence. The Committee may act on a
request for waiver concerning such debts, after the Inspector General or
the Regional Counsel has determined that prosecution is not indicated,
or the Department of Justice has notified VA that the alleged fraud or
misrepresentation does not warrant action by that department, or the
Department of Justice or the appropriate United States Attorney,
specifically authorized action on the request for waiver.
(Authority: 38 U.S.C. 501)
[39 FR 26400, July 19, 1974, as amended at 44 FR 59906, Oct. 17, 1979;
50 FR 38803, Sept. 25, 1985; 52 FR 42112, Nov. 3, 1987]
Sec. 1.963 Waiver; other than loan guaranty.
(a) General. Recovery of overpayments of any benefits made under
laws administered by the VA shall be waived if there is no indication of
fraud, misrepresentation, or bad faith on the part of the person or
persons having an interest in obtaining the waiver and recovery of the
indebtedness from the payee who received such benefits would be against
equity and good conscience.
(b) Application. A request for waiver of an indebtedness under this
section shall only be considered:
(1) If made within 2 years following the date of a notice of
indebtedness issued on or before March 31, 1983, by the Department of
Veterans Affairs to the debtor, or
(2) Except as otherwise provided herein, if made within 180 days
following the date of a notice of indebtedness issued on or after April
1, 1983, by the Department of Veterans Affairs to the debtor. The 180
day period may be extended if the individual requesting waiver
demonstrated to the Chairperson of the Committee on Waivers and
Compromises that, as a result of
[[Page 130]]
an error by either the Department of Veterans Affairs or the postal
authorities, or due to other circumstances beyond the debtor's control,
there was a delay in such individual's receipt of the notification of
indebtedness beyond the time customarily required for mailing (including
forwarding). If the requester does substantiate that there was such a
delay in the receipt of the notice of indebtedness, the Chairperson
shall direct that the 180 day period be computed from the date of the
requester's actual receipt of the notice of indebtedness.
(Authority: 38 U.S.C. 5302 (a) & (c))
[39 FR 26400, July 19, 1974, as amended at 44 FR 59906, Oct. 17, 1979;
48 FR 27400, June 15, 1983; 50 FR 38803, Sept. 25, 1985; 58 FR 3840,
Jan. 12, 1993]
Sec. 1.963a Waiver; erroneous payments of pay and allowances.
(a) The provisions applicable to VA (including refunds) concerning
waiver actions relating to erroneous payments to VA employees of pay and
allowances, and travel, transportation, and relocation expenses and
allowances, are set forth in 5 U.S.C. 5584. The members of Committees on
Waivers and Compromises assigned to waiver actions under Sec. 1.955 of
this part are delegated all authority granted the Secretary under 5
U.S.C. 5584 to deny waiver or to grant waiver in whole or in part of any
debt regardless of the amount of the indebtedness. Committee members
also have exclusive authority to consider and render a decision on the
appeal of a waiver denial or the granting of a partial waiver. However,
the Chairperson of the Committee must assign the appeal to a different
Committee member or members than the member or members who made the
original decision that is now the subject of the appeal. The following
are the only provisions of Secs. 1.955 through 1.970 of this part
applicable to waiver actions concerning erroneous payments of pay and
allowances, and travel, transportation, and relocation expenses and
allowances, under 5 U.S.C. 5584: Secs. 1.955(a) through (e)(2),
1.956(a)(introductory text) and (a)(3), 1.959, 1.960, 1.963a, and
1.967(c).
(b) Waiver may be granted under this section and 5 U.S.C. 5584 when
collection would be against equity and good conscience and not in the
best interest of the United States. Generally, these criteria will be
met by a finding that the erroneous payment occurred through
administrative error and that there is no indication of fraud,
misrepresentation, fault, or lack of good faith on the part of the
employee or other person having an interest in obtaining a waiver of the
claim, and waiver would not otherwise be inequitable. Generally, waiver
is precluded when an employee receives a significant unexplained
increase in pay or allowances, or otherwise knows, or reasonably should
know, that an erroneous payment has occurred, and fails to make
inquiries or bring the matter to the attention of the appropriate
officials. Waiver under this standard will depend upon the facts
existing in each case.
(c) An application for waiver must be received within 3 years
immediately following the date on which the erroneous payment was
discovered.
(Authority: 5 U.S.C. 5584; 38 U.S.C. 501).
[69 FR 62202, Oct. 25, 2004]
Sec. 1.964 Waiver; loan guaranty.
(a) General. Any indebtedness of a veteran or the indebtedness of
the spouse shall be waived only when the following factors are
determined to exist:
(1) Following default there was a loss of the property which
constituted security for the loan guaranteed, insured or made under
chapter 37 of title 38 United States Code;
(2) There is no indication of fraud, misrepresentation, or bad faith
on the part of the person or persons having an interest in obtaining the
waiver; and
(3) Collection of such indebtedness would be against equity and good
conscience.
(b) Spouse. The waiver of a veteran's indebtedness shall inure to
the spouse of such veteran insofar as concerns said indebtedness, unless
the obligation of the spouse is specifically excepted. However, the
waiver of the indebtedness of the veteran's spouse shall not inure to
the benefit of the veteran unless specifically provided for in the
waiver decision.
[[Page 131]]
(c) Surviving spouse or former spouse. A surviving spouse of a
veteran or the former spouse of a veteran may be granted a waiver of the
indebtedness provided the requirements of paragraph (a) of this section
are met.
(d) Preservation of Government rights. In cases in which it is
determined that waiver may be granted, the action will take such form
(covenant not to sue, or otherwise) as will preserve the rights of the
Government against obligors other than the veteran or the spouse.
(e) Application. A request for waiver of an indebtedness under this
section shall be made within one year after the date on which the debtor
receives, by Certified Mail-Return Receipt Requested, written notice
from VA of the indebtedness. If written notice of indebtedness is sent
by means other than Certified Mail-Return Receipt Requested, then there
is no time limit for filing a request for waiver of indebtedness under
this section.
(Authority: 38 U.S.C. 5302(b))
(f) Exclusion. Except as otherwise provided in this section, the
indebtedness of a nonveteran obligor under the loan program is excluded
from waiver.
(Authority: 38 U.S.C. 5302 (b) and (c))
[39 FR 26400, July 19, 1974, as amended at 44 FR 59907, Oct. 17, 1979;
57 FR 33875, July 31, 1992; 58 FR 3840, Jan. 12, 1993]
Sec. 1.965 Application of standard.
(a) The standard ``Equity and Good Conscience'', will be applied
when the facts and circumstances in a particular case indicate a need
for reasonableness and moderation in the exercise of the Government's
rights. The decision reached should not be unduly favorable or adverse
to either side. The phrase equity and good conscience means arriving at
a fair decision between the obligor and the Government. In making this
determination, consideration will be given to the following elements,
which are not intended to be all inclusive:
(1) Fault of debtor. Where actions of the debtor contribute to
creation of the debt.
(2) Balancing of faults. Weighing fault of debtor against Department
of Veterans Affairs fault.
(3) Undue hardship. Whether collection would deprive debtor or
family of basic necessities.
(4) Defeat the purpose. Whether withholding of benefits or recovery
would nullify the objective for which benefits were intended.
(5) Unjust enrichment. Failure to make restitution would result in
unfair gain to the debtor.
(6) Changing position to one's detriment. Reliance on Department of
Veterans Affairs benefits results in relinquishment of a valuable right
or incurrence of a legal obligation.
(b) In applying this single standard for all areas of indebtedness,
the following elements will be considered, any indication of which, if
found, will preclude the granting of waiver:
(1) Fraud or misrepresentation of a material fact (see
Sec. 1.962(b)).
(2) Bad faith. This term generally describes unfair or deceptive
dealing by one who seeks to gain thereby at another's expense. Thus, a
debtor's conduct in connection with a debt arising from participation in
a VA benefits/services program exhibits bad faith if such conduct,
although not undertaken with actual fraudulent intent, is undertaken
with intent to seek an unfair advantage, with knowledge of the likely
consequences, and results in a loss to the government.
(Authority: 38 U.S.C. 5302(c))
[39 FR 26400, July 19, 1974, as amended at 58 FR 3841, Jan. 12, 1993; 58
FR 7296, Feb. 5, 1993; 69 FR 62202, Oct. 25, 2004]
Sec. 1.966 Scope of waiver decisions.
(a) Decisions will be based on the evidence of record. A hearing may
be held at the request of the claimant or his/her representative. No
expenses incurred by a claimant, his representative, or any witness
incident to a hearing will be paid by the Department of Veterans
Affairs.
(b) A regional office Committee may:
(1) Waive recovery as to certain persons and decline to waive as to
other persons whose claims are based on the same veteran's service.
(2) Waive or decline to waive recovery from specific benefits or
sources, except that:
(i) There shall be no waiver of recovery out of insurance of an
indebtedness
[[Page 132]]
secured thereby; i.e., an insurance overpayment to an insured. However,
recovery may be waived of any or all of such indebtedness out of
benefits other than insurance then or thereafter payable to the insured.
(Authority: 38 U.S.C. 501, 5302)
[39 FR 26400, July 19, 1974, as amended at 44 FR 59907, Oct. 17, 1979;
48 FR 1056, Jan. 10, 1983; 69 FR 62202, Oct. 25, 2004]
Sec. 1.967 Refunds.
(a) Except as provided in paragraph (c) of this section, any portion
of an indebtedness resulting from participation in benefits programs
administered by the Department of Veterans Affairs which has been
recovered by the U.S. Government from the debtor may be considered for
waiver, provided the debtor requests waiver in accordance with the time
limits of Sec. 1.963(b). If collection of an indebtness is waived as to
the debtor, such portions of the indebtedness previously collected by
the Department of Veterans Affairs will be refunded. In the event that
waiver of collection is granted for either an education, loan guaranty,
or direct loan debt, there will be a reduction in the debtor's
entitlement to future benefits in the program in which the debt
originated.
(b) The Department of Veterans Affairs may not waive collection of
the indebtedness of an educational institution found liable under 38
U.S.C. 3685. Waiver of collection of educational benefit overpayments
from all or a portion of the eligible persons attending an educational
institution which has been found liable under 38 U.S.C. 3685 shall not
relieve the institution of its assessed liability. (See 38 CFR
21.4009(f)).
(c) The regulatory provisions concerning refunds of indebtedness
collected by the Department of Veterans Affairs arising from erroneous
payments of pay and allowances and travel, transportation, and
relocation expenses and allowances are set forth in 4 CFR Parts 91 and
92.
(d) Refund of the entire amount collected may not be made when only
a part of the debt is waived or when collection of the balance of a loan
guaranty indebtedness by the Department of Veterans Affairs from
obligors, other than a husband or wife of the person requesting waiver,
will be adversely affected. Only where the amount collected exceeds the
balance of the indebtedness still in existence will a refund be made in
the amount of the difference between the two. Otherwise, refunds will be
made in accordance with paragraph (a) of this section.
(Authority: 38 U.S.C. 3685, 5302; 5 U.S.C. 5584)
[48 FR 1056, Jan. 10, 1983, as amended at 60 FR 53276, Oct. 13, 1995]
Sec. 1.968 [Reserved]
Sec. 1.969 Revision of waiver decisions.
(a) Jurisdiction. A decision involving waiver may be reversed or
modified on the basis of new and material evidence, fraud, a change in
law or interpretation of law specifically stated in a Department of
Veterans Affairs issue, or clear and unmistakable error shown by the
evidence in file at the time the prior decision was rendered by the same
or any other regional office Committee.
(b) Finality of decisions. Except as provided in paragraph (a) of
this section, a decision involving waiver rendered by the Committee
having jurisdiction is final, subject to the provisions of:
(1) Sections 3.104(a), 19.153 and 19.154 of this chapter as to
finality of decisions;
(2) Section 3.105 (a) and (b) of this chapter as to revision of
decisions, except that the Central Office staff may postaudit or make an
administrative review of any decision of a regional office Committee;
(3) Sections 3.103, 19.113 and 19.114 of this chapter as to notice
of disagreement and the right of appeal;
(4) Section 19.124 of this chapter as to the filing of
administrative appeals and the time limits for filing such appeals.
(c) Difference of opinion. Where reversal or amendment of a decision
involving waiver is authorized under Sec. 3.105(b) of this chapter
because of a difference of opinion, the effective date of waiver will be
governed by the principle contained in Sec. 3.400(h) of this chapter.
(Authority: 38 U.S.C. 501)
[44 FR 59907, Oct. 17, 1979]
[[Page 133]]
Sec. 1.970 Standards for compromise.
Decisions of the Committee respecting acceptance or rejection of a
compromise offer shall be in conformity with the standards in
Secs. 1.930 through 1.936. In loan guaranty cases the offer of a veteran
or other obligor to effect a compromise must relate to an indebtedness
established after the liquidation of the security, if any, and shall be
reviewed by the Committee. An offer to effect a compromise may be
accepted if it is deemed advantageous to the Government. A decision on
an offer of compromise may be revised or modified on the basis of any
information which would warrant a change in the original decision.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720)
[44 FR 59907, Oct. 17, 1979, as amended at 69 FR 62202, Oct. 25, 2004]
Salary Offset Provisions
Source: 52 FR 1905, Jan. 16, 1987, unless otherwise noted.
Sec. 1.980 Scope.
(a) In accordance with 5 CFR part 550, subpart K, the provisions set
forth in Secs. 1.980 through 1.995 implement VA's authority for the use
of salary offset to satisfy certain debts owed to VA.
(b) These regulations apply to offsets from the salaries of current
employees of VA, or any other agency, who owe debts to VA. Offsets by VA
from salaries of current VA employees who owe debts to other agencies
shall be processed in accordance with procedures set forth in 5 CFR part
550, subpart K.
(c) These regulations do not apply to debts or claims arising under
the Internal Revenue Code of 1954, as amended, the Social Security Act,
the tariff laws of the United States, or to any case where collection of
a debt by salary offset is explicitly provided for (e.g., travel
advances in 5 U.S.C. 5705 and employee training expenses in 5 U.S.C.
4108) or prohibited by another statute.
(d) These regulations do not preclude an employee from requesting
waiver of an overpayment under 38 U.S.C. 5302, 5 U.S.C. 5584, or any
other similar provision of law, or in any way questioning the amount or
validity of a debt not involving benefits under the laws administered by
VA by submitting a subsequent claim to the General Accounting Office in
accordance with procedures prescribed by that office.
(e) These regulations do not apply to any adjustment to pay arising
out of an employee's election of coverage or a change in coverage under
a Federal benefits program requiring periodic deductions from pay if the
amount to be recovered was accumulated over four pay periods or less.
(f) These regulations do not apply to a routine intra-agency
adjustment of pay that is made to correct an overpayment of pay
attributable to clerical or administrative errors or delays in
processing pay documents, if the overpayment occurred within the four
pay periods preceding the adjustment and, at the time of such
adjustment, or as soon thereafter as practicable, the individual is
provided written notice of the nature and amount of the adjustment and a
point of contact for contesting such adjustment.
(g) These regulations do not apply to any adjustment to collect a
debt amounting to $50 or less, if at the time of such adjustment, or as
soon thereafter as practicable, the individual is provided with written
notice of the nature and amount of the adjustment and a point of contact
for contesting such adjustment.
(h) These regulations do not preclude the compromise, suspension, or
termination of collection action under the Federal Claims Collection
Standards (FCCS) (31 CFR parts 900-904) and VA regulations 38 CFR 1.930
through 1.944.
(i) The procedures and requirements of these regulations do not
apply to salary offset used to recoup a Federal employee's debt where a
judgment has been obtained against the employee for the debt.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987, as amended at 54
FR 34980, Aug. 23, 1989; 69 FR 62202, Oct. 25, 2004]
Sec. 1.981 Definitions.
(a) Agency means:
(1) An executive agency as defined in 5 U.S.C. 105, including the
U.S. Postal Service, and the U.S. Postal Rate Commission, and
[[Page 134]]
(2) A military department as defined in 5 U.S.C. 102.
(3) An agency or court of the judicial branch, including a court as
defined in 28 U.S.C. 610, the District Court for the Northern Mariana
Islands, and the Judicial Panel on Multidistrict Litigation;
(4) An agency of the legislative branch, including the U.S. Senate
and the U.S. House of Representatives; and
(5) Other independent establishments that are entities of the
Federal Government.
(b) Debt means an amount owed to the United States from sources
which include loans insured or guaranteed by the United States and all
other amounts due the United States from fees, leases, rents, royalties,
services, sales of real or personal property, overpayments, penalties,
damages, interest, fines and forfeitures (except those arising under the
Uniform Code of Military Justice), and all other similar sources.
(c) Disposable pay means that part of current basic pay, special
pay, incentive pay, retired pay, retainer pay, or in the case of an
employee not entitled to basic pay, other authorized pay remaining after
the deduction of any amount required by law to be withheld. Excluded
from this definition are deductions described in 5 CFR 581.105(b)
through (f).
(d) Employee means a current employee of VA or other Federal agency
including a current member of the Armed Forces or a Reserve of the Armed
Forces (Reserves).
(e) Salary offset means an attempt to collect a debt under 5 U.S.C.
5514 by deduction(s) at one or more officially estabilished pay
intervals from the current pay account of an employee without his or her
consent.
(f) Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt owed by an employee to VA or another Federal agency
as permitted or required by 5 U.S.C. 5584 or 38 U.S.C. 5302, or other
similar statutes.
(g) Extreme hardship to an employee means an employee's inability to
provide himself or herself and his or her dependents with the
necessities of life such as food, housing, clothing, transportation, and
medical care.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987]
Sec. 1.982 Salary offsets of debts involving benefits under the laws
administered by VA.
(a) VA will not collect a debt involving benefits under the laws
administered by VA by salary offset unless the Secretary or appropriate
designee first provides the employee with a minimum of 30 calendar days
written notice.
(b) If the employee has not previously appealed the amount or
existence of the debt under 38 CFR parts 19 and 20 and the time for
pursuing such an appeal has not expired (Sec. 20.302), the Secretary or
appropriate designee will provide the employee with written notice of
the debt. The written notice will state that the employee may appeal the
amount and existence of the debt in accordance with the procedures set
forth in 38 CFR parts 19 and 20 and will contain the determination and
information required by Sec. 1.983(b)(1) through (5), (7), (9), (10),
and (12) though (14). The notice will also state that the employee may
request a hearing on the offset schedule under the procedures set forth
in Sec. 1.984 and such a request will stay the commencement of salary
offset.
(c) If the employee previously appealed the amount or existence of
the debt and the Board of Veterans Appeals decided the appeal on the
merits or if the employee failed to pursue an appeal within the time
provided by regulations, the Secretary or designee shall provide the
employee with written notice prior to collecting the debt by salary
offset. The notice will state:
(1) The determinations and information required by Sec. 1.983(b)(1)-
(5), (7), and (12)-(14);
(2) That the employee's appeal of the existence or amount of the
debt was determined on the merits or that the employee failed to pursue
an appeal within the time provided, and VA's decision is final except as
otherwise provided in agency regulations;
(3) That the employee may request a waiver of the debt pursuant to
38 CFR
[[Page 135]]
1.911(c)(2) subject to the time limits of 38 U.S.C. 5302.
(4) That the employee may request an oral or paper hearing on the
offset schedule and receive a decision within 60 days of such request
under the procedures and time limit set forth in Sec. 1.984 and that
such a request will stay the commencement of salary offset.
(d) If the employee has appealed the existence or amount of the debt
and the Board of Veterans Appeals has not decided the appeal on the
merits, collection of the debt by salary offset will be suspended until
the appeal is decided or the employee ceases to pursue the appeal.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987, as amended at 69 FR 62202, Oct. 25, 2004]
Sec. 1.983 Notice requirements before salary offsets of debts not
involving benefits under the laws administered by VA.
(a) For a debt not involving benefits under the laws administered by
VA, the Secretary or designee will review the records relating to the
debt to assure that it is owed prior to providing the employee with a
notice of the debt.
(b) Except as provided in Sec. 1.980(e), salary offset of debts not
involving benefits under the laws administered by VA will not be made
unless the Secretary or designee first provides the employee with a
minimum of 30 calendar days written notice. This notice will state:
(1) The Secretary or designee's determination that a debt is owed;
(2) The amount of the debt owed and the facts giving rise to the
debt;
(3) The Secretary or designee's intention to collect the debt by
means of deduction from the employee's current disposable pay account
until the debt and all accumulated interest and associated costs are
paid in full;
(4) The amount, frequency, approximate beginning date, and duration
of the intended deductions;
(5) An explanation of VA's requirements concerning interest,
administrative costs, and penalties;
(6) The employee's right to inspect and copy VA records relating to
the debt or, if the employee or his or her representative cannot
personally inspect the records, to request and receive a copy of such
records;
(7) The employee's right to enter into a written agreement with the
Secretary or designee for a repayment schedule differing from that
proposed by the Secretary or designee, so long as the terms of the
repayment schedule proposed by the employee are agreeable to the
Secretary or designee;
(8) The VA employee's right to request an oral or paper hearing on
the Secretary or appropriate designee's determination of the existence
or amount of the debt, or the percentage of disposable pay to be
deducted each pay period, so long as a request is filed by the employee
as prescribed by the Secretary. The hearing official for the hearing
requested by a VA employee must be either a VA administrative law judge
or a hearing official from an agency other than VA. Any VA hearing
official may conduct an oral or paper hearing at the request of a non-VA
employee on the determination by an appropriately designated official of
the employing agency of the existence or amount of the debt, or the
percentage of disposable pay to be deducted each pay period, so long as
a hearing request is filed by the non-VA employee as prescribed by the
employing agency.
(9) The method and time period for requesting a hearing;
(10) That the timely filing of a request for a hearing (oral or
paper) will stay the commencement of salary offset;
(11) That a final decision after the hearing will be issued at the
earliest practical date, but no later than 60 calendar days after the
filing of the request for the hearing, unless the employee requests and
the hearing officer grants a delay in the proceedings;
(12) That any knowingly false or frivolous statements,
representations, or evidence may subject the employee to:
(i) Disciplinary procedures appropriate under 5 U.S.C. ch. 75, 5 CFR
part 752, or any other applicable statutes or regulations;
(ii) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or
any other applicable statutory authority; or
(iii) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002 or
any other applicable statutory authority.
[[Page 136]]
(13) The employee's right, if applicable, to request waiver under 5
U.S.C. 5584 and 38 CFR 1.963a and any other rights and remedies
available to the employee under statutes or regulations governing the
program for which the collection is being made; and
(14) Unless there are applicable contractual or statutory provisions
to the contrary, that amounts paid on or deducted for the debt which are
later waived or found not owed to the United States will be promptly
refunded to the employee.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987, as amended at 69 FR 62202, Oct. 25, 2004; 72
FR 65462, Nov. 21, 2007]
Sec. 1.984 Request for a hearing.
(a) Except as provided in paragraph (b) of this section and in
Sec. 1.982, an employee wishing a hearing on the existence or amount of
the debt or on the proposed offset schedule must send such a request to
the office which sent the notice of the debt. The employee must also
specify whether an oral or paper hearing is requested. If an oral
hearing is requested, the request should explain why the matter cannot
be resolved by review of the documentary evidence. The request must be
received by the office which sent the notice of the debt not later than
30 calendar days from the date of the notice.
(b) If the employee files a request for a hearing after the
expiration of the 30 day period provided for in paragraph (a) of this
section, VA may accept the request if the employee shows that the delay
was because of circumstances beyond his or her control or because of
failure to receive the written notice of the filing deadline (unless the
employee has actual notice of the filing deadline).
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987, as amended at 69 FR 62203, Oct. 25, 2004]
Sec. 1.985 Form, notice of, and conduct of hearing.
(a) After an employee requests a hearing, the hearing official or
administrative law judge shall notify the employee of the form of the
hearing to be provided. If the hearing will be oral, the notice shall
set forth the date, time, and location for the hearing. If the hearing
will be paper, the employee shall be notified that he or she should
submit his or her position and arguments in writing to the hearing
official or administrative law judge by a specified date after which the
record shall be closed. This date shall give the employee reasonable
time to submit this information.
(b) An employee who requests an oral hearing shall be provided an
oral hearing if the hearing official or administrative law judge
determines that the matter cannot be resolved by review of documentary
evidence, for example, when an issue of credibility or veracity is
involved. If a determination is made to provide an oral hearing, the
hearing official or administrative law judge may offer the employee the
opportunity for a hearing by telephone conference call. If this offer is
rejected or if the hearing official or administrative law judge declines
to offer a telephone conference call hearing, the employee shall be
provided an oral hearing permitting the personal appearance of the
employee, his or her personal representative, and witnesses. A record or
transcript of every oral hearing shall be made. Witnesses shall testify
under oath or affirmation. VA shall not be responsible for the payment
of any expenses incident to attendance at the hearing which are incurred
by either the employee, his or her representative or Counsel, or
witnesses.
(c) In all other cases where an employee requests a hearing, a paper
hearing shall be provided. A paper hearing shall consist of a review of
the written evidence of record by the administrative law judge or
hearing official.
(d) In any hearing under this section, the administrative law judge
or hearing official may exclude from consideration evidence or testimony
which is irrelevant, immaterial, or unduly repetitious.
(Authority: 5 U.S.C. 5514)
[[Page 137]]
Sec. 1.986 Result if employee fails to meet deadlines.
An employee waives the right to a hearing, and will have his or her
disposable pay offset in accordance with the offset schedule, if the
employee:
(a) Fails to file a request for a hearing as prescribed in
Sec. 1.982, Sec. 1.984, or Secs. 19.1 through 19.200, whichever is
applicable, unless such failure is excused as provided in Sec. 1.984(b);
or
(b) Fails to appear at an oral hearing of which he or she had been
notified unless the administrative law judge or hearing official
determines that failure to appear was due to circumstances beyond the
employee's control.
(Authority: 5 U.S.C. 5514)
Sec. 1.987 Review by the hearing official or administrative law
judge.
(a) The hearing official or administrative law judge shall uphold
VA's determination of the existence and amount of the debt unless
determined to be erroneous by a preponderance of the evidence.
(b) The hearing official or administrative law judge shall uphold
VA's offset schedule unless the schedule would result in extreme
hardship to the employee.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987]
Sec. 1.988 Written decision following a hearing requested under
Sec. 1.984.
(a) The hearing official or administrative law judge must issue a
written decision not later than 60 days after the employee files a
request for the hearing.
(b) Written decisions provided after a hearing requested under
Sec. 1.984 will include:
(1) A statement of the facts presented to support the nature and
origin of the alleged debt;
(2) The hearing official or administrative law judge's analysis,
findings and conclusions concerning as applicable:
(i) The employee's or VA's grounds;
(ii) The amount and validity of the alleged debt; and
(iii) The repayment schedule.
(c) The decision in a case where a paper hearing was provided shall
be based upon a review of the written record. The decision in a case
where an oral hearing was provided shall be based upon the hearing and
the written record.
(Authority: 5 U.S.C. 5514)
Sec. 1.989 Review of VA records related to the debt.
(a) Notification by employee. An employee who intends to inspect or
copy VA records related to the debt as permitted by a notice provided
under Sec. 1.983 must send a letter to the office which sent the notice
of the debt stating his or her intention. The letter must be received by
that office within 30 calendar days of the date of the notice.
(b) VA response. In response to timely notice submitted by the
debtor as described in paragraph (a) of this section, VA will notify the
employee of the location and time when the employee may inspect and copy
records related to the debt.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987, as amended at 69 FR 62203, Oct. 25, 2004]
Sec. 1.990 Written agreement to repay debt as alternative to salary
offset.
(a) Notification by employee. The employee may propose, in response
to a notice under Sec. 1.983, a written agreement to repay the debt as
an alternative to salary offset. Any employee who wishes to do this must
submit a proposed written agreement to repay the debt which is received
by the office which sent the notice of the debt within 30 calendar days
of the date of the notice.
(b) VA response. In response to timely notice by the debtor as
described in paragraph (a) of this section, VA will notify the employee
whether the employee's proposed written agreement for repayment is
acceptable. It is within VA's discretion to accept a repayment agreement
instead of proceeding by offset. In making this determination, VA will
balance its interest in collecting the debt against the hardship to the
employee. VA will accept a repayment agreement instead of offset
[[Page 138]]
only if the employee is able to establish that offset would result in
extreme hardship.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987, as amended at 69 FR 62203, Oct. 25, 2004]
Sec. 1.991 Procedures for salary offset: when deductions may begin.
(a) Deductions to liquidate an employee's debt will be by the method
and in the amount stated in the notice to collect from the employee's
current pay as modified by a written decision issued under Sec. 1.982 or
Sec. 1.988, or parts 19 and 20 or by written agreement between the
employee and the VA under Sec. 1.990.
(b) If the employee filed a request for a hearing as provided by
Sec. 1.984 before the expiration of the period provided for in that
section, deductions will not begin until after the hearing official or
administrative law judge has provided the employee with a hearing, and
has rendered a final written decision.
(c) If the employee failed to file a timely request for a hearing,
deductions will begin on the date specified in the notice of intention
to offset, unless a hearing is granted pursuant to Sec. 1.984(b).
(d) If an employee retires, resigns, or his or her employment ends
before collection of the amount of the indebtedness is completed, the
remaining indebtedness will be collected according to procedures for
administrative offset (see 5 CFR 831.1801 through 831.1808, 31 CFR
901.3, and 38 CFR 1.912).
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987, as amended at 69 FR 62203, Oct. 25, 2004]
Sec. 1.992 Procedures for salary offset.
(a) Types of collection. A debt will be collected in a lump-sum or
in installments. Collection will be in a lump-sum unless the employee is
financially unable to pay in one lump-sum, or if the amount of the debt
exceeds 15 percent of the employee's disposable pay. In these cases,
deduction will be by installments.
(b) Installment deductions. (1) A debt to be collected in
installments will be deducted at officially established pay intervals
from an employee's current pay account unless the employee and the
Secretary agree to alternative arrangements for repayment. The
alternative arrangement must be in writing and signed by both the
employee and Secretary or designee.
(2) Installment deductions will be made over a period not greater
than the anticipated period of employment. The size and frequency of
installment deductions will bear a reasonable relation to the size of
the debt and the employee's ability to pay. However, the amount deducted
for any period will not exceed 15 percent of the disposable pay from
which the deduction is made, unless the employee has agreed in writing
to the deduction of a greater amount. If possible, the installment
payment will be sufficient in size and frequency to liquidate the debt
in three years. Installment payments of less than $25 per pay period or
$50 a month will be acceptable only in the most unusual circumstances.
(c) Imposition of interest, penalties, and administrative costs.
Interest, penalties, and administrative costs shall be charged in
accordance with 31 CFR 901.9 and 38 CFR 1.915.
(Authority: 5 U.S.C. 5514; 38 U.S.C. 501)
[52 FR 1905, Jan. 16, 1987, as amended at 54 FR 34980, Aug. 23, 1989; 69
FR 62203, Oct. 25, 2004]
Sec. 1.993 Non-waiver of rights.
So long as there are not statutory or contractual provisions to the
contrary, an employee's involuntary payment (of all or a portion of a
debt) under these regulations will not be interpreted as a waiver of any
rights that the employee may have under 5 U.S.C. 5514.
(Authority: 5 U.S.C. 5514)
VA will refund promptly to the appropriate individual amounts offset
under these regulations when:
(a) A debt is waived or otherwise found not owed the United States
(unless expressly prohibited by statute or regulation); or
(b) VA is directed by an administrative or judicial order to refund
amounts deducted from the employee's current pay.
(Authority: 5 U.S.C. 5514)
[[Page 139]]
Sec. 1.995 Requesting recovery through centralized administrative
offset.
(a) Under 31 U.S.C. 3716, VA and other creditor agencies must notify
Treasury of all debts over 180 days delinquent so that recovery of such
debts may be made by centralized administrative offset. This includes
those debts that VA and other agencies seek from the pay account of an
employee of another Federal agency via salary offset. Treasury and other
disbursing officials will match payments, including Federal salary
payments, against these debts. Where a match occurs, and all the
requirements for offset have been met, the payment will be offset to
satisfy the debt in whole or part.
(b) Prior to submitting a debt to Treasury for the purpose of
collection by offset, including salary offset, VA shall provide written
certification to Treasury that:
(1) The debt is past due and legally enforceable in the amount
submitted to Treasury and that VA will ensure that any subsequent
collections are credited to the debt and that Treasury shall be notified
of such;
(2) Except in the case of a judgment debt or as otherwise allowed by
law, the debt is referred to Treasury for offset within 10 years after
VA's right of action accrues;
(3) VA has complied with the provisions of 31 U.S.C. 3716 and 38 CFR
1.912 and 1.912a including, but not limited to, those provisions
requiring that VA provide the debtor with applicable notices and
opportunities for a review of the debt; and
(4) VA has complied with the provisions of 5 U.S.C. 5514 (salary
offset) and 38 CFR 1.980 through 1.994 including, but not limited to,
those provisions requiring that VA provide the debtor with applicable
notices and opportunities for a hearing.
(c) Specific procedures for notifying Treasury of debts for purposes
of collection by centralized administrative offset are contained in the
31 CFR 285.7. VA and other creditor agencies may notify Treasury of
debts that have been delinquent for 180 days or less, including debts
that VA and other creditor agencies seek to recover from the pay of an
employee via salary offset.
(Authority: 31 U.S.C. 3716; 38 U.S.C. 501)
[69 FR 62203, Oct. 25, 2004]
Procedures for Financial Institutions Regarding Garnishment of Benefit
Payments After Disbursement
Sec. 1.1000 Garnishment of payments after disbursement.
(a) Payments of benefits due under any law administered by the
Secretary that are protected by 38 U.S.C. 5301(a) and made by direct
deposit to a financial institution are subject to 31 CFR part 212,
Garnishment of Accounts Containing Federal Benefit Payments.
(b) This section may be amended only by a rulemaking issued jointly
by the Department of the Treasury and the agencies defined as a
``benefit agency'' in 31 CFR 212.3.
[76 FR 9961, Feb. 23, 2011]
PART 2_DELEGATIONS OF AUTHORITY--Table of Contents
Sec.
2.1 General provisions.
2.2 Delegation of authority to employees to issue subpoenas, etc.
2.3 Delegation of authority to employees to take affidavits, to
administer oaths, etc.
2.4 Delegation of authority to order paid advertising for use in
recruitment.
2.5 Delegation of authority to certify copies of documents, records, or
papers in Department of Veterans Affairs files.
2.6 Secretary's delegations of authority to certain officials (38
U.S.C. 512).
2.7 Delegation of authority to provide relief on account of
administrative error.
2.8 Delegation of authority to authorize allowances for Department of
Veterans Affairs employees who are notaries public.
Authority: 5 U.S.C. 302, 552a; 38 U.S.C. 501, 512, 515, 1729, 1729A,
5711; 44 U.S.C. 3702, and as noted in specific sections.
Sec. 2.1 General provisions.
In addition to the delegations of authority in this part, numerous
delegations of authority are set forth throughout this title.
(Authority: 38 U.S.C. 512)
[64 FR 47111, Aug. 30, 1999]
[[Page 140]]
Sec. 2.2 Delegation of authority to employees to issue subpoenas, etc.
(a) Authority to issue subpoenas. Employees occupying or acting in
the positions designated in paragraph (b) of this section shall have the
power to issue subpoenas for (by countersigning VA Form 2-4003) and
compel the attendance of witnesses within a radius of 100 miles from the
place of hearing and to require the production of books, papers,
documents, and other evidence. Issuing officials shall use discretion
when exercising this power.
(b) Designated positions. The positions designated pursuant to
paragraph (a) of this section are: General Counsel, Deputy General
Counsel, Chairman, Board of Veterans' Appeals, Heads of Regional Offices
and Centers having insurance or regional office activities, Under
Secretary for Health (for income matching programs), Director, Income
Verification Match Center (for income matching programs), and the
Associate Director for Operations, Income Verification Match Center (for
income matching programs).
(c) Means of service. Subpoenas issued pursuant to this section may
be served by registered or certified mail, return receipt requested,
addressed to the witness only. Personal service by any VA employee or
other authorized person may be made where authorized in writing by the
issuing official.
(d) Fees and mileage; district courts of the United States. Any
person required by such subpoena to attend as a witness shall be allowed
and paid the same fees and mileage as are paid witnesses in the district
courts of the United States. In case of disobedience to any such
subpoena, the aid of any district court of the United States may be
invoked in requiring attendance and testimony of witnesses and the
production of documentary evidence, and such court within the
jurisdiction in which the inquiry is carried on may, in the case of
contumacy or refusal to obey a subpoena issued to any officer, agent, or
employee of any corporation or to any other person, issue an order
requiring such corporation or other person to appear or to give evidence
touching the matter in question, and any failure to obey such order of
the court may be punished by such court as a contempt thereof.
(Authority: 38 U.S.C.A. 501, 5711)
[60 FR 40757, Aug. 10, 1995. Redesignated at 64 FR 47111, Aug. 30, 1999]
Sec. 2.3 Delegation of authority to employees to take affidavits,
to administer oaths, etc.
(a) An employee to whom authority is delegated by the Secretary in
accordance with 38 U.S.C. 5711, or to whom authority was delegated by
the Secretary in accordance with title III, Pub. L. 844, 74th Congress,
section 616, Pub. L. 801, 76th Congress, and section 1211, Pub. L. 85-
56, is by virtue of such delegated authority, until such authority is
revoked or otherwise terminated, empowered to take affidavits, to
administer oaths and affirmations, to aid claimants in the preparation
and presentation of claims, and to make investigations, examine
witnesses, and certify to the correctness of papers and documents upon
any matter within the jurisdiction of the Department of Veterans
Affairs. Such employee is not authorized to administer oaths in
connection with the execution of affidavits relative to fiscal vouchers
and is not authorized to take acknowledgments to policy loan agreements
and applications for cash surrender value to United States Government
life insurance and National Service life insurance.
(b) Any such oath, affirmation, affidavit, or examination, when
certified under the hand of any such employee by whom it was
administered or taken and authenticated by the seal of the Department of
Veterans Affairs, may be offered or used in any court of the United
States and, without further proof of the identity or authority of such
employee, shall have like force and effect as if administered or taken
before a clerk of such court.
(c) The delegated authority from the Secretary to employees to take
affidavits, to administer oaths, etc., will be evidenced by VA Form 4505
series.
[24 FR 10018, Dec. 11, 1959. Redesignated at 64 FR 47111, Aug. 30, 1999]
[[Page 141]]
Sec. 2.4 Delegation of authority to order paid advertising for use
in recruitment.
Paid advertisements may be used in recruitment for VA competitive
and excepted service positions. Authority to order such advertisements
is hereby delegated to Administration Heads, Assistant Secretaries,
Other Key Officials (the General Counsel; the Inspector General; the
Chairman, Board of Veterans' Appeals; and the Director, Office of Small
and Disadvantaged Business Utilization), Deputy Assistant Secretaries,
to the deputies of such officials, to the Deputy Assistant Secretary and
Associate Deputy Assistant Secretary for Human Resources Management, and
to field facility Directors.
(Authority: 5 U.S.C. 302(b)(2); 44 U.S.C. 3702)
[61 FR 20134, May 6, 1996, as amended at 72 FR 65462, Nov. 21, 2007]
Sec. 2.5 Delegation of authority to certify copies of documents,
records, or papers in Department of Veterans Affairs files.
(a) Persons occupying or acting for the following positions in the
Office of the General Counsel are authorized to certify copies of public
documents, records, or papers belonging to or in the files of the
Department of Veterans Affairs for the purposes of 38 U.S.C. 302:
General Counsel, Deputy General Counsel, Assistant General Counsel,
Deputy Assistant General Counsel, and the Regional Counsel for Puerto
Rico.
(b) The person occupying or acting in the position of Chairman,
Board of Veterans Apeals, is authorized to certify copies of decisions,
orders, subpoenas, and other documents, records, or papers issued by,
belonging to, or in the files of the Board for the purposes of 38 U.S.C.
302.
(Authority: 38 U.S.C. 302, 501, 512)
[46 FR 18978, Mar. 27, 1981, as amended at 49 FR 30692, Aug. 1, 1984; 60
FR 48029, Sept. 18, 1995; 72 FR 65462, Nov. 21, 2007]
Sec. 2.6 Secretary's delegations of authority to certain officials
(38 U.S.C. 512).
Employees occupying or acting in the positions designated below are
delegated authority as indicated:
(a) Veterans Health Administration. The Under Secretary for Health
is delegated authority:
(1) To act on all matters assigned to the Veterans Health
Administration by statute (38 U.S.C. Ch. 73) and by regulation, except
such matters as require the personal attention or action of the
Secretary.
(2) To revise, exceed, delete, increase, or decrease fees contained
in Department of Veterans Affairs Veterans Health Services and Research
Administration Manual M-1, part I, appendix A (following agreement
therefor as provided in the contract with the intermediary involved), in
an approved State fee schedule, and to add additional fees when found to
be necessary, provided such fees are not in excess of those customarily
charged the general public, in the community concerned, for the same
service.
(3) To designate the Deputy Under Secretary for Health, or other
physician of the Veterans Health Administration, and authority is hereby
delegated such designee to perform the functions prescribed in paragraph
(a)(2) of this section.
(4) To revise, exceed, delete, increase or decrease dental fees
established in Department of Veterans Affairs Veterans Health Services
and Research Administration Manual M-4, chapter 6, and any amendments
thereto, and to add additional fees when found to be necessary,
provided: such fees are not in excess of those customarily charged the
general public, in the community concerned, for the same service.
(5) To designate the Assistant Chief Medical Director for Dentistry,
and authority is hereby delegated such designee, to perform the
functions prescribed in paragraph (a)(4) of this section.
(6) To supervise programs for grants to the Republic of the
Philippines and medical care for Commonwealth Army veterans and
Philippine Scouts in Veterans Memorial Medical Center, Manila, pursuant
to the provisions of 38 U.S.C. ch. 17, subch. IV.
(7) To designate the Deputy Under Secretary for Health of the
Veterans Health Administration and authority is hereby delegated such
designee to designate a Department of Veterans
[[Page 142]]
Affairs full-time physician or nonmedical Director to serve as an ex
officio member on advisory bodies to State Comprehensive Health Planning
agencies and to individual Regional Medical Programs in those areas in
which there is located one or more Department of Veterans Affairs
hospitals or other health facilities, who shall serve on such advisory
group as the representative of the Department of Veterans Affairs health
facilities located in that area.
(8) To authorize Directors of Department of Veterans Affairs
property and facilities under the charge and control of the Department
of Veterans Affairs to appoint police officers with the power to enforce
Federal laws and Department of Veterans Affairs regulations, to
investigate violations of those laws and to arrest for crimes committed
on Department of Veterans Affairs property to the full extent provided
by Department policies and procedures.
(Authority: 38 U.S.C. 501 and 512)
(9) To develop and establish minimum safety and quality standards
for adaptive equipment provided under chapter 39 of title 38, United
States Code, or to appoint a designee to perform these functions.
(b) Veterans Benefits Administration--(1) General. The Under
Secretary for Benefits is delegated authority to act on all matters
assigned to the Veterans Benefits Administration except as provided in
Sec. 1.771 of this chapter and to authorize supervisory or adjudicative
personnel within his/her jurisdiction to perform such functions as may
be assigned.
(2) Philippines. The Director, Department of Veterans Affairs
Regional Office, Manila, Philippines, is delegated authority to exercise
such authorities as are delegated to directors of regional offices in
the United States, which are appropriate to the administration in the
Republic of the Philippines of the laws administered by the Department
of Veterans Affairs.
(c) Office of Management. (1) The Assistant Secretary for Management
(Chief Financial Officer) is delegated authority to act on all matters
assigned to his/her office, and to authorize supervisory personnel
within his/her jurisdiction to perform such functions as may be
assigned. Appropriate written notification will be furnished other
Federal agencies concerning such authorizations.
(2) The Assistant Secretary for Management (Chief Financial Officer)
is delegated authority under 31 U.S.C. 1553(c)(1), to approve, in a
fixed appropriation account to which the period of availability for
obligation has expired, obligational increases related to contract
changes when such transaction will cause cumulative obligational
increase for contract changes during a fiscal year to exceed $4 million
but not more than $25 million; for this responsibility the Assistant
Secretary for Management (Chief Financial Officer) shall act as a member
of the Office of the Secretary and shall report to and consult with the
Secretary on these matters.
(d) Assistant Secretary for Management (Chief Financial Officer);
administration heads and staff office directors. The Assistant Secretary
for Management (Chief Financial Officer) is delegated authority to take
appropriate action (other than provided for in paragraphs (e)(3) and
(e)(4) of this section) in connection with the collection of civil
claims by VA for money or property, as authorized in Sec. 1.900, et seq.
The Assistant Secretary for Management (Chief Financial Officer) may
redelegate such authority as he/she deems appropriate to administration
heads and staff office directors.
(Authority: 38 U.S.C. 501, 512)
(e) General Counsel. (1) The General Counsel is delegated authority
to serve as the Regulatory Policy Officer for the Department in
accordance with Executive Order 12866. The General Counsel, the
Principal Deputy General Counsel, the Deputy General Counsel, Central
Office, and the Director of the Office of Regulation Policy and
Management are delegated authority to manage, direct, and coordinate the
Department's rulemaking activities, including the revision and
reorganization of regulations, and to perform all functions necessary or
appropriate under
[[Page 143]]
Executive Order 12866 and other rulemaking requirements.
(Authority: 38 U.S.C. 501, 512)
(2) Under the provisions of 38 U.S.C. 515(b), the General Counsel,
Deputy General Counsel, Assistant General Counsel and Regional Counsel,
or those authorized to act for them, are authorized to consider,
ascertain, adjust, determine, and settle tort claims cognizable
thereunder and to execute an appropriate voucher and other necessary
instruments in connection with the final disposition of such claims.
(3) Under the provisions of ``The Federal Medical Care Recovery
Act,'' 42 U.S.C. 2651, et seq. (as implemented by part 43, title 28,
Code of Federal Regulations), authority is delegated to the General
Counsel, Deputy General Counsel, Assistant General Counsel (Professional
Staff Group I), Deputy Assistant General Counsel of said staff group,
and Regional Counsels or those authorized to act for them, to collect in
full, compromise, settle, or waive any claim and execute the release
thereof; however, claims in excess of $100,000 may be compromised,
settled, or waived only with the prior approval of the Department of
Justice.
(4) Under the Federal Claims Collection Act of 1966, 31 U.S.C. 3711,
et seq., authority is delegated to the General Counsel, Deputy General
Counsel, Assistant General Counsel, Deputy Assistant General Counsel and
Regional Counsel, or those authorized to act for them, to:
(i) Make appropriate determinations with respect to the litigative
probabilities of a claim (Sec. 1.932 of this chapter), the legal merits
of a claim (Sec. 1.942(e) of this chapter), and any other legal
considerations of a claim.
(ii) Collect in full a claim involving damage to or loss of
government property under the jurisdiction of the Department of Veterans
Affairs resulting from negligence or other legal wrong of a person
(other than an employee of the Government while acting within the scope
of his or her employment) and to compromise, suspend, or terminate any
such claim not exceeding $100,000.
(iii) Collect a claim in full from an individual or legal entity who
is liable for the cost of hospital, medical, surgical, or dental care
and treatment of a person, and to compromise, suspend, or terminate any
such claim not exceeding $100,000.
(Authority: 31 U.S.C. 3711(a)(2); 38 U.S.C. 501, 512)
(iv) The delegations of authority set forth in paragraphs (e)(4)(ii)
and (iii) of this section do not apply to the handling of any claim as
to which there is an indication of fraud, the presentation of a false
claim or misrepresentation on the part of the debtor or any other party
having an interest in the claim, or to any claim based in whole or in
part on conduct in violation of the antitrust laws. Such cases will be
considered by the General Counsel, who will make the determination in
all instances as to whether the case warrants referral to the Department
of Justice. The delegations of authority are applicable to those claims
where the Department of Justice determines that action based upon the
alleged fraud, false claim, or misrepresentation is not warranted.
(5) Pursuant to the provisions of the Military Personnel and
Civilian Employees' Claim Act of 1964, 31 U.S.C. 3721, as amended, the
General Counsel, Deputy General Counsel, Assistant General Counsel
(Professional Staff Group III), Deputy Assistant General Counsel of said
staff group, and Regional Counsel or those authorized to act for them,
are authorized to settle and pay a claim for not more than $40,000 made
by a civilian officer or employee of the Department of Veterans Affairs
for damage to, or loss of, personal property incident to his or her
service. (Pub. L. 97-226)
(6) Under the provisions of 38 U.S.C. 7316(e), authority is
delegated to the General Counsel, Deputy General Counsel, and the
Assistant General Counsel (Professional Staff Group I) to hold harmless
or provide liability insurance for any person to whom the immunity
provisions of section 7316 apply, for damage for personal injury or
death, or for property damage, negligently caused by such person while
furnishing medical care or treatment in the exercise of his or her
duties in or for the Veterans Health Administration, if
[[Page 144]]
such person is assigned to a foreign country, detailed to State or
political division thereof, or is acting under any other circumstances
which would preclude the remedies of an injured third person against the
United States, provided by sections 1346(b) and 2672 of title 28, United
States Code, for such damage or injury.
(7) The General Counsel, Deputy General Counsel, and those
authorized to act for them, are authorized to conduct investigations,
examine witnesses, take affidavits, administer oaths and affirmations,
and certify copies of public or private documents on all matters within
the jurisdiction of the General Counsel. Pursuant to the provisions of
Sec. 2.2(c), the General Counsel, Deputy General Counsel, and those
authorized to act for them, are authorized to countersign VA Form 4505.
(8) The General Counsel, or the Deputy General Counsel acting as or
for the General Counsel, is authorized to designate, in accordance with
established standards, those legal opinions of the General Counsel which
will be considered precedent opinions involving veterans' benefits under
laws administered by the Department of Veterans Affairs.
(Authority: 38 U.S.C. 501, 512)
(9) Under the provisions of 38 U.S.C. 1729(c)(1), authority is
delegated to the General Counsel, Deputy General Counsel, Assistant
General Counsel (Professional Staff Group I), Deputy Assistant General
Counsel of said staff group, and Regional Counsel, or those authorized
to act for them, to collect in full, compromise, settle, or waive any
claim and execute the release thereof; however, claims in excess of
$100,000 may only be compromised, settled, or waived with the prior
approval of the General Counsel, Deputy General Counsel, Assistant
General Counsel (Professional Staff Group I), or Deputy Assistant
General Counsel of said staff group, or those authorized to act for
them.
(Authority: 31 U.S.C. 3711(a)(2); 38 U.S.C. 501, 512).
(10) Except as prescribed in paragraph (g)(3) of this section, the
General Counsel, Deputy General Counsel, and the Assistant General
Counsel for Professional Staff Group IV are authorized to make final
Departmental decisions on appeals under the Freedom of Information Act,
the Privacy Act, and 38 U.S.C. 5701, 5705 and 7332.
(Authority: 38 U.S.C. 512)
(11) All authority delegated in this paragraph to Regional Counsels
will be exercised by them under the supervision of and in accordance
with instructions issued by the General Counsel.
(f) National Cemetery Administration. Under Secretary for Memorial
Affairs is delegated authority:
(1) To act on all matters assigned to the National Cemetery
Administration by statute (38 U.S.C. chapter 24) and by regulation
except where specifically requiring the personal attention or action of
the Secretary and to authorize supervisory personnel within the
jurisdiction of the Under Secretary for Memorial Affairs, to perform
such functions as may be assigned.
(2) To designate, as deemed necessary, Superintendents of National
Cemeteries as special investigators under 38 U.S.C. 901, however, such
law enforcement authority is limited to enforcement of rules and
regulations governing conduct on property under the charge and control
of the Department of Veterans Affairs, as those rules and regulations
apply to the cemetery over which the individual Superintendent exercises
control and jurisdiction. Such designation will not authorize the
carrying of firearms by any Superintendent.
(3) To accept donations, except offers of land, made in any manner,
for the beautification or benefit of national cemeteries.
(4) To name features in national cemeteries, such as, roads, walks,
and special structures.
(5) To establish policies and specifications for inscriptions on
Government headstones, markers, and private monuments.
(Authority: 38 U.S.C. 501, 512, 2404)
(g) Inspector General. (1) The Secretary delegates to the Inspector
General, the authority, as head of the Department of Veterans Affairs,
to make written requests under the Privacy Act
[[Page 145]]
of 1974, 5 U.S.C. 552a(b)(7), for the transfer of records or copies of
records maintained by other agencies which are necessary to carry out an
authorized law enforcement activity of the Office of Inspector General.
This delegation is made pursuant to 38 U.S.C. 512. The Inspector General
may redelegate the foregoing authority within the Office of Inspector
General, but the delegation may only be to an official of sufficient
rank to ensure that the request for the records has been the subject of
a high level evaluation of the need for the information.
(2) The Inspector General delegates the authority under the
Inspector General Act of 1978, and redelegates the authority under
paragraph (a) of this section, to request Privacy Act-protected records
from Federal agencies pursuant to subsection (b)(7) of the Privacy Act
to each of the following Office of Inspector General officials: (i)
Deputy Inspector General, (ii) Assistant Inspector General for
Investigations, (iii) Deputy Assistant Inspector General for
Investigations, (iv) Chief of Operations, and (v) Special Agents in
Charge of Field Offices of Investigations. These officials may not
redelegate this authority.
(3) The Office of Inspector General is authorized to make final
decisions on appeals submitted pursuant to the Freedom of Information
Act concerning any Office of Inspector General records.
(Authority: 38 U.S.C. 512)
(h) Delegations to Office Resolution Management Officials (ORM). (1)
The Deputy Assistant Secretary for Resolution Management is delegated
authority to supervise and control the operation of the administrative
EEO Discrimination Complaint Processing System within the Department.
(2) The Deputy Assistant Secretary for Resolution Management, the
Chief Operating Officer, and all Regional EEO Officers/Field Managers
are delegated authority to make procedural agency decisions to either
accept or dismiss, in whole or in part, EEO discrimination complaints
based upon race, color, national origin, sex, religion, age, disability,
or reprisal filed by employees, former employees, or applicants for
employment.
(3) The Deputy Assistant Secretary for Resolution Management, the
Chief Operating Officer, and the Chief, Policy and Compliance are
delegated authority to make agency decisions on all breach of settlement
claims raised by employees, former employees, and applicants for
employment.
(4) The Deputy Assistant Secretary for Resolution Management, the
Chief Operating Officer, and the Chief, Policy and Compliance are
delegated authority to consider and resolve all claims raised by
employees, former employees, and applicants for employment that allege
dissatisfaction with the processing of a previously filed EEO
discrimination complaint.
(5) The Deputy Assistant Secretary for Resolution Management, the
Chief Operating Officer, and the Chief, Policy and Compliance are
delegated authority to monitor compliance by Department organizational
components with orders and decisions of the OEDCA and the EEOC.
(i) Delegations to officials of the Office of Employment
Discrimination Complaint Adjudication (OEDCA). (1) The Director and
Associate Director, OEDCA, are delegated authority to make procedural
decisions to dismiss, in whole or in part, any EEO discrimination
complaint filed by any employee, former employee, or applicant for
employment that may be pending before OEDCA, where administrative
complaint processing efficiency may be best served by doing so.
(2) The Director and Associate Director, OEDCA, are delegated
authority to dismiss, in whole or in part any EEO discrimination
complaint based upon race, color, religion, sex, national origin, age,
disability, or reprisal filed by any ORM employee, former employee, or
applicant for employment.
(3) The Director and Associate Director, OEDCA, are delegated
authority to make the agency decision on all breach of settlement claims
raised by ORM employees, former employees, and applicants for
employment.
(4) The Director and Associate Director, OEDCA, are delegated
authority to consider and resolve all claims raised by ORM employees,
former employees,
[[Page 146]]
and applicants for employment that allege dissatisfaction with the
processing of a previously filed EEO discrimination complaint.
(5) The Director and Associate Director, OEDCA, are delegated
authority to make procedural agency decisions to either accept or
dismiss, in whole or in part, EEO discrimination complaints filed by
employees, former employees, or applicants for employment where the ORM
must recuse itself from a case due to an actual, apparent, or potential
conflict of interest.
(j) Delegation to the Chairman, Board of Veterans' Appeals. In cases
where OEDCA has recused itself from a case due to an actual, apparent,
or potential conflict of interest, the Chairman, Board of Veterans'
Appeals, is delegated authority to make procedural agency decisions to
dismiss, in whole or in part, EEO discrimination complaints filed by
agency employees, former employees, and applicants for employment; to
make substantive final agency decisions where complainants do not
request an EEOC hearing; to take final agency action following a
decision by an EEOC Administrative Judge; and to make final agency
decisions ordering appropriate remedies and relief where there is a
finding of discrimination.
(k) Processing complaints involving certain officials. A complaint
alleging that the Secretary or the Deputy Secretary personally made a
decision directly related to matters in dispute, or are otherwise
personally involved in such matters, will be referred for procedural
acceptability review, investigation, and substantive decisionmaking to
another Federal agency (e.g., The Department of Justice) pursuant to a
cost reimbursement agreement. Referral will not be made when the action
complained of relates merely to ministerial involvement in such matters
(e.g., ministerial approval of selection recommendations submitted to
the Secretary by the Under Secretary for Health, the Under Secretary for
Benefits, the Under Secretary for Memorial Affairs, assistant
secretaries, or staff office heads).
(Authority: 38 U.S.C. 501, 512)
[25 FR 11095, Nov. 23, 1960]
Editorial Note: For Federal Register citations affecting Sec. 2.6,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and at www.fdsys.gov.
Sec. 2.7 Delegation of authority to provide relief on account of
administrative error.
(a) Section 503(a) of title 38 U.S.C., provides that if the
Secretary determines that benefits administered by the Department of
Veterans Affairs have not been provided by reason of administrative
error on the part of the Federal Government or any of its employees, the
Secretary is authorized to provide such relief on account of such error
as the Secretary determines equitable, including the payment of moneys
to any person whom he determines equitably entitled thereto.
(b) Section 503(b) of title 38 U.S.C., provides that if the
Secretary determines that any veteran, surviving spouse, child of a
veteran, or other person, has suffered loss, as a consequence of
reliance upon a determination by the Department of Veterans Affairs of
eligibility or entitlement to benefits, without knowledge that it was
erroneously made, the Secretary is authorized to provide such relief as
the Secretary determines equitable, including the payment of moneys to
any person equitably entitled thereto. The Secretary is also required to
submit an annual report to the Congress, containing a brief summary of
each recommendation for relief and its disposition. Preparation of the
report shall be the responsibility of the General Counsel.
(c) The authority to grant the equitable relief, referred to in
paragraphs (a) and (b) of this section, has not been delegated and is
reserved to the Secretary. Recommendation for the correction of
administrative error and for appropriate equitable relief therefrom will
be submitted to the Secretary, through the General Counsel. Such
recommendation may be initiated by the head of the administration having
responsibility for the benefit, or of any concerned staff office, or by
the Chairman, Board of Veterans Appeals. When a recommendation for
relief under paragraph (a) or (b) of this section is initiated by the
head of a staff office, or the Chairman, Board of Veterans
[[Page 147]]
Appeals, the views of the head of the administration having
responsibility for the benefit will be obtained and transmitted with the
recommendation of the initiating office.
(Authority: 38 U.S.C. 503, 512)
[37 FR 22864, Oct. 26, 1972, as amended at 49 FR 30693, Aug. 1, 1984; 54
FR 34981, Aug. 23, 1989; 68 FR 25504, May 13, 2003]
Sec. 2.8 Delegation of authority to authorize allowances for
Department of Veterans Affairs employees who are notaries public.
(a) Employees occupying or acting in the positions designated in
paragraph (b) of this section are authorized to designate those
employees who are required to serve as notaries public in connection
with the performance of official business and to pay an allowance for
the costs therefor not to exceed the expense required to be incurred by
them in order to obtain their commission.
(Authority: 5 U.S.C. 5945)
(b) Designated positions: Deputy Secretary, Under Secretary for
Benefits, Director, Office of Data Management and Telecommunications,
Chief Medical Director, General Counsel, Directors of regional offices,
hospitals, domiciliaries, and centers.
[35 FR 13771, Aug. 29, 1970, as amended at 49 FR 30693, Aug. 1, 1984]
PART 3_ADJUDICATION--Table of Contents
Subpart A_Pension, Compensation, and Dependency and Indemnity
Compensation
General
Sec.
3.1 Definitions.
3.2 Periods of war.
3.3 Pension.
3.4 Compensation.
3.5 Dependency and indemnity compensation.
3.6 Duty periods.
3.7 Individuals and groups considered to have performed active
military, naval, or air service.
3.10 Dependency and indemnity compensation rate for a surviving spouse.
3.11 Homicide.
3.12 Character of discharge.
3.12a Minimum active-duty service requirement.
3.13 Discharge to change status.
3.14 Validity of enlistments.
3.15 Computation of service.
3.16 Service pension.
3.17 Disability and death pension; Mexican border period and later war
periods.
3.18-3.19 [Reserved]
3.20 Surviving spouse's benefit for month of veteran's death.
3.21 Monetary rates.
3.22 DIC benefits for survivors of certain veterans rated totally
disabled at time of death.
3.23 Improved pension rates--Veterans and surviving spouses.
3.24 Improved pension rates--Surviving children.
3.25 Parents' dependency and indemnity compensation (DIC)--Method of
payment computation.
3.26 Section 306 and old-law pension annual income limitations.
3.27 Automatic adjustment of benefit rates.
3.28 Automatic adjustment of section 306 and old-law pension income
limitations.
3.29 Rounding.
3.30 Frequency of payment of improved pension and parents' dependency
and indemnity compensation (DIC).
3.31 Commencement of the period of payment.
3.32 Exchange rates for foreign currencies.
General
3.40 Philippine and Insular Forces.
3.41 Philippine service.
3.42 Compensation at the full-dollar rate for certain Filipino veterans
residing in the United States.
3.43 Burial benefits at the full-dollar rate for certain Filipino
veterans residing in the United States on the date of death.
Relationship
3.50 Spouse and surviving spouse.
3.52 Marriages deemed valid.
3.53 Continuous cohabitation.
3.54 Marriage dates.
3.55 Reinstatement of benefits eligibility based upon terminated
marital relationships.
3.56 [Reserved]
3.57 Child.
3.58 Child adopted out of family.
3.59 Parent.
3.60 Definition of ``living with''.
Administrative
3.100 Delegations of authority.
3.102 Reasonable doubt.
3.103 Procedural due process and appellate rights.
3.104 Finality of decisions.
3.105 Revision of decisions.
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3.106 Renouncement.
3.107 Awards where not all dependents apply.
3.108 State Department as agent of Department of Veterans Affairs.
3.109 Time limit.
3.110 Computation of time limit.
3.111 [Reserved]
3.112 Fractions of one cent.
3.114 Change of law or Department of Veterans Affairs issue.
3.115 Access to financial records.
Claims
3.150 Forms to be furnished.
3.151 Claims for disability benefits.
3.152 Claims for death benefits.
3.153 Claims filed with Social Security.
3.154 Injury due to hospital treatment, etc.
3.155 How to file a claim.
3.156 New and material evidence.
3.158 Abandoned claims.
3.159 Department of Veterans Affairs assistance in developing claims.
3.160 Status of claims.
3.161 Expedited Claims Adjudication Initiative--Pilot Program.
Evidence Requirements
3.200 Testimony certified or under oath.
3.201 Exchange of evidence; Social Security and Department of Veterans
Affairs.
3.202 Evidence from foreign countries.
3.203 Service records as evidence of service and character of
discharge.
3.204 Evidence of dependents and age.
3.205 Marriage.
3.206 Divorce.
3.207 Void or annulled marriage.
3.208 Claims based on attained age.
3.209 Birth.
3.210 Child's relationship.
3.211 Death.
3.212 Unexplained absence for 7 years.
3.213 Change of status affecting entitlement.
3.214 Court decisions; unremarried surviving spouses.
3.215 Termination of marital relationship or conduct.
3.216 Mandatory disclosure of social security numbers.
3.217 Submission of statements or information affecting entitlement to
benefits.
Dependency, Income and Estate
Regulations Applicable to Programs in Effect Prior to January 1, 1979
3.250 Dependency of parents; compensation.
3.251 Income of parents; dependency and indemnity compensation.
3.252 Annual income; pension; Mexican border period and later war
periods.
3.253-3.255 [Reserved]
3.256 Eligibility reporting requirements.
3.257 Children; no surviving spouse entitled.
3.258-3.259 [Reserved]
3.260 Computation of income.
3.261 Character of income; exclusions and estates.
3.262 Evaluation of income.
3.263 Corpus of estate; net worth.
3.270 Applicability of various dependency, income and estate
regulations.
Regulations Applicable to the Improved Pension Program Which Became
Effective January 1, 1979
3.271 Computation of income.
3.272 Exclusions from income.
3.273 Rate computation.
3.274 Relationship of net worth to pension entitlement.
3.275 Criteria for evaluating net worth.
3.276 Certain transfers or waivers disregarded.
3.277 Eligibility reporting requirements.
Ratings and Evaluations; Basic Entitlement Considerations
3.300 Claims based on the effects of tobacco products.
3.301 Line of duty and misconduct.
3.302 Service connection for mental unsoundness in suicide.
Ratings and Evaluations; Service Connection
3.303 Principles relating to service connection.
3.304 Direct service connection; wartime and peacetime.
3.305 Direct service connection; peacetime service before January 1,
1947.
3.306 Aggravation of preservice disability.
3.307 Presumptive service connection for chronic, tropical, or
prisoner-of-war related disease, disease associated with
exposure to certain herbicide agents, or disease associated
with exposure to contaminants in the water supply at Camp
Lejeune; wartime and service on or after January 1, 1947.
3.308 Presumptive service connection; peacetime service before January
1, 1947.
3.309 Disease subject to presumptive service connection.
3.310 Disabilities that are proximately due to, or aggravated by,
service-connected disease or injury.
3.311 Claims based on exposure to ionizing radiation.
3.312 Cause of death.
3.313 Claims based on service in Vietnam.
3.314 Basic pension determinations.
3.315 Basic eligibility determinations; dependents, loans, education.
3.316 Claims based on chronic effects of exposure to mustard gas and
Lewisite.
3.317 Compensation for certain disabilities occurring in Persian Gulf
veterans.
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3.318 Presumptive service connection for amyotrophic lateral sclerosis.
3.319-3.320 [Reserved]
3.321 General rating considerations.
3.322 Rating of disabilities aggravated by service.
3.323 Combined ratings.
3.324 Multiple noncompensable service-connected disabilities.
3.325 [Reserved]
3.326 Examinations.
3.327 Reexaminations.
3.328 Independent medical opinions.
3.329 [Reserved]
3.330 Resumption of rating when veteran subsequently reports for
Department of Veterans Affairs examination.
3.331-3.339 [Reserved]
3.340 Total and permanent total ratings and unemployability.
3.341 Total disability ratings for compensation purposes.
3.342 Permanent and total disability ratings for pension purposes.
3.343 Continuance of total disability ratings.
3.344 Stabilization of disability evaluations.
Ratings for Special Purposes
3.350 Special monthly compensation ratings.
3.351 Special monthly dependency and indemnity compensation, death
compensation, pension and spouse's compensation ratings.
3.352 Criteria for determining need for aid and attendance and
``permanently bedridden.''
3.353 Determinations of incompetency and competency.
3.354 Determinations of insanity.
3.355 Testamentary capacity for insurance purposes.
3.356 Conditions which determine permanent incapacity for self-support.
3.357 Civil service preference ratings.
3.358 Compensation for disability or death from hospitalization,
medical or surgical treatment, examinations or vocational
rehabilitation training (Sec. 3.800).
3.359 Determination of service connection for former members of the
Armed Forces of Czechoslovakia or Poland.
3.360 Service-connected health-care eligibility of certain persons
administratively discharged under other than honorable
condition.
3.361 Benefits under 38 U.S.C. 1151(a) for additional disability or
death due to hospital care, medical or surgical treatment,
examination, training and rehabilitation services, or
compensated work therapy program.
3.362 Offsets under 38 U.S.C. 1151(b) of benefits awarded under 38
U.S.C. 1151(a).
3.363 Bar to benefits under 38 U.S.C. 1151.
Rating Considerations Relative to Specific Diseases
3.370 Pulmonary tuberculosis shown by X-ray in active service.
3.371 Presumptive service connection for tuberculous disease; wartime
and service on or after January 1, 1947.
3.372 Initial grant following inactivity of tuberculosis.
3.373 [Reserved]
3.374 Effect of diagnosis of active tuberculosis.
3.375 Determination of inactivity (complete arrest) in tuberculosis.
3.376-3.377 [Reserved]
3.378 Changes from activity in pulmonary tuberculosis pension cases.
3.379 Anterior poliomyelitis.
3.380 Diseases of allergic etiology.
3.381 Service connection of dental conditions for treatment purposes.
3.382 [Reserved]
3.383 Special consideration for paired organs and extremities.
3.384 Psychosis.
3.385 Disability due to impaired hearing.
Effective Dates
3.400 General.
3.401 Veterans.
3.402 Surviving spouse.
3.403 Children.
3.404 Parents.
3.405 Filipino veterans and their survivors; benefits at the full-
dollar rate.
Apportionments
3.450 General.
3.451 Special apportionments.
3.452 Situations when benefits may be apportioned.
3.453 Veterans compensation or service pension or retirement pay.
3.454 Veterans disability pension.
3.458 Veteran's benefits not apportionable.
3.459 Death compensation.
3.460 Death pension.
3.461 Dependency and indemnity compensation.
Reductions and Discontinuances
3.500 General.
3.501 Veterans.
3.502 Surviving spouses.
3.503 Children.
3.504 Parents; aid and attendance.
3.505 Filipino veterans and their survivors; benefits at the full-
dollar rate.
Hospitalization Adjustments
3.551 Reduction because of hospitalization.
3.552 Adjustment of allowance for aid and attendance.
3.553-3.555 [Reserved]
3.556 Adjustment on discharge or release.
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3.557 [Reserved]
3.558 Resumption and payment of withheld benefits; incompetents with
estates that equaled or exceeded statutory limit.
3.559 [Reserved]
Adjustments and Resumptions
3.650 Rate for additional dependent.
3.651 Change in status of dependents.
3.652 Periodic certification of continued eligibility.
3.653 Foreign residence.
3.654 Active service pay.
3.655 Failure to report for Department of Veterans Affairs examination.
3.656 Disappearance of veteran.
3.657 Surviving spouse becomes entitled, or entitlement terminates.
3.658 Offsets; dependency and indemnity compensation.
3.659 Two parents in same parental line.
3.660 Dependency, income and estate.
3.661 Eligibility Verification Reports.
3.662-3.664 [Reserved]
3.665 Incarcerated beneficiaries and fugitive felons--compensation.
3.666 Incarcerated beneficiaries and fugitive felons--pension.
3.667 School attendance.
3.668 [Reserved]
3.669 Forfeiture.
Concurrent Benefits and Elections
3.700 General.
3.701 Elections of pension or compensation.
3.702 Dependency and indemnity compensation.
3.703 Two parents in same parental line.
3.704 Elections within class of dependents.
3.705-3.706 [Reserved]
3.707 Dependents' educational assistance.
3.708 Federal Employees' Compensation.
3.710 Civil service annuitants.
3.711 Improved pension elections.
3.712 Improved pension elections; surviving spouses of Spanish-American
War veterans.
3.713 Effective dates of improved pension elections.
3.714 Improved pension elections--public assistance beneficiaries.
3.715 Radiation Exposure Compensation Act of 1990.
Retirement
3.750 Entitlement to concurrent receipt of military retired pay and
disability compensation.
3.751 Statutory awards; retired service personnel.
3.752 [Reserved]
3.753 Public Health Service.
3.754 Emergency officers' retirement pay.
Special Benefits
3.800 Disability or death due to hospitalization, etc.
3.801 Special acts.
3.802 Medal of Honor.
3.803 Naval pension.
3.804 Special allowance under 38 U.S.C. 1312.
3.805 Loan guaranty for surviving spouses; certification.
3.806 Death gratuity; certification.
3.807 Dependents' educational assistance; certification.
3.808 Automobiles or other conveyances and adaptive equipment;
certification.
3.809 Specially adapted housing under 38 U.S.C. 2101(a)(2)(A)(i).
3.809a Special home adaptation grants under 38 U.S.C. 2101(b).
3.810 Clothing allowance.
3.811 Minimum income annuity and gratuitous annuity.
3.812 Special allowance payable under section 156 of Pub. L. 97-377.
3.813 Interim benefits for disability or death due to chloracne or
porphyria cutanea tarda.
3.814 Monetary allowance under 38 U.S.C. chapter 18 for an individual
suffering from spina bifida whose biological father or mother
is or was a Vietnam veteran or a veteran with covered service
in Korea.
3.815 Monetary allowance under 38 U.S.C. chapter 18 for an individual
with disability from covered birth defects whose biological
mother is or was a Vietnam veteran; identification of covered
birth defects.
3.816 Awards under the Nehmer Court Orders for disability or death
caused by a condition presumptively associated with herbicide
exposure.
Incompetents, Guardianship and Institutional Awards
3.850 General.
3.851 St. Elizabeths Hospital, Washington, DC.
3.852 Institutional awards.
3.853 Incompetents; estate over $25,000.
3.854 Limitation on payments for minor.
3.855 Beneficiary rated or reported incompetent.
3.856 Change of name of female fiduciary.
3.857 Children's benefits to fiduciary of surviving spouse.
Forfeiture
3.900 General.
3.901 Fraud.
3.902 Treasonable acts.
3.903 Subversive activities.
3.904 Effect of forfeiture after veteran's death.
3.905 Declaration of forfeiture or remission of forfeiture.
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Protection
3.950 Helpless children; Spanish-American and prior wars.
3.951 Preservation of disability ratings.
3.952 Protected ratings.
3.953 Pub. L. 85-56 and Pub. L. 85-857.
3.955-3.956 [Reserved]
3.957 Service connection.
3.958 Federal employees' compensation cases.
3.959 Tuberculosis.
3.960 Section 306 and old-law pension protection.
Accrued
3.1000 Entitlement under 38 U.S.C. 5121 to benefits due and unpaid upon
death of a beneficiary.
3.1001 Hospitalized competent veterans.
3.1002 Political subdivisions of United States.
3.1003 Returned and canceled checks.
3.1004-3.1006 [Reserved]
3.1007 Hospitalized incompetent veterans.
3.1008 Accrued benefits payable to foreign beneficiaries.
3.1009 Personal funds of patients.
3.1010 Substitution under 38 U.S.C. 5121A following death of a
claimant.
Subpart B_Burial Benefits
Burial Benefits: General
3.1700 Types of VA burial benefits.
3.1701 Deceased veterans for whom VA may provide burial benefits.
3.1702 Persons who may receive burial benefits; priority of payments.
3.1703 Claims for burial benefits.
Burial Benefits: Allowances & Expenses Paid by VA
3.1704 Burial allowance based on service-connected death.
3.1705 Burial allowance based on non-service-connected death.
3.1706 Burial allowance for a veteran who died while hospitalized by
VA.
3.1707 Plot or interment allowances for burial in a State veterans
cemetery or other cemetery.
3.1708 Burial of a veteran whose remains are unclaimed.
3.1709 Transportation expenses for burial in a national cemetery.
Burial Benefits: Other
3.1710 Escheat (payment of burial benefits to an estate with no heirs).
3.1711 Effect of contributions by government, public, or private
organizations.
3.1712 Effect of forfeiture on payment of burial benefits.
3.1713 Eligibility based on status before 1958.
Subpart C [Reserved]
Subpart D_Universal Adjudication Rules That Apply to Benefit Claims
Governed by Part 3 of This Title
General
3.2100 Scope of Applicability.
3.2130 Will VA accept a signature by mark or thumbprint?
Revisions
3.2600 Review of benefit claims decisions.
Editorial Note: Nomenclature changes to part 3 appear at 61 FR 7216,
Feb. 27, 1996; 62 FR 35970, July 3, 1997; 62 FR 47532, Sept. 9, 1997;
and 67 FR 46868, July 17, 2002.
Subpart A_Pension, Compensation, and Dependency and Indemnity
Compensation
Authority: 38 U.S.C. 501(a), unless otherwise noted.
General
Sec. 3.1 Definitions.
(a) Armed Forces means the United States Army, Navy, Marine Corps,
Air Force, and Coast Guard, including their Reserve components.
(b) Reserve component means the Army, Naval, Marine Corps, Air
Force, and Coast Guard Reserves and the National and Air National Guard
of the United States.
(c) Reserves means members of a Reserve component of one of the
Armed Forces.
(d) Veteran means a person who served in the active military, naval,
or air service and who was discharged or released under conditions other
than dishonorable.
(1) For compensation and dependency and indemnity compensation the
term veteran includes a person who died in active service and whose
death was not due to willful misconduct.
(2) For death pension the term veteran includes a person who died in
active service under conditions which preclude payment of service-
connected death benefits, provided such person had completed at least 2
years honorable military, naval or air service, as
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certified by the Secretary concerned. (See Secs. 3.3(b)(3)(i) and
3.3(b)(4)(i))
(Authority: 38 U.S.C. 501)
(e) Veteran of any war means any veteran who served in the active
military, naval or air service during a period of war as set forth in
Sec. 3.2.
(f) Period of war means the periods described in Sec. 3.2.
(g) Secretary concerned means:
(1) The Secretary of the Army, with respect to matters concerning
the Army;
(2) The Secretary of the Navy, with respect to matters concerning
the Navy or the Marine Corps;
(3) The Secretary of the Air Force, with respect to matters
concerning the Air Force;
(4) The Secretary of Homeland Security, with respect to matters
concerning the Coast Guard;
(5) The Secretary of Health and Human Services, with respect to
matters concerning the Public Health Service; and
(6) The Secretary of Commerce, with respect to matters concerning
the Coast and Geodetic Survey, the Environmental Science Services
Administration, and the National Oceanic and Atmospheric Administration.
(h) Discharge or release includes retirement from the active
military, naval, or air service.
(i) State means each of the several States, Territories and
possessions of the United States, the District of Columbia, and
Commonwealth of Puerto Rico.
(j) Marriage means a marriage valid under the law of the place where
the parties resided at the time of marriage, or the law of the place
where the parties resided when the right to benefits accrued.
(Authority: 38 U.S.C. 103(c))
(k) Service-connected means, with respect to disability or death,
that such disability was incurred or aggravated, or that the death
resulted from a disability incurred or aggravated, in line of duty in
the active military, naval, or air service.
(l) Nonservice-connected means, with respect to disability or death,
that such disability was not incurred or aggravated, or that the death
did not result from a disability incurred or aggravated, in line of duty
in the active military, naval, or air service.
(m) In line of duty means an injury or disease incurred or
aggravated during a period of active military, naval, or air service
unless such injury or disease was the result of the veteran's own
willful misconduct or, for claims filed after October 31, 1990, was a
result of his or her abuse of alcohol or drugs. A service department
finding that injury, disease or death occurred in line of duty will be
binding on the Department of Veterans Affairs unless it is patently
inconsistent with the requirements of laws administered by the
Department of Veterans Affairs. Requirements as to line of duty are not
met if at the time the injury was suffered or disease contracted the
veteran was:
(1) Avoiding duty by desertion, or was absent without leave which
materially interfered with the performance of military duty.
(2) Confined under a sentence of court-martial involving an
unremitted dishonorable discharge.
(3) Confined under sentence of a civil court for a felony as
determined under the laws of the jurisdiction where the person was
convicted by such court.
(Authority: 38 U.S.C. 105)
Note: See Sec. 3.1(y)(2)(iii) for applicability of in line of duty
in determining former prisoner of war status.
(n) Willful misconduct means an act involving conscious wrongdoing
or known prohibited action. A service department finding that injury,
disease or death was not due to misconduct will be binding on the
Department of Veterans Affairs unless it is patently inconsistent with
the facts and the requirements of laws administered by the Department of
Veterans Affairs.
(1) It involves deliberate or intentional wrongdoing with knowledge
of or wanton and reckless disregard of its probable consequences.
(2) Mere technical violation of police regulations or ordinances
will not per se constitute willful misconduct.
(3) Willful misconduct will not be determinative unless it is the
proximate cause of injury, disease or death. (See Secs. 3.301, 3.302.)
[[Page 153]]
(o) Political subdivision of the United States includes the
jurisdiction defined as a State in paragraph (i) of this section, and
the counties, cities or municipalities of each.
(p) Claim means a written communication requesting a determination
of entitlement or evidencing a belief in entitlement, to a specific
benefit under the laws administered by the Department of Veterans
Affairs submitted on an application form prescribed by the Secretary.
(q) Notice means written notice sent to a claimant or payee at his
or her latest address of record.
(r) Date of receipt means the date on which a claim, information or
evidence was received in the Department of Veterans Affairs, except as
to specific provisions for claims or evidence received in the State
Department (Sec. 3.108), or in the Social Security Administration
(Secs. 3.153, 3.201), or Department of Defense as to initial claims
filed at or prior to separation. However, the Under Secretary for
Benefits may establish, by notice published in the Federal Register,
exceptions to this rule, using factors such as postmark or the date the
claimant signed the correspondence, when he or she determines that a
natural or man-made interference with the normal channels through which
the Veterans Benefits Administration ordinarily receives correspondence
has resulted in one or more Veterans Benefits Administration offices
experiencing extended delays in receipt of claims, information, or
evidence from claimants served by the affected office or offices to an
extent that, if not addressed, would adversely affect such claimants
through no fault of their own.
(Authority: 38 U.S.C. 501(a), 512(a), 5110)
(s) On the borders thereof means, with regard to service during the
Mexican border period, the States of Arizona, California, New Mexico,
and Texas, and the nations of Guatemala and British Honduras.
(Authority: 38 U.S.C. 101(30))
(t) In the waters adjacent thereto means, with regard to service
during the Mexican border period, the waters (including the islands
therein) which are within 750 nautical miles (863 statute miles) of the
coast of the mainland of Mexico.
(Authority: 38 U.S.C. 101(30)
(u) Section 306 pension means those disability and death pension
programs in effect on December 31, 1978, which arose out of Pub. L. 86-
211; 73 Stat. 432.
(v) Old-Law pension means the disability and death pension programs
that were in effect on June 30, 1960. Also known as protected pension,
i.e., protected under section 9(b) of the Veteran's Pension Act of 1959
(Pub. L. 86-211; 73 Stat. 432).
(w) Improved pension means the disability and death pension programs
becoming effective January 1, 1979, under authority of Pub. L. 95-588;
92 Stat. 2497.
(x) Service pension is the name given to Spanish-American War
pension. It is referred to as a service pension because entitlement is
based solely on service without regard to nonservice-connected
disability, income and net worth.
(Authority: 38 U.S.C. 1512, 1536)
(y) Former prisoner of war. The term former prisoner of war means a
person who, while serving in the active military, naval or air service,
was forcibly detained or interned in the line of duty by an enemy or
foreign government, the agents of either, or a hostile force.
(1) Decisions based on service department findings. The Department
of Veterans Affairs shall accept the findings of the appropriate service
department that a person was a prisoner of war during a period of war
unless a reasonable basis exists for questioning it. Such findings shall
be accepted only when detention or internment is by an enemy government
or its agents.
(2) Other decisions. In all other situations, including those in
which the Department of Veterans Affairs cannot accept the service
department findings, the following factors shall be used to determine
prisoner of war status:
(i) Circumstances of detention or internment. To be considered a
former prisoner of war, a serviceperson must have been forcibly detained
or interned under circumstances comparable to those under which persons
generally
[[Page 154]]
have been forcibly detained or interned by enemy governments during
periods of war. Such circumstances include, but are not limited to,
physical hardships or abuse, psychological hardships or abuse,
malnutrition, and unsanitary conditions. Each individual member of a
particular group of detainees or internees shall, in the absence of
evidence to the contrary, be considered to have experienced the same
circumstances as those experienced by the group.
(ii) Reason for detainment or internment. The reason for which a
serviceperson was detained or interned is immaterial in determining POW
status, except that a serviceperson who is detained or interned by a
foreign government for an alleged violation of its laws is not entitled
to be considered a former POW on the basis of that period of detention
or internment, unless the charges are a sham intended to legitimize the
period of detention or internment.
(3) Central Office approval. The Director of the Compensation
Service, VA Central Office, shall approve all VA regional office
determinations establishing or denying POW status, with the exception of
those service department determinations accepted under paragraph (y)(1)
of this section.
(4) In line of duty. The Department of Veterans Affairs shall
consider that a serviceperson was forcibly detained or interned in line
of duty unless the evidence of record discloses that forcible detainment
or internment was the proximate result of the serviceperson's own
willful misconduct.
(5) Hostile force. The term hostile force means any entity other
than an enemy or foreign government or the agents of either whose
actions are taken to further or enhance anti-American military,
political or economic objectives or views, or to attempt to embarrass
the United States.
(Authority: 38 U.S.C. 101(32))
(z) Nursing home means
(1) Any extended care facility which is licensed by a State to
provide skilled or intermediate-level nursing care,
(2) A nursing home care unit in a State veterans' home which is
approved for payment under 38 U.S.C. 1742, or
(3) A Department of Veterans Affairs Nursing Home Care Unit.
(aa) Fraud:
(1) As used in 38 U.S.C. 103 and implementing regulations, fraud
means an intentional misrepresentation of fact, or the intentional
failure to disclose pertinent facts, for the purpose of obtaining, or
assisting an individual to obtain an annulment or divorce, with
knowledge that the misrepresentation or failure to disclose may result
in the erroneous granting of an annulment or divorce; and
(Authority: 38 U.S.C. 501)
(2) As used in 38 U.S.C. 110 and 1159 and implementing regulations,
fraud means an intentional misrepresentation of fact, or the intentional
failure to disclose pertinent facts, for the purpose of obtaining or
retaining, or assisting an individual to obtain or retain, eligibility
for Department of Veterans Affairs benefits, with knowledge that the
misrepresentation or failure to disclose may result in the erroneous
award or retention of such benefits.
(Authority: 38 U.S.C. 501)
Cross References: Pension. See Sec. 3.3. Compensation. See Sec. 3.4.
Dependency and indemnity compensation. See Sec. 3.5. Preservation of
disability ratings. See Sec. 3.951. Service-connection. See Sec. 3.957.
[26 FR 1563, Feb. 24, 1961]
Editorial Note: For Federal Register citations affecting Sec. 3.1,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and at www.fdsys.gov.
Sec. 3.2 Periods of war.
This section sets forth the beginning and ending dates of each war
period beginning with the Indian wars. Note that the term period of war
in reference to pension entitlement under 38 U.S.C. 1521, 1541 and 1542
means all of the war periods listed in this section except the Indian
wars and the Spanish-American War. See Sec. 3.3(a)(3) and (b)(4)(i).
(a) Indian wars. January 1, 1817, through December 31, 1898,
inclusive. Service must have been rendered with the United States
military forces against Indian tribes or nations.
[[Page 155]]
(b) Spanish-American War. April 21, 1898, through July 4, 1902,
inclusive. If the veteran served with the United States military forces
engaged in hostilities in the Moro Province, the ending date is July 15,
1903. The Philippine Insurrection and the Boxer Rebellion are included.
(c) World War I. April 6, 1917, through November 11, 1918,
inclusive. If the veteran served with the United States military forces
in Russia, the ending date is April 1, 1920. Service after November 11,
1918 and before July 2, 1921 is considered World War I service if the
veteran served in the active military, naval, or air service after April
5, 1917 and before November 12, 1918.
(d) World War II. December 7, 1941, through December 31, 1946,
inclusive. If the veteran was in service on December 31, 1946,
continuous service before July 26, 1947, is considered World War II
service.
(e) Korean conflict. June 27, 1950, through January 31, 1955,
inclusive.
(f) Vietnam era. The period beginning on February 28, 1961, and
ending on May 7, 1975, inclusive, in the case of a veteran who served in
the Republic of Vietnam during that period. The period beginning on
August 5, 1964, and ending on May 7, 1975, inclusive, in all other
cases.
(Authority: 38 U.S.C. 101(29))
(g) Future dates. The period beginning on the date of any future
declaration of war by the Congress and ending on a date prescribed by
Presidential proclamation or concurrent resolution of the Congress.
(Authority: 38 U.S.C. 101)
(h) Mexican border period. May 9, 1916, through April 5, 1917, in
the case of a veteran who during such period served in Mexico, on the
borders thereof, or in the waters adjacent thereto.
(Authority: 38 U.S.C. 101(30))
(i) Persian Gulf War. August 2, 1990, through date to be prescribed
by Presidential proclamation or law.
(Authority: 38 U.S.C. 101(33))
[26 FR 1563, Feb. 24, 1961, as amended at 32 FR 13223, Sept. 19, 1967;
36 FR 8445, May 6, 1971; 37 FR 6676, Apr. 1, 1972; 40 FR 27030, June 26,
1975; 44 FR 45931, Aug. 6, 1979; 56 FR 57986, Nov. 15, 1991; 62 FR
35422, July 1, 1997]