[Federal Register Volume 62, Number 126 (Tuesday, July 1, 1997)]
[Proposed Rules]
[Pages 35464-35468]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17216]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AH91


Veterans Education: Approval of Correspondence Programs or 
Courses

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the VA-administered 
educational assistance and educational benefits regulations concerning 
approval of programs of education pursued exclusively by correspondence 
and the correspondence portion of correspondence-residence courses for 
Department of Veterans Affairs (VA) training. A number of changes would 
be made to conform to statutory changes. Also, it is proposed to 
require that the educational institution offering a correspondence 
program or course certify to the State approving agency (SAA) that at 
least 50 percent of those pursuing the program or course require 6 
months or more to complete it based on the 6-month period immediately 
preceding the educational institution's application for approval. The 
certification is to enable the SAA to determine whether the program or 
course meets the statutory requirement that at least 50 percent of 
those pursuing the program or course require 6 months or more to 
complete it. The regulations would also be amended to expressly

[[Page 35465]]

provide that the SAA may periodically review the program or course 
approvals already granted and that this determination would be based on 
the records of the school for a 2-year period reasonably related to the 
date on which such review is conducted. These periods appear to be 
appropriate to determine compliance with the statutory requirements. 
Further, it is proposed to remove, due to the deletion of the statutory 
basis for its adoption, the requirement that the program or course must 
require not less than 6 hours preparation per week over any 26-week 
period and would change related requirements for SAAs. In addition, 
this document would clarify that the provisions concerning enrollments 
in the program or course apply not only to eligible veterans, spouses, 
and surviving spouses, but also to reservists. Other changes would be 
made for purposes of clarity. This document also requests comments on 
proposed collections of information under the Paperwork Reduction Act.

DATES: Comments must be received on or before September 2, 1997.

ADDRESSES: Mail or hand deliver written comments to: Director, Office 
of Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should 
indicate that they are submitted in response to ``RIN 2900-AH91.'' All 
written comments will be available for public inspection at the above 
address in the Office of Regulations Management, Room 1158, between the 
hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: June C. Schaeffer, Assistant Director 
for Policy and Program Administration, Education Service, Veterans 
Benefits Administration, 202-273-7187.

SUPPLEMENTARY INFORMATION: Regulations concerning VA-administered 
educational assistance and educational benefits are set forth at 38 CFR 
part 21. The current regulations regarding programs of education 
pursued exclusively by correspondence and combined correspondence-
residence courses that may be approved for VA training are set forth at 
Sec. 21.4256. The current regulations:
     Provide for approval of courses, whether accredited or 
nonaccredited;
     Provide that the school offering the course must certify 
the normal time period required for completion of the course;
     Provide that no more than 20 percent of the students 
pursuing the course should be able to complete the course in less than 
6 months in order for the course to be certified as requiring 6 months 
or more to complete, and provide that this determination shall be based 
on the records of the school for the 2 immediately preceding years; and
     Provide that the course must require at least 6 hours of 
preparation per week over any 26-week period.
    With respect to payment of VA educational assistance, the Veterans' 
Benefits Improvement Act of 1994, Public Law 103-446, amended statutory 
provisions to provide that, as to programs of education offered 
exclusively by correspondence or the correspondence portion of a 
correspondence-residence course, only programs or courses offered by an 
educational institution that is accredited may be approved; and negated 
a prior regulatory requirement providing that the normal period 
required to complete a program of education by correspondence or the 
correspondence portion of a combination correspondence-residence course 
may not be less than 6 months and imposed the requirement that at least 
50 percent of those pursuing the program or course shall require 6 
months or more to complete it. The regulations at Secs. 21.4256 and 
21.4279 would be amended to reflect these statutory changes.
    Current regulations regarding review of an application for a new 
program or course approval provide that an SAA reviewing the 
application must determine whether it meets the completion requirements 
based on the 2-year period immediately preceding the educational 
institution's application for approval. It is proposed to change the 2-
year period to a 6-month period. This is proposed since it appears that 
a 6-month period is all that is needed to make a determination under 
the statutory requirement that at least 50 percent of those pursuing 
the program or course require 6 months or more to complete it. VA is 
aware that, in effect, this would require that a correspondence program 
or course be offered for at least 6 months before it could be approved, 
but it appears that this is the most reasonable choice available to the 
Department.
    The Department considered, for the programs and courses that are 
subject to the statutory completion requirement of 6 months or more, 
allowing the SAA to approve, prior to the end of 6 months, programs or 
courses that had never been offered before and to evaluate the 
completion rate after sufficient time had elapsed. If the completion 
rate were unsatisfactory, approval would be withdrawn. VA decided 
against this alternative because such an approach could allow payments 
to be made to individuals enrolled in courses that subsequently fail to 
meet the statutory requirement and thereby cause overpayments.
    For correspondence course approvals already granted, the current 
rule provides that the determination of whether the completion 
requirement has been met shall be based on the records of the school 
for the 2 immediately preceding years. To make explicit in Sec. 21.4256 
the review process that VA believes accords with the statutory scheme 
concerning the responsibilities of SAAs, it is proposed to permit SAAs 
to review periodically correspondence program or course approvals 
already granted and to determine whether the completion requirement was 
met by examining a prior 2-year period reasonably related to the date 
on which such review is conducted. It appears that a 2-year period 
allows for a review of data over a sufficiently long period to verify 
that a decision to continue an approval would be the correct one. This 
change would allow for some flexibility. It appears that by application 
of this rule, ease of administration would be promoted and the cost of 
data provision for the reviews may be reduced, while retaining an 
appropriate means of determining compliance with the statutory approval 
requirement. Thus, this proposal would retain a 2-year period for 
review of approvals already granted but would reduce to 6 months the 
review period for new approvals.
    VA proposes to remove the current regulatory requirement that a 
correspondence program or course must require at least 6 hours of 
preparation per week over any 26-week period because the statutory 
basis for its adoption was deleted and the amended statute does not 
include such a restriction.
    Currently, section 21.4279 contains specific rules for approval of 
courses that are offered in part by correspondence and in part by 
residence. Public Law 103-446 amended the governing statute so that 
these correspondence-residence courses have to meet the same approval 
criteria as courses offered exclusively by correspondence. The 
provisions of section 21.4279 would be amended to conform to the 
statute. It is also proposed that these courses would have to meet the 
same course completion criteria as correspondence programs, including 
the time periods during which the SAA will determine whether course 
completion criteria have been met. It appears that it would be prudent

[[Page 35466]]

to adopt the same rules for these courses as for correspondence courses 
because the rationale for correspondence courses applies equally to 
correspondence-residence courses. Furthermore, it appears that approval 
errors would be reduced if correspondence programs and correspondence-
residence courses had to meet the same course completion criteria, 
including the time period during which the course completion time 
criteria has to be met.
    In addition, this document would clarify that the provisions 
concerning enrollments in correspondence courses apply not only to 
eligible veterans, spouses, and surviving spouses, but also to 
reservists. Other changes also would be made for purposes of clarity.

Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), 
collections of information are set forth in the proposed 38 CFR 
21.4256(a)(1), 21.4256(b)(3), and 21.4279. Accordingly, under section 
3507(d) of the Act, VA has submitted a copy of this rulemaking action 
to the Office of Management and Budget (OMB) for its review of the 
proposed collections of information.
    OMB assigns control numbers to collections of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.
    Comments on the proposed collections of information should be 
submitted to the Office of Management and Budget, Attention: Desk 
Officer for the Department of Veterans Affairs, Office of Information 
and Regulatory Affairs, Washington, DC 20503, with copies to the 
Director, Office of Regulations Management (02D), Department of 
Veterans Affairs, 810 Vermont Ave., NW, Washington, DC 20420. Comments 
should indicate that they are submitted in response to ``RIN 2900-
AH91.''
    Title: Certification as to the Completion Time of a Correspondence 
Program or Course.
    Summary of collection of information: The proposed 38 CFR 
21.4256(a)(1) would provide that before an SAA could approve a program 
of education offered by correspondence or the correspondence portion of 
a correspondence-residence course, the educational institution offering 
the program or course would have to certify to the SAA that at least 50 
percent of those pursuing the program or course require six months or 
more to complete it. The proposed rule would add a provision that the 
determination of compliance with the statutory requirement that at 
least 50 percent of those pursuing the program or course require 6 
months or more to complete it must be based on the experience of 
students who completed the program or course during the 6-month period 
immediately preceding the educational institution's application for 
approval of the program or course. The proposed rule also would permit 
the SAA to review periodically the record of an already approved 
program or course regarding completion time by examining a prior two-
year period reasonably related to the date on which such review is 
conducted.
    The provisions of the proposed 38 CFR 21.4279(a) also would require 
that a program of education could be pursued in a correspondence-
residence course only if the course met the requirements of 
Sec. 21.4256(a) with respect to the length of time it takes students to 
complete the course. This is a restatement of statute, except that 
through the reference to Sec. 21.4256(a) the experience of the students 
in the course during the six-month period immediately preceding the 
educational institution's application for approval of the course would 
be required to be considered by the SAA when determining whether the 
course can be approved.
    Description of need for information and proposed use of 
information: VA contracts with various agencies of the State 
governments to approve courses for VA training. A statute requires that 
a program of education pursued exclusively by correspondence or the 
correspondence portion of a combined correspondence-residence course 
may not be approved unless at least 50 percent of those persons 
pursuing such a program or course take six months or more to complete 
it. The SAA needs this information to consider approval of such 
programs or courses. Although VA occasionally acts as an SAA, VA is not 
the primary user of this information.
    The States would collect this information when an educational 
institution applies for approval of a new correspondence program or 
course. The proposed rule would also give States the authority to 
periodically review the length of time needed to complete a previously 
approved correspondence program or course. VA believes that this 
collection of information would be annual or less frequently.
    Description of likely respondents: Educational institutions that 
offer correspondence programs or courses or combined correspondence-
residence courses and that wish to have those programs or courses 
approved for VA training.
    Estimated number of respondents: 11.
    Estimated frequency of responses: Annually. Some educational 
institutions would have to supply the information several times a year 
as they develop new programs or courses or as the SAA verifies 
compliance with the rule for programs or courses already approved. 
Others would supply the information less frequently than annually if 
they develop new programs or courses less frequently. VA estimates that 
the average frequency would be annually.
    Estimated average burden per collection: 3.27 hours.
    Estimated total annual reporting and recordkeeping burden: 36 
hours. VA estimates that there would be no additional recordkeeping 
burden imposed. Officials of schools have records of when the first 
lesson in a correspondence course is sent to a student and when the 
last lesson was received. Hence, the officials have records showing how 
long it took a student to complete the course or program. Usually these 
records are stored electronically. Therefore, VA estimates that there 
would be no additional recordkeeping burden imposed by the adoption of 
this proposed rule. As indicated above, VA anticipates that this 
information would have to be supplied to an SAA by an educational 
institution an average of annually. VA estimates that to do a search by 
computer to determine whether 50 percent of the students over either a 
6-month or a 2-year period took 6 months or more to complete a program 
or course and then to file such a report with the SAA would take 3.27 
hours. This estimate is based on informal discussions with officials of 
educational institutions that offer courses or programs by 
correspondence. The estimated annual reporting burden is 36 hours.
    Title: Affirmation of Enrollment Agreement.
    Summary of collection of information: The provisions of the 
proposed 38 CFR 21.4256(b)(3) would restate a statutory provision found 
in 38 U.S.C. 3686(b). The statute requires that an individual pursuing 
a correspondence course must submit to VA a written affirmation of the 
enrollment agreement between the individual and the educational 
institution offering the course. If VA does not receive this written 
affirmation, the enrollment agreement is not effective, and VA may not 
award educational assistance to the individual.
    Description of need for information and proposed use of 
information: This statutory provision provides a consumer

[[Page 35467]]

protection because, in effect, it provides a 10-day period when the 
individual can consider whether he or she actually wishes to enroll in 
the correspondence course. If the individual does not wish to enroll, 
he or she merely does not send in an affirmation to VA. Consequently, 
the use this information has for VA is to provide evidence that the 
individual has carefully considered the step he or she is taking in 
enrolling and to enable VA to comply with a statutory prerequisite for 
the awarding of educational assistance for pursuit of a correspondence 
course.
    Description of likely respondents: Individuals who enroll in 
correspondence courses and who wish to receive educational assistance 
from VA.
    Estimated number of respondents: 3500 per year.
    Estimated frequency of responses: Once, upon enrollment in a 
correspondence course.
    Estimated average burden per collection: 5 minutes.
    Estimated total annual reporting and recordkeeping burden: 292 
hours. VA estimates that there would be no additional recordkeeping 
burden imposed. Individuals are not required to keep a record of the 
fact that they have sent in a written affirmation to VA, although, of 
course, they may choose to do so. As indicated above, VA anticipates 
that this information would have to be supplied once upon enrollment in 
a correspondence course. In recent years, an average of 3500 students 
per year have enrolled in such courses in all the educational programs 
VA administers. VA estimates that it would take each individual an 
average of 5 minutes to sign an affirmation and mail it to VA. 3500 x 
.083 = 291.67 hours, which rounded gives the estimate of 292 hours.
    The Department considers comments by the public on proposed 
collections of information in--
     Evaluating whether the proposed collections of information 
are necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the proposed collections of information, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collections of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    OMB is required to make a decision concerning the collections of 
information contained in this proposed rule between 30 and 60 days 
after publication of this document in the Federal Register. Therefore, 
a comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment to the Department on the proposed 
regulations.
    The Secretary of Veterans Affairs certifies that the adoption of 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities as they are defined in the 
Regulatory Flexibility Act, 5 U.S.C. 601-612. Although it is possible 
that small entities could be among the educational institutions 
affected by this rulemaking, the adoption of this proposed rule would 
have only a minuscule effect on any educational institution. Pursuant 
to 5 U.S.C. 605(b), this proposed rule, therefore, is exempt from the 
initial and final regulatory flexibility analyses requirements of 
sections 603 and 604.

(The Catalog of Federal Domestic Assistance numbers for programs 
affected by this proposed rule are 64.117, 64.120, and 64.124. This 
proposed rule will also affect the Montgomery GI Bill--Selected 
Reserve program, for which there is no Catalog of Federal Domestic 
Assistance number.)

List of Subjects in 38 CFR Part 21

    Administrative practice and procedure, Armed forces, Civil rights, 
Claims, Colleges and universities, Conflict of interests, Defense 
Department, Education, Employment, Grant programs-education, Grant 
programs-veterans, Health care, Loan programs-education, Loan programs-
veterans, Manpower training programs, Reporting and recordkeeping 
requirements, Schools, Travel and transportation expenses, Veterans, 
Vocational education, Vocational rehabilitation.

    Approved: June 23, 1997.
Jesse Brown,
Secretary of Veterans Affairs.

    For the reasons set out above, 38 CFR part 21 (subpart D) is 
proposed to be amended as set forth below.

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

Subpart D--Administration of Educational Assistance Programs

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

    Authority: 10 U.S.C. ch. 1606; 38 U.S.C. 501(a), chs. 30, 32, 
34, 35, 36, unless otherwise noted.

    2. Section 21.4256 is revised to read as follows:


Sec. 21.4256  Correspondence programs and courses.

    (a) Approval of correspondence programs and courses. (1) An 
educational institution desiring to enroll veterans under 38 U.S.C. 
chapter 30 or 32, spouses and/or surviving spouses under 38 U.S.C. 
chapter 35, and/or reservists under 10 U.S.C. chapter 1606 in a program 
of education to be pursued exclusively by correspondence, or in the 
correspondence portion of a combination correspondence-residence 
course, may have the program or course approved only when the 
educational institution meets the requirements of Secs. 21.4252(e), 
21.4253, and 21.4279, as applicable.

(Authority: 38 U.S.C. 3672(e))

    (2) The application of an educational institution for approval of a 
program of education to be pursued exclusively by correspondence or the 
correspondence portion of a combined correspondence-residence course 
must demonstrate that the program or course is satisfactory in all 
elements. The educational institution must certify to the State 
approving agency that at least 50 percent of those pursuing the program 
or course require 6 months or more to complete it. For applications for 
approval that are pending approval by the State approving agency on 
February 2, 1995, and for applications received by the State approving 
agency after that date, the required certification shall be based on 
the experience of students who completed the program or course during 
the 6-month period immediately preceding the educational institution's 
application for approval.

(Authority: 38 U.S.C. 3672(e))

    (3) State approving agencies have the authority to review 
periodically the length of time needed to complete each approved 
correspondence program or approved correspondence-residence course in 
order to determine whether the program or course should continue to be 
approved. In implementing this authority, a State approving agency will 
examine the results over a prior 2-year

[[Page 35468]]

period reasonably related to the date on which such a review is 
conducted.

(Authority: 38 U.S.C. 3672(e))

    (b) Enrollment agreement. (1) An educational institution offering a 
program of education to be pursued exclusively by correspondence must 
enter into an enrollment agreement with the veteran, spouse, surviving 
spouse, or reservist who wishes to receive educational assistance from 
VA while pursuing the program. The enrollment agreement shall disclose 
fully the obligations of the institution and the veteran, spouse, 
surviving spouse, or reservist, and shall display in a prominent place 
on the agreement the conditions for affirmance, termination, refund, 
and payment of the educational assistance by VA.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3686(a)(1), 3686(b))

    (2) A copy of the agreement shall be given to the veteran, spouse, 
surviving spouse, or reservist when it is signed.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3686(b))

    (3) The agreement shall not be effective unless the veteran, 
spouse, surviving spouse, or reservist after the expiration of 10 days 
after the agreement is signed, shall have signed and submitted to VA a 
written statement, with a signed copy to the institution, specifically 
affirming the agreement.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3686(b))

    (c) Mandatory refund policy. (1) Upon notification of the 
educational institution by the veteran, spouse, surviving spouse, or 
reservist of an intention not to affirm the enrollment agreement, any 
fees paid by the individual shall be returned promptly in full to him 
or her.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3686(c))

    (2) Upon termination of enrollment under an affirmed enrollment 
agreement for training in the accredited course by the veteran, spouse, 
surviving spouse, or reservist, without having completed any lessons, a 
registration fee not in excess of 10 percent of the tuition for the 
course or $50, whichever is less, may be charged him or her. When the 
individual terminates the agreement after completion of less than 25 
percent of the lessons of the course, the institution may retain the 
registration fee plus 25 percent of the tuition. When the individual 
terminates the agreement after completing 25 percent but less than 50 
percent of the lessons, the institution may retain the registration fee 
plus 50 percent of the tuition for the course. If 50 percent or more of 
the lessons are completed, no refund of tuition is required.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3686(c))

    (3) Where the school either has or adopts an established policy for 
the refund of the unused portion of tuition, fees, and other charges 
subject to proration, which is more favorable to the veteran, spouse, 
surviving spouse, or reservist than the pro rata basis as provided in 
paragraph (b)(2) of this section, such established policy will be 
applicable.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3686(c))

    (4) Any institution that fails to forward any refund due to the 
veteran, spouse, surviving spouse, or reservist within 40 days after 
receipt of a notice of termination or disaffirmance, shall be deemed, 
prima facie, to have failed to make a prompt refund as required by this 
section.

(Authority: 10 U.S.C. 16136(b); 38 U.S.C. 3686(c))

    3. In Sec. 21.4279, paragraph (a) introductory text and paragraph 
(a)(4) are revised, and paragraph (a)(5) is added, to read as follows:


Sec. 21.4279  Combination correspondence-residence program.

    (a) Requirements for pursuit. A program of education may be pursued 
partly in residence and partly by correspondence for the attainment of 
a predetermined and identified objective under the following 
conditions:
* * * * *
    (4) The educational institution offering the course is accredited 
by an agency recognized by the Secretary of Education; and
    (5) The State approving agency has approved the correspondence-
residence course and has verified compliance with the requirement of 38 
U.S.C. 3672(e) and Sec. 21.4256(a) that at least 50 percent of those 
pursuing the correspondence-residence course require 6 months or more 
to complete it.

(Authority: 38 U.S.C. 3672(e))
* * * * *
[FR Doc. 97-17216 Filed 6-30-97; 8:45 am]
BILLING CODE 8320-01-P