[Federal Register Volume 71, Number 134 (Thursday, July 13, 2006)]
[Proposed Rules]
[Pages 39616-39618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10969]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AM37


Home Schooling and Educational Institution

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
adjudication regulation regarding the definition of a child for 
purposes of establishing entitlement to additional monetary benefits 
for a child who is home-schooled. VA proposes to define educational 
institutions to include home-school programs that meet the legal 
requirements of the States (by complying with the compulsory attendance 
laws of the States) in which they are located.

DATES: Comments must be received by VA on or before September 11, 2006.

ADDRESSES: Written comments may be submitted by: mail or hand-delivery 
to the Director, Regulations Management (00REG1), Department of 
Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 
20420; fax to (202) 273-9026; or, through http://www.Regulations.gov. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AM37.'' All comments received will be available for public 
inspection in the Office of Regulation Policy and Management, Room 
1063B, between the hours of 8 a.m. and 4:30 p.m. Monday through Friday 
(except holidays). Please call (202) 273-9515 for an appointment.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Regulations Staff, 
Compensation and Pension Service, Veterans Benefits Administration, 
Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 
20420, (202) 273-7210.

SUPPLEMENTARY INFORMATION: A veteran who is entitled to compensation 
under the provisions of 38 U.S.C. 1114 or 1134 is also entitled, under 
certain circumstances, to additional compensation for dependents, 
including a child. A veteran who is entitled to pension under the 
provisions of 38 U.S.C. 1521 also is entitled to a higher annual rate 
of pension because of his or her dependents, including a child. 
Additional dependency and indemnity compensation and death pension may 
also be payable based on the number of the surviving spouse's dependent 
children. In addition, under certain circumstances, a deceased 
veteran's children may be entitled to these benefits in their own 
right.
    A child is defined in 38 U.S.C. 101(4)(A)(iii) to include a person 
who is unmarried, and, after attaining the age of eighteen years and 
until completion of education or training (but not after attaining the 
age of twenty-three years), is pursuing a course of instruction at an 
approved educational institution. The implementing regulation is at 38 
CFR 3.57(a)(1)(iii).
    Section 104(a) of title 38, United States Code, provides that, for 
the purpose of determining whether benefits are payable (except those 
under chapter 35, title 38, United States Code) for a child over age 
eighteen and under the age of twenty-three years who is attending a 
school, college, academy, seminary, technical institute, university or 
other educational institution, the Secretary may approve or disapprove 
such educational institutions.
    In a precedent opinion dated March 19, 1998 (VAOPGCPREC 3-98), VA's 
General Counsel interpreted the term ``educational institution'' to 
include only institutions that are similar in type to the institutions 
specifically enumerated in 38 U.S.C. 104(a). The General Counsel 
discussed the definition of ``institution'' and additionally concluded 
that a person who is receiving instruction in a home-school program is 
not pursuing a course of instruction at an educational institution and 
therefore does not qualify as a child within the meaning of 38 U.S.C. 
101(4)(A)(iii).
    On March 8, 2000, VA published a final rule amending 38 CFR 
3.57(a)(1)(iii) to provide a definition of education institution, and 
specifically excluded home-school programs from the scope of the term 
``educational institution.'' In publishing the amendment as a final 
rule rather than going through notice and comment under the 
Administrative Procedure Act, VA stated that the rule interpreted 
statutory provisions and made non-substantive changes.
    In Theiss v. Principi, 18 Vet. App. 204 (2004), the United States 
Court of Appeals for Veterans Claims (Court) invalidated VAOPGCPREC 3-
98 and the March 8, 2000 rulemaking that excluded home-school programs 
from the definition of ``educational institution.'' Although the 
holding in Theiss was based on the Veterans Court's disagreement with 
VA's decision to publish the amendment to Sec.  3.57(a)(1)(iii) as a 
final rule without first inviting public comment, the Court also 
discussed the underlying validity of the rule's exclusion of home-
school programs. The Court raised concerns regarding the basis for the 
General Counsel's interpretation of ``educational institution'' in 
VAOPGCPREC 3-98 and the focus in that precedent opinion on the 
characteristics that differentiated a home-school program from the 
specifically enumerated educational institutions found in section 
104(a) of title 38. According to the Court, home schooling has 
important aspects in common with the enumerated programs in section 
104(a): ``They are all educational programs; they all have instructors 
and instructional material; and they all involve some form of 
accreditation.'' 18 Vet. App. at 211.
    We propose to amend 38 CFR 3.57 to define educational institution, 
and to include home-school programs as educational institutions. We 
propose that the definition will apply to this section and to 38 CFR 
3.667, School attendance, which is a corresponding regulation regarding 
effective dates for awards based on a child's school attendance.
    The Court in Theiss discussed various dictionary definitions for 
the term ``educational institution.'' ``Educational institution'' has 
been defined as ``[a] school, seminary, college, university, or other 
educational facility.'' It is also defined as ``[a]n institution for 
the teaching and improvement of its students or pupils; a school, 
seminary, college, or university * * * Art galleries, museums, public 
libraries, even labor union buildings have at times been held to be 
educational institutions.'' A ``facility'' is defined as ``a building, 
special room, etc. that facilitates or makes possible some activity.'' 
The Court also noted that ``institution'' has been variously defined 
as: an established organization or corporation (as a college or 
university) especially of a public character; something that has been 
established, particularly a place where an educational or charitable 
enterprise is conducted; and an ``establishment * * *devoted to the 
promotion of a particular object.'' The Court noted that certain 
dictionaries define ``establishment'' to include ``a household'', and 
define ``organization'' to include a group of persons organized for a 
particular purpose. The Court

[[Page 39617]]

noted that the word ``organization'' has also been defined to refer to 
a group of people with more or less constant membership. The Court 
cited Ballentine's Law Dictionary at 390 (3rd Ed. 1969), Black's Law 
Dictionary 546 (6th Ed. 1990), Black's Law Dictionary at 532 (7th Ed. 
1999), Webster's Third New International Dictionary 1590 (1976), 
Webster's Ninth New Collegiate Dictionary 627 (1990), The American 
Heritage Dictionary of The English Language at 936, 1275 (3rd Edition), 
and The Random House Dictionary of the English Language at 737 (1967), 
as support for these definitions. Theiss, 18 Vet. App. 209-211.
    The references in the various definitions to ``establishments'' and 
``established organizations'' and to examples such as schools, 
colleges, and universities suggest that educational institutions are 
most commonly characterized by a degree of permanence in time and 
location and by the provision of education to a group of individuals. 
As suggested in Theiss, however, it also may be reasonable to construe 
the term ``educational institution'' to include some programs, such as 
home-school programs, that do not meet those general standards of 
permanence or numerosity, but which are established in accordance with 
State law for the specific purpose of providing educational 
instruction. We believe it is appropriate that home schools that 
operate in compliance with the compulsory attendance laws of the States 
in which they are located, whether treated as private schools or home 
schools under State law, constitute ``educational institutions''.
    Accordingly, we propose to establish a two-part definition of 
``educational institution.'' First, we propose to state that the term 
``educational institution'' means ``a permanent organization that 
offers courses of instruction to a group of students who meet its 
enrollment criteria, including schools, colleges, academies, 
seminaries, technical institutes, and universities.'' Second, we 
propose to state that the term ``also includes home schools that 
operate in compliance with the compulsory attendance laws of the States 
in which they are located, whether treated as private schools or home 
schools under State law.'' Third, in order to clarify that home schools 
are distinct entities from post-secondary institutions, such as 
colleges and universities, we propose to state that the term ``home 
schools'' is limited to courses of instruction for grades kindergarten 
through 12.
    Lastly, we note that 38 CFR part 3 does not include a regulation 
describing VA's criteria for approving educational institutions. We 
plan to promulgate such a rule in the near future and allow notice and 
comment in accordance with the Administrative Procedures Act.

Paperwork Reduction Act

    All collections of information under the Paperwork Reduction Act 
(44 U.S.C. 3501-3521) referenced in this proposed rule has an existing 
OMB approval as a form. The form is VA Form 21-674, Request for 
Approval of School Attendance, OMB approval number 2900-0049. No 
changes are made in this proposed rule to the collection of 
information.

Regulatory Flexibility Act

    The Secretary hereby certifies that 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. This proposed rule would not affect any small entities. 
Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule is exempt 
from the initial and final regulatory flexibility analysis requirements 
of sections 603 and 604.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Order 
classifies a rule as a significant regulatory action requiring review 
by the Office of Management and Budget if it meets any one of a number 
of specified conditions, including: having an annual effect on the 
economy of $100 million or more, creating a serious inconsistency or 
interfering with an action of another agency, materially altering the 
budgetary impact of entitlements or the rights of entitlement 
recipients, or raising novel legal or policy issues. VA has examined 
the economic, legal, and policy implications of this proposed rule and 
has concluded that it is a significant regulatory action because it 
raises novel policy issues.

Unfunded Mandates

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

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this proposal are 64.104 Pension for Non-Service-Connected 
Disability for Veterans, 64.105 Pension to Veterans Surviving Spouses, 
and Children, 64.109 Veterans Compensation for Service-Connected 
Disability, and 64.110 Veterans Dependency and Indemnity Compensation 
for Service-Connected Death.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Radioactive materials, Veterans, Vietnam.

    Approved: March 17, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
    For the reasons set out in the preamble, VA proposes to amend 38 
CFR part 3 as follows:

PART 3--ADJUDICATION

    1. The authority citation for part 3, subpart A continues to read 
as follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

    2. Revise Sec.  3.57(a)(1)(iii) to read as follows:


Sec.  3.57  Child.

    (a) * * *
    (1) * * *
    (iii) Who, after reaching the age of 18 years and until completion 
of education or training (but not after reaching the age of 23 years) 
is pursuing a course of instruction at an educational institution 
approved by the Department of Veterans Affairs. For the purposes of 
this section and Sec.  3.667, the term ``educational institution'' 
means a permanent organization that offers courses of instruction to a 
group of students who meet its enrollment criteria, including schools, 
colleges, academies, seminaries, technical institutes, and 
universities. The term also includes home schools that operate in 
compliance with the compulsory attendance laws of the States in which 
they are located, whether treated as private schools or home schools 
under State law. The term ``home schools'' is limited to courses of 
instruction for grades kindergarten through 12.


[[Page 39618]]


(Authority: 38 U.S.C. 101(4)(A), 104(a))
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 [FR Doc. E6-10969 Filed 7-12-06; 8:45 am]
BILLING CODE 8320-01-P