[Federal Register Volume 86, Number 196 (Thursday, October 14, 2021)]
[Rules and Regulations]
[Pages 57011-57015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22282]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 86, No. 196 / Thursday, October 14, 2021 /
Rules and Regulations
[[Page 57011]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 849
RIN 3206-AO08
Representative Payees Under the Civil Service Retirement System
and Federal Employees' Retirement System
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing this final
rule to promulgate regulations which administer the representative
payee program authorized by statute. This final rule is necessary to
ensure proper procedures for annuity payments due minors or individuals
who are mentally incompetent or under other legal disability and are
unable to manage their respective payments.
DATES: This rule is effective October 14, 2021.
FOR FURTHER INFORMATION CONTACT: Michael Shipley, (202) 606-0299.
Email: [email protected]. Include the RIN in the subject line of
the email.
SUPPLEMENTARY INFORMATION: On March 8, 2021, OPM issued a proposed rule
at 86 FR 13217 for the purpose of promulgating regulations to
administer the representative payee program under the Civil Service
Retirement System (CSRS) and the Federal Employees' Retirement System
(FERS). Under CSRS, the provisions of Public Law 89-554, Sept. 6, 1966,
80 Stat. 582 authorized the United States Civil Service Commission,
precursor to the United States Office of Personnel Management (OPM), to
make payments due a minor or an individual mentally incompetent, or
under other legal disability, to a person who is constituted guardian
or other fiduciary by the law of the State of residence of the claimant
or any person, who in the judgment of the Commission, is responsible
for the care of the claimant. Similarly, the FERS Act of 1986, Public
Law 99-335, Title I, section 101(a), June 6, 1986, 100 Stat. 575,
authorized OPM to make the same payments under FERS. According to these
statutes, OPM has historically authorized these payments to
individuals, and in some instances, organizations on behalf of the
annuitant as representative payees.
On March 18, 2020, Congress enacted Public Law 116-126, 134 Stat.
174-177 (2020), the Representative Payee Fraud Prevention Act of 2019
(the Act), which made numerous changes to existing statutes regarding
representative payees. First the Act officially defined the term
representative payee under both CSRS and FERS as the ``person
(including an organization) designated . . . to receive payment on
behalf of a minor or an individual mentally incompetent or under other
legal disability'' at 5 U.S.C. 8331(33) and 5 U.S.C. 8401(39),
respectively. Ensuring that organization was added to the definition
recognizes that other entities, such as agencies, institutions, nursing
homes, et al., may serve as representative payees.
Congress also enacted 5 U.S.C. 8345a and 8466a to address the
embezzlement or conversion of payments. Congress made it unlawful for a
representative payee to use the funds received as a representative
payee for any use other than the use and benefit of the individual on
whose behalf the payments were received. OPM was given the authority to
revoke certification as a representative payee, if we determine that a
representative payee has embezzled or converted the annuity payments,
and to certify payments to another representative payee or directly to
the annuitant. Congress set forth the penalty for misuse of benefits by
a representative payee, under title 18 U.S.C., as a fine, imprisonment
for not more than 5 years, or both.
Furthermore, in selecting a representative payee, OPM was granted
authority to defer or suspend the annuity payment until a
representative payee is located, if we determine that paying the
annuitant directly would cause substantial harm to the annuitant.
Substantial harm exists if both of the following conditions exist:
(1) Direct payment of benefits can be expected to cause serious
physical or mental injury to the individual; and
(2) The potential effect of the injury outweighs the effect of
having no income to meet the basic needs of the individual.
We have included this language concerning substantial harm to the
proposed regulations.
Finally, the Act created limitations on who can be appointed as a
representative payee. Individuals that have been convicted of a
violation of: (1) 5 U.S.C. 8345a or 8466a; (2) section 208 or 1632 of
the Social Security Act (42 U.S.C. 408, 1383a); or (3) section 6101 of
title 38, are barred from serving as a representative payee.
OPM is promulgating these regulations to fully implement and
administer the representative payee program for CSRS and FERS. The
regulations are required to prevent misuse and fraud by representative
payees.
The public comment period on the proposed rule ended May 7, 2021.
OPM received four substantive comments. Three of the comments voiced
general support for the proposed rule in protecting vulnerable
individuals from potential misuse by the representative payee. OPM
received one comment from the American Association of Nurse
Practitioners (AANP). The AANP suggested amending the language in 5 CFR
849.203 from ``medical professional'' to ``licensed health
practitioner.'' In addition, the AANP suggested amending 5 CFR 849.602
to include the language ``or other licensed health practitioner's''
when identifying statements that are acceptable to stop representative
payments. The AANP reasoned that the term licensed health practitioner
is already defined under 5 CFR 339.104, and that these changes more
closely align with other regulations at 5 CFR 831.1202 and 844.102 that
OPM uses to administer annuity benefits under CSRS and FERS. OPM agrees
and has adopted the AANP's recommendations by amending 5 CFR 849.203
and 849.602, to include ``licensed health practitioner'' as
appropriate. OPM has also amended 5 CFR 849.102 to include the
definition for physicians and practitioners.
[[Page 57012]]
Regulatory Impact Analysis
OPM has examined the impact of this proposed rule as required by
Executive Order 12866 and Executive Order 13563, which directs agencies
to assess all costs and benefits of available regulatory alternatives
and, if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public, health, and safety effects, distributive impacts, and equity).
A regulatory impact analysis must be prepared for major rules with
economically significant effects of $100 million or more in any one
year. This rule is not a ``significant regulatory action,'' under
Executive Order 12866 and was not reviewed by the Office of Management
and Budget (OMB).
Regulatory Flexibility Act
The Office of Personnel Management certifies that this rule will
not have a significant economic impact on a substantial number of small
entities.
Federalism
We have examined this rule in accordance with Executive Order
13132, Federalism, and have determined that this rule will not have any
negative impact on the rights, roles and responsibilities of State,
local, or tribal governments.
Civil Justice Reform
This regulation meets the applicable standard set forth in
Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any year and it will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
Congressional Review Act
The Congressional Review Act (5 U.S.C. 801 et seq.) requires rules
(as defined in 5 U.S.C. 804) to be submitted to Congress before taking
effect. OPM will submit to Congress and the Comptroller General of the
United States a report regarding the issuance of this action before its
effective date, as required by 5 U.S.C. 801. This is not a ``major
rule'' as defined by the Congressional Review Act (5 U.S.C. 804(2)).
Paperwork Reduction Act
Notwithstanding any other provision of law, no person is required
to respond to, nor shall any person be subject to a penalty for failure
to comply with a collection of information subject to the requirements
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA),
unless that collection of information displays a currently valid OMB
Control Number. Two currently approved collections are associated with
this rulemaking.
3206-0140 Representative Payee Application/Information
Necessary for a Competency Determination which is comprised of 2
forms--an application form and a separate form for a competency
determination. OPM is requesting, for OMB has approval, a change to the
competency determination form to add ``other licensed health
practitioner'' when identifying the medical information required for
the competency determination. An Emergency request will be published
shortly after this rule.
3206-0208--Representative Payee Survey This information
collection will not be impacted due to the changes in this rule.
The systems of record notice for both collections is: https://www.opm.gov/information-management/privacy-policy/sorn/opm-sorn-central-1-civil-service-retirement-and-insurance-records.pdf.
List of Subjects in 5 CFR Part 849
Claims, Disability benefits, Fraud, Pensions, Retirement.
Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.
0
For the reasons stated in the preamble, the Office of Personnel
Management adds 5 CFR part 849 to read as follows:
PART 849--REPRESENTATIVE PAYEES
Subpart A--General Provisions
Sec.
849.101 Applicability and purpose.
849.102 Definitions.
849.103 Implementing directives.
Subpart B--Determining Whether or Not Representative Payment Is
Appropriate
849.201 When to make payment to a representative payee.
849.202 Payment of annuity while finding a suitable representative
payee.
849.203 Information considered in determining whether to appoint a
representative payee.
Subpart C--Selection of a Representative Payee
849.301 Information considered in selecting a representative payee.
849.302 Order of preference in selecting a representative payee.
849.303 Individuals who may not serve as a representative payee.
849.304 Selecting a representative payee.
849.305 Notice of determination to select a representative payee.
Subpart D--Responsibility and Accountability of a Representative Payee
849.401 Responsibilities of a representative payee.
849.402 Use of payments.
849.403 Accountability of a representative payee.
Subpart E--Misuse of Annuity by a Representative Payee
849.501 Misuse of benefits by a representative payee.
849.502 Liability for misused funds.
Subpart F--Changes to the Representative Payee
849.601 When a new representative payee will be selected.
849.602 When representative payments will be stopped.
849.603 Transfer of conserved or accumulated funds.
Authority: 5 U.S.C. 8331; 5 U.S.C. 8345(e)-(f); 5 U.S.C. 8345a;
5 U.S.C. 8401; 5 U.S.C. 8461; 5 U.S.C. 8466(c)-(d); 5 U.S.C. 8466a.
Subpart A--General Provisions
Sec. 849.101 Applicability and purpose.
This part contains regulations of the Office of Personnel
Management (OPM) to implement the provisions 5 U.S.C. 8345(e)-(f),
8345a, 8466(c)-(d), and 8466a regarding payment of an annuity to a
representative payee. This part establishes the criteria OPM uses to
determine if representative payments are appropriate, the information
OPM uses to select a representative payee, the responsibilities of a
representative payee, the accountability of a representative payee, the
limitations on the appointment of a representative payee, and the
definition of and penalty for misuse of benefits by the representative
payee.
Sec. 849.102 Definitions.
As used in this part:
Agency means the Office of Personnel Management (OPM).
CSRS means the Civil Service Retirement System as described in
subchapter III of chapter 83 of title 5, United States Code.
FERS means the Federal Employees' Retirement System as described in
chapter 84 of title 5, United States Code.
Misuse of benefits means the embezzlement or conversion of all or
any part of the amount received by the
[[Page 57013]]
representative payee for a use other than for the use and benefit of
the minor or individual on whose behalf such payments were received.
Physician and practitioner have the same meaning given these terms
in Sec. 339.104 of this chapter.
Representative payee means a person, who is at least 18 years of
age, or an organization designated to receive annuity payments on
behalf of a minor or an individual mentally incompetent or under other
legal disability.
Sec. 849.103 Implementing directives.
The Director may prescribe, in the form he or she deems
appropriate, such detailed procedures as are necessary to carry out the
purpose of this part.
Subpart B--Determining Whether or Not Representative Payment is
Appropriate
Sec. 849.201 When to make payment to a representative payee.
The agency will make payment to a representative payee--
(a) If payments are due to a minor under the age of 18; or
(b) If payments are due to an annuitant or survivor who is mentally
incompetent or under other legal disability; or
(c) If payments are due to an annuitant when the annuitant is
physically or mentally incapable of managing or directing the
management of his or her benefit.
Sec. 849.202 Payment of annuity while finding a suitable
representative payee.
(a) Annuity payments will be made directly to the annuitant or
survivor annuitant while a suitable representative payee is located,
unless the agency determines that direct payment would cause
substantial harm to the individual.
(b) Substantial harm exists if both of the following conditions
exist:
(1) Direct payment of benefits can be expected to cause serious
physical or mental injury to the individual; and
(2) The potential effect of the injury outweighs the effect of
having no income to meet the basic needs of the individual.
(c) If the agency determines that direct payment of benefits would
cause substantial harm to the annuitant, annuity payments may be
deferred (in the case of initial entitlement to benefits) or suspended
(in the case of existing entitlement to benefits) until such time as a
representative payee is appointed.
(d) Annuity payments will commence or resume as soon as practicable
and will include all retroactive payments due to be paid.
Sec. 849.203 Information considered in determining whether to appoint
a representative payee.
In determining whether to appoint a representative payee, the
agency will consider the following information:
(a) Evidence of legal guardianship or other court determinations.
Evidence of the appointment of a legal guardian or other person legally
vested with the care of the individual or estate of an incompetent or a
minor shall be a certified copy of the court's determination.
(b) Medical evidence. The agency will use medical evidence to help
determine whether an annuitant is capable of managing or directing the
management of benefit payments. For example, a statement by a physician
or other licensed health practitioner, based upon his or her recent
examination of the annuitant and his or her knowledge of the
annuitant's present condition, will be used in the agency's
determination, if it includes information concerning the nature of the
annuitant's illness or disability, the annuitant's chances for
recovery, and the opinion of the physician or other licensed health
practitioner as to whether the annuitant is able to manage or direct
the management of benefit payments.
(c) Other evidence. The agency may also require statements of
relatives, friends, or other people in a position to know and observe
the annuitant, which contain information helpful to the agency in
deciding whether the annuitant is able to manage or direct the
management of benefit payments.
Subpart C--Selection of a Representative Payee
Sec. 849.301 Information considered in selecting a representative
payee.
The goal in selecting a payee is to select the person,
organization, or institution that will best serve the interest of the
annuitant. In making the selection, the agency considers--
(a) The age of the representative payee applicant. An individual
must be over the age of 18 to serve as a representative payee, except
as listed in Sec. 849.303(a);
(b) The relationship of the person, organization, or institution to
the annuitant;
(c) Legal authority, in the form of conservatorship or
guardianship, that the person, organization, or institution has to act
on behalf of the annuitant;
(d) The amount of concern that the person or organization shows in
the annuitant;
(e) Whether the potential payee has custody of the annuitant;
(f) Whether the potential payee is in a position to know of and
look after the needs of the annuitant;
(g) Whether the representative payee applicant is currently
serving, or has previously served, as a representative payee for other
annuitants; and
(h) The potential representative payee's criminal history.
Sec. 849.302 Order of preference in selecting a representative payee.
As a guide in selecting a representative payee, categories of
preferred payees are set out in paragraphs (a) through (e) of this
section. The primary concern of the agency is to select the payee who
will best serve the annuitant's interest. The preferences, in
descending order of importance, are:
(a) A legal conservator, guardian, spouse, or other relative who
has custody or guardianship of the annuitant or who demonstrates strong
concern for the personal welfare of the annuitant;
(b) A friend or neighbor who has custody or guardianship of the
annuitant or demonstrates strong concern for the personal welfare of
the annuitant;
(c) A public or nonprofit agency or institution having custody or
guardianship of the annuitant;
(d) A private institution operated for profit and licensed under
State law, which has custody or guardianship of the annuitant; and
(e) Persons other than those listed in paragraphs (a) through (d)
of this section who are qualified to carry out the responsibilities of
a representative payee and who are able and willing to serve as a payee
for an annuitant; e.g., members of community groups or organizations
who volunteer to serve as representative payee for an annuitant.
Sec. 849.303 Individuals who may not serve as a representative payee.
A representative payee applicant may not serve as a representative
payee if he or she:
(a) Is under the age of 18, unless he or she is the custodial
parent of the minor child applying for or receiving the annuity;
(b) Is found by a court to be incompetent or receives benefits
under title II or title XVI of the Social Security Act through a
representative payee or receives a retirement annuity pursuant to CSRS
or FERS through a representative payee;
(c) Has previously served as a representative payee and has been
[[Page 57014]]
found by a court of competent jurisdiction to have misused benefits;
(d) Has been convicted of a violation of:
(1) 5 U.S.C. 8345a or 8466a;
(2) Section 208 or 1632 of the Social Security Act (42 U.S.C. 408,
1383a); or
(3) 38 U.S.C 6101; or
(e) Has been convicted of an offense resulting in imprisonment for
more than one year. The agency may make exception to the prohibition in
this paragraph (e) if the nature of the conviction is such that
selection of the applicant poses no risk to the annuitant and the
exception is in the best interest of the annuitant.
Sec. 849.304 Selecting a representative payee.
Before selecting an individual or organization to serve as a
representative payee, the agency will conduct an investigation. The
investigation will:
(a) Require the applicant to submit documented proof of identity.
(b) Verify the applicant's social security number.
(c) Conduct a background check on the applicant to determine if the
applicant has been convicted of any crimes as defined in Sec.
849.303(d) or (e).
(d) Determine if the applicant has previously served as a
representative payee and if any previous appointments as representative
payee were revoked or terminated due to misuse.
Sec. 849.305 Notice of the determination to select a representative
payee.
(a) If the agency determines that the annuitant requires a
representative payee due to mental incompetence or other legal
disability or is physically or mentally unable to manage or direct the
management of his or her annuity payments, the agency will issue a
written decision to the annuitant. The decision will include a
statement of the findings and determinations; specifically, the
individual or organization named as the representative payee, and an
explanation of the right to appeal the decision under Sec. Sec.
831.110 and 841.307 of this chapter. If the annuitant appeals the
decision, the agency will continue to make direct payments to the
annuitant until the due process rights have been exhausted.
(b) A decision by the agency to not select an individual or
organization as a representative payee is not subject to the due
process procedures described in 5 U.S.C. 8347(d) and 8461(e).
Subpart D--Responsibility and Accountability of a Representative
Payee
Sec. 849.401 Responsibilities of a representative payee.
(a) A representative payee shall, subject to review by the agency
and subject to such requirements as it may periodically prescribe,
apply the payments made on behalf of the annuitant only for the use and
benefit of such annuitant, and in a manner or purpose that is in the
best interest of the annuitant.
(b) A representative payee shall notify the agency of any event
that will affect the amount of benefits the annuitant receives or the
right of the annuitant to receive benefits.
(c) A representative payee shall notify the agency of any change in
circumstances that would affect performance of the payee's
responsibilities.
(d) A representative payee shall keep the annuity paid to him or
her on behalf of the annuitant separate from his or her own money in an
account that shows that the annuitant is still the owner of the funds.
The applicant must show proof of this account when applying to be the
representative payee and use this account for direct deposit.
Exceptions to this paragraph (d) are joint accounts for spouses, when
one spouse applies to be representative payee for the other spouse and
they already have an existing joint account.
(e) Any interest earned on the annuity will be the annuitant's
property.
(f) A representative payee shall respond to requests, regarding the
use of annuity payments, from OPM within a specified period of time.
Sec. 849.402 Use of payments.
(a) Current maintenance. Payments certified to a representative
payee on behalf of an annuitant shall be considered as having been
applied for the use and benefit of the annuitant when they are used for
the annuitant's current maintenance. Current maintenance includes costs
incurred in obtaining food, shelter, clothing, medical care, and
personal comfort items.
(b) Institutional care. If an annuitant is receiving care in a
Federal, state, or private institution because of mental or physical
incapacity, current maintenance includes the customary charges made by
the institution in providing care and maintenance, as well as
expenditures for those items which will aid in the annuitant's recovery
or release from the institution or expenses for personal needs which
will improve the annuitant's conditions while in the institution.
(c) Support of legal dependents. If the current maintenance needs
of the annuitant are met, the representative payee may use part of the
payments for the support of the annuitant's legally dependent spouse,
child, and/or parent.
(d) Claims of creditors. A representative payee may satisfy debts
to creditors out of present benefit payments only if the current and
reasonably foreseeable needs of the annuitant are met.
(e) Conservation and investment. After the representative payee has
used the annuity payments consistent with the rules in paragraphs (a)
through (d) of this section, any remaining annuity shall be conserved
or invested on behalf of the annuitant. Any investment must show
clearly that the representative payee holds the property in trust for
the annuitant.
Sec. 849.403 Accountability of a representative payee.
(a) An individual, or institution, to whom payments are made as
representative payee on behalf of an annuitant is accountable for the
use of the payments and shall submit a written report in such form and
at such times as the agency may require, accounting for the payments
certified to him or her on behalf of the annuitant.
(b) If, however, such payee is a court-appointed fiduciary and, as
such, is required to make an annual accounting to the court, a true
copy of each such account filed with the court may be submitted in lieu
of the accounting form prescribed by the agency.
(c) If any representative payee fails to submit the required
accounting within the specified period of time after it is requested,
no further payments shall be made to the representative payee on behalf
of the annuitant unless for good cause shown, the default of the
representative payee is excused by the agency and the required
accounting is thereafter submitted.
(d) At any time after the agency has selected a representative
payee, the agency may ask such payee to submit information showing a
continuing relationship to the annuitant and a continuing
responsibility for the care of the annuitant. If the representative
payee does not give the agency the requested information within the
specified period of time, the agency may stop paying such payee unless
the agency determines that the payee had a good reason for not
complying with the request, and the agency receives the information
requested.
[[Page 57015]]
Subpart E--Misuse of Annuity by a Representative Payee
Sec. 849.501 Misuse of benefits by a representative payee.
(a) It is unlawful for a representative payee to misuse the
payments received on behalf of an annuitant. For purposes of this
subpart, misuse of benefits by a representative payee occurs in any
case in which the representative payee receives payment on behalf of an
annuitant and embezzles or converts such payment, or any part thereof,
to a use other than for the use and benefit of the annuitant.
(b) The penalty for a representative payee found to be in violation
of paragraph (a) of this section is a fine, imprisonment for not more
than 5 years, or both.
(c) If the agency determines that a representative payee has
misused any payments as described in paragraph (a) of this section, the
agency will promptly revoke the certification for payment of benefits
to the representative payee, and will make payment to an alternative
representative payee or, if the interest of the annuitant would be
served thereby, to the annuitant.
(d) The agency will make the annuitant whole by repaying any
annuity that was misused by the representative payee once the misused
benefits have been repaid to the agency by the representative payee.
Sec. 849.502 Liability for misused funds.
(a) A representative payee who misuses benefits, as determined in
Sec. 849.501(a), is responsible for repayment of the misused benefits.
(b) OPM will seek restitution from the former representative payee.
Subpart F--Changes of the Representative Payee
Sec. 849.601 When a new representative payee will be selected.
(a) When the agency learns that the interests of the annuitant are
not served by continuing payment to the present representative payee or
that the present representative payee is no longer able or willing to
carry out the payee responsibilities, the agency will undertake to find
a new representative payee.
(b) The agency will select a new representative payee if the agency
finds a preferred payee or if the present payee:
(1) Has been found by the agency or a court of competent
jurisdiction to have misused the benefits;
(2) Has not used the benefit payments on the annuitant's behalf in
accordance with the rules in this part;
(3) Has not carried out the other responsibilities described in
this subpart;
(4) Dies;
(5) No longer wishes to be the representative payee;
(6) Is unable to manage the benefit payments; or
(7) Fails to cooperate, within a reasonable time, in providing
evidence, accounting, or other information requested by the agency.
(c) The agency may suspend payment as explained in Sec. 849.202(c)
if we determine that making direct payment to the annuitant would cause
substantial harm. Payments, including all retroactive amounts due, will
resume once a representative payee is located.
Sec. 849.602 When representative payments will be stopped.
If an annuitant demonstrates that he or she is mentally and
physically able to manage or direct the management of benefit payments,
the agency will make direct payment to the annuitant. Information which
the annuitant may give to the agency to support his or her request for
direct payment includes, but is not limited to, the following:
(a) A physician's or other licensed health practitioner's statement
regarding the annuitant's condition, or a statement by a medical
officer of the institution where the annuitant is or was confined,
showing that the annuitant is able to manage or direct the management
of his or her funds;
(b) A certified copy of a court order restoring the annuitant's
rights in a case where an annuitant was adjudged legally incompetent;
or
(c) Other evidence which establishes the annuitant's ability to
manage or direct the management of benefits.
Sec. 849.603 Transfer of conserved or accumulated funds.
A representative payee who has conserved or invested annuity
payments shall transfer these funds and any interest earned from the
invested funds to either a successor payee, to the annuitant, or to the
agency as we will specify. If the funds and the earned interest are
returned to the agency, we will recertify them to the successor
representative payee or to the annuitant.
[FR Doc. 2021-22282 Filed 10-13-21; 8:45 am]
BILLING CODE 6325-38-P