Expanded Burial Benefits

<RULE> DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Part 3</CFR> <RIN>RIN 2900-AR69</RIN> <SUBJECT>Expanded Burial Benefits</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Veterans Affairs (VA) amends its adjudication regulations pertaining to burial benefits to conform to statutory changes enacted by the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 and the Burial Equity for Guards and Reserves Act of the Consolidated Appropriations Act, 2022. The conforming regulatory changes implement an expansion of the transportation benefit and provision of a single payment rate for non-service-connected burial allowances regardless of the location of a qualifying Veteran's death and coincide with the effective date for the statutory amendments (January 5, 2023). The conforming regulatory changes also implement the extension of the VA plot or interment allowance to Tribal organizations for interment of eligible Veterans on trust land owned by, or held in trust for, the Tribal organization and coincide with the effective date for the statutory amendments (March 15, 2022). VA also provides additional clarifying changes to its burial benefits regulations. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective October 25, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Eric Baltimore, Management and Program Analyst, Pension and Fiduciary Service (21PF), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 632-8863. (This is not a toll-free number.) </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> In a document published in the <E T="04">Federal Register</E> on September 25, 2023, at 88 FR 65641, VA proposed to amend its adjudication regulations pertaining to burial benefits to conform to recent statutory changes enacted by sections 2201 and 2202 of the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 (Pub. L. 116-315), and section 102(c) of Division CC (Burial Equity for Guards and Reserves Act) of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103). VA provided a 60-day public comment period, which ended on November 24, 2023, and received six comments in response to the notice of proposed rulemaking. All comments generally agreed with the amendments in the proposed rulemaking. One commenter stated: “I support the Department of Veterans Affairs proposed rule expanding burial benefits for veterans and their families. I urge the VA to finalize this rule as soon as possible.” Another commenter explained that “[t]his rule change makes sense and is the least we can do to honor our Veterans at the end of life.” VA appreciates these responses and will not make any changes based upon those comments. One commenter provided support for the proposed rule but addressed an area of improvement for non-service-connected burial benefits. This commenter highlighted the two-year time limit to submit a claim for non-service-connected burial benefits provided in proposed 38 CFR 3.1703(a)(1), which stated that “VA must receive a claim for the non-service-connected burial allowance for veterans described within § 3.1705(b), § 3.1706(b), or § 3.1708(b) no later than 2 years after the burial of the veteran.” This commenter further explained that “due to the relatively low numbers concerning veterans who currently take advantage of these benefits, the time limit on claims should be removed to ensure that more veterans' families receive this benefit and do not have to pay for the services themselves.” VA appreciates the commenter's concern; however, the time limit referenced in 38 CFR 3.1703 must adhere to the statutory limitations provided within 38 U.S.C. 2304. Section 2304 states that applications for payments under 38 U.S.C. 2303(a)(2)(B) and (C) must be filed within two years after the burial of the Veteran. Section 2303(a)(2)(B) refers to deceased Veterans who, at the time of non-service-connected death, were in receipt of service-connected disability compensation (or but for the receipt of retirement pay would have been entitled to such compensation) or were in receipt of pension. Section 2303(a)(2)(C) refers to deceased Veterans for whom the Secretary determines there is no next of kin or other person claiming the body and that there are not sufficient resources available to cover burial and funeral expenses. Aside from this two-year statutory time limit as implemented in 38 CFR 3.1703(a)(1), there are no other time limitations to file claims for burial benefits under 38 CFR part 3, subpart B. No substantive changes were made pursuant to this comment, as legislative action would be required to amend the two-year time limit. But in reviewing this comment, VA did discover a technical error in the proposed changes to 38 CFR 3.1703(a)(1), which VA corrects in this final rule by removing an erroneous cross-reference to 38 CFR 3.1706(b), as described below. Per 38 U.S.C. 2304, the two-year time limit to submit a claim for non-service-connected burial benefits applies to applications for payments under 38 U.S.C. 2303(a)(2)(B) and (C). This time limit does not apply to 38 U.S.C. 2303(a)(2)(A), which pertains to Veterans who die of a non-service-connected disability while hospitalized by VA ( <E T="03">i.e.,</E> in a VA facility as defined in 38 U.S.C. 1701(3) to which the deceased Veteran was properly admitted for hospital, nursing home, or domiciliary care under 38 U.S.C. 1710 or 1711(a), or in an institution at which the deceased Veteran was, at the time of death, receiving hospital care in accordance with 38 U.S.C. 1703A, 8111, and 8153, nursing home care under 38 U.S.C. 1720, or nursing home care for which payments are made under 38 U.S.C. 1741). VA's proposed changes to 38 CFR 3.1703(a)(1) included cross-references to 38 CFR 3.1705(b) and § 3.1708(b)—the implementing regulatory provisions for 38 U.S.C. 2303(a)(2)(B) and (C), respectively, for which 38 U.S.C. 2304's two-year time limit applies. However, VA erroneously proposed to also include a cross-reference to 38 CFR 3.1706(b), the implementing regulatory provision for 38 U.S.C. 2303(a)(2)(A), pertaining to Veterans who die of a non-service-connected disability while hospitalized by VA. Because 38 U.S.C. 2304's two-year time limit does not apply to 38 U.S.C. 2303(a)(2)(A), VA erred by proposing to include the corresponding regulatory provision, 38 CFR 3.1706(b), in 38 CFR 3.1703(a)(1)'s description of the circumstances in which the statutory two-year time limit applies. Accordingly, VA has removed the reference to 38 CFR 3.1706 in 38 CFR 3.1703(a)(1), as no time limit applies to a claim for the non-service-connected burial allowance for a Veteran who died while hospitalized by VA. Finally, VA makes one clarifying change to 38 CFR 3.1704 (Burial allowance based on service-connected death). VA revises paragraph (c)(2)'s reference to 38 CFR 3.1707 to specifically reference 38 CFR 3.1707(b), because a claim for the plot or interment allowance for service-connected death is payable under 38 CFR 3.1707(b) but is not payable under 38 CFR 3.1707(c). Under § 3.1707(c)(1), the plot or interment allowance payable based on burial in other than a State or Tribal veterans cemetery requires a veteran to be eligible for a burial allowance based on non-service-connected death under § 3.1705. In summary, VA adopts the proposed rule as final, except for the technical amendments to 38 CFR 3.1703 and 3.1704 as described above. <HD SOURCE="HD1">Executive Orders 12866, 13563 and 14094</HD> Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 (Executive Order on Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), and Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review). The Office of Information and Regulatory Affairs has determined that this rulemaking is a significant regulatory action under Executive Order 12866, as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at <E T="03">www.regulations.gov.</E> <HD SOURCE="HD1">Regulatory Flexibility Act</HD> The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). As this final rulemaking will expand and increase benefits, it will not have a significant economic impact on a substantial number of small entities as the benefits received by the entities entitled to them were found to be de minimis. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply. <HD SOURCE="HD1">Unfunded Mandates</HD> 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 exp ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 30k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━