Improving Accreditation Process and Strengthening Legal Education Requirements for Accredited Agents and Attorneys

DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Part 14</CFR> <RIN>RIN 2900-AR94</RIN> <SUBJECT>Improving Accreditation Process and Strengthening Legal Education Requirements for Accredited Agents and Attorneys</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Veterans Affairs (VA) is proposing to amend its regulations concerning accreditation of agents (also referred to as “claims agents”) and attorneys authorized to assist claimants with the preparation presentation and prosecution of claims for VA benefits to strengthen initial and continuing legal education (CLE) requirements for accredited agents and attorneys and to improve the efficiency of VA's process of accrediting agents and attorneys and the administration of the accreditation program. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before December 10, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Comments must be submitted through <E T="03">www.regulations.gov.</E> Except as provided below, comments received before the close of the comment period will be available at <E T="03">www.regulations.gov</E> for public viewing, inspection, or copying, including any personally identifiable or confidential business information that is included in a comment. We post the comments received before the close of the comment period on <E T="03">www.regulations.gov</E> as soon as possible after they have been received. VA will not post on <E T="03">Regulations.gov</E> public comments that make threats to individuals or institutions or suggest that the commenter will take actions to harm an individual. VA encourages individuals not to submit duplicative comments; however, we will post comments from multiple unique commenters even if the content is identical or nearly identical to other comments. Any public comment received after the comment period's closing date is considered late and will not be considered in the final rulemaking. In accordance with the Providing Accountability Through Transparency Act of 2023, a plain language summary (not more than 100 words in length) of this proposed rule is available at <E T="03">www.regulations.gov,</E> under RIN 2900-AR94. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Jonathan Taylor, Office of the General Counsel, (022D), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-7699. (This is not a toll-free telephone number.) </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> Under 38 U.S.C. chapter 59, the Secretary of Veterans Affairs has authority to recognize attorneys, agents, and Veterans Service Organization (VSO) representatives for the preparation, presentation, and prosecution of benefit claims, regulate fees charged by accredited attorneys and agents, and prescribe the rules of conduct applicable while providing claims assistance. More specifically, 38 U.S.C. 5904(a)(2) requires the Secretary of Veterans Affairs to establish regulations governing the qualifications and standards of conduct for agents and attorneys. Section 5904(a)(2) sets forth minimum qualifications and standards to be included in VA regulations, serving as a floor on top of which VA may prescribe additional conditions, qualifications, and standards of conduct. On May 22, 2008, following the enactment of the Veterans Benefits, Health Care, and Information Technology Act of 2006 (Pub. L. 109-461), VA published a final rule in the <E T="04">Federal Register</E> (73 FR 29852) that addressed accreditation of individuals, standards of conduct for all individuals authorized to assist claimants before VA, and attorneys' and agents' fees. That rule, in pertinent part, established the initial accreditation requirements for attorneys and agents as well as the ongoing CLE requirement in 38 CFR 14.629(b). Under the current regulation, as part of their initial accreditation requirements, attorneys must have a law degree, be a member in good standing of a State bar, and during the first 12-month period following initial accreditation, complete 3 hours of State-bar approved CLE training covering Veterans benefits law and procedure. As part of their initial accreditation requirements, agents must pass a written examination administered by VA, which covers a wide range of topics covering the applicant's knowledge of VA benefits and the VA claims adjudication process, and complete the same CLE training as attorneys. Both agents and attorneys must complete 3 hours of additional CLE training every 2 years. This rulemaking would require applicants seeking accreditation as an agent or attorney to complete 3 hours of qualifying CLE before they become accredited and require accredited agents and attorneys to annually complete 3 hours of qualifying CLE. The intended effect of this proposed rule is to strengthen the current CLE requirements to ensure that attorneys and agents representing claimants and appellants for VA benefits are better qualified to provide such representation. Since the 2008 final rule, VA's Office of the General Counsel (OGC) has continued to develop and fine-tune the accreditation process and the monitoring of accredited representatives. OGC's experience in administering the accreditation program over the past 16 years has highlighted the need to bolster the CLE requirements for accredited agents and attorneys as well as ensure that these individuals have already received CLE regarding Veterans law at the time of their accreditation. In its August 2013 report, “VA Benefits: Improvements Needed to Ensure Claimants Receive Appropriate Representation,” GAO-13-643, the Government Accountability Office (GAO) concluded, among other things, that current VA regulations do not sufficiently ensure that accredited representatives have adequate program knowledge to effectively assist clients. GAO recommended that VA “explore options and take steps to strengthen initial and continuing knowledge requirements for accreditation for all types of representatives.” In response to and following our own independent consideration of this recommendation, we are proposing to require applicants for accreditation to take 3 hours of CLE before applying for accreditation, and accredited attorneys and agents to take an additional 3 hours of CLE annually. This proposed rule would amend 38 CFR 14.629(b)(1)(iii) to require applicants for accreditation to complete 3 hours of CLE within 6 months prior to submitting their application and amend 38 CFR 14.629(b)(1)(iv) to require that agents and attorneys complete an additional 3 hours of qualifying CLE on Veterans benefits law and procedure not later than 1 year from the date of initial accreditation and every 1 year thereafter. In addition, the proposed rule will specifically require that the initial CLE include instruction on the VA standards of conduct contained in 38 CFR 14.632. Section 14.629(b)(1)(iii) provides that the qualifying CLE attended taken during the first year after accreditation “at a minimum, must cover the following topics: representation before VA, claims procedures, basic eligibility for VA benefits, right to appeal, disability compensation (38 U.S.C. Chapter 11), dependency and indemnity compensation (38 U.S.C. Chapter 13), and pension (38 U.S.C. Chapter 15).” In revising this section, we propose to add a parenthetical explanation that the topic representation before VA includes the VA standards of conduct contained in 38 CFR 14.632. This proposed revision is not a substantive change, but rather a change to emphasize the importance of this topic for accredited individuals. Based on our experience in administering the accreditation program, we believe the proposed changes to § 14.629(b)(1)(iii) and (iv) would help ensure that claimants for VA benefits are represented by qualified individuals. The next proposed change would improve the administration of the accreditation program. Current VA regulations already impose various certification, notification, and self-reporting requirements on accredited agents and attorneys, either on an annual basis or within 30 days of certain specific events. VA believes that requiring accredited agents and attorneys to provide notice of changes in contact information is necessary to efficiently administer the accreditation program. Therefore, VA is proposing to add 38 CFR 14.629(b)(1)(v), requiring that agents and attorneys notify the Office of the General Counsel within 30 days, of any changes in contact information. To improve the efficiency of VA's process of accrediting agents and attorneys, VA is proposing to modify the information that it collects during the application process to include email addresses for character references. VA proposes to amend 38 CFR 14.629(b)(2)(viii) to add email addresses as part of the information necessary for the applicant's three character references. Additionally, VA proposes to eliminate requiring the phone numbers for the applicant's three character references. Next, VA is proposing two changes to more accurately reflect the accreditation process. First, VA is proposing to revise 38 CFR 14.629(b)(2)(v), the information that it collects about an applicant's mental health, to match the information requested on the application form and to clarify that this inquiry is focused on current conditions and disabilities. Current section 14.629(b)(2)(v) requires “[i]nformation concerning whether the applicant has ever been determined mentally incompetent or hospitalized as a result of a mental disease or disability, or is currently under treatment for a mental disease or disability”; however, the information requested on the application is whether the applicant has any condition or impairment (such as substance abuse, alcohol abuse, or a m ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 30k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━