Legal Services for Homeless Veterans and Veterans At-Risk for Homelessness Grant Program

<RULE> DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Part 79</CFR> <RIN>RIN 2900-AR33</RIN> <SUBJECT>Legal Services for Homeless Veterans and Veterans At-Risk for Homelessness Grant Program</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) adopts as final, with changes, an interim final rule (IFR) to implement a new authority requiring VA to award grants to eligible entities that will provide certain legal services for homeless veterans and veterans at risk for homelessness. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> This rule is effective December 13, 2024. </DATES> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Madolyn Gingell, National Coordinator, Legal Services for Veterans, Veterans Justice Programs, Clinical Services, Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Ave. NW, Washington, DC 20420, (239) 223-4681. (This is not a toll-free telephone number.) </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> In an IFR published in the <E T="04">Federal Register</E> (FR) on June 1, 2022, (87 FR 33025), VA established, in new part 79 of title 38, Code of Federal Regulations (CFR), the Legal Services for Homeless Veterans and Veterans At-Risk for Homelessness Grant Program, required by section 2022A of title 38, United States Code (U.S.C.). VA provided a 60-day comment period, which ended on August 1, 2022. VA received 12 comments, which are discussed in further detail below. Based on the comments, VA is making changes to part 79, as explained in more detail below. <HD SOURCE="HD1">Comments</HD> <HD SOURCE="HD2">Definition of Veteran</HD> Two commenters suggested VA revise its definition of veteran in 38 CFR 79.5, which adopts the definition of veteran in 38 U.S.C. 101(2). Section 101(2) defines veteran as a person who served in the active military, naval, air, or space service, and who was discharged or released therefrom under conditions other than dishonorable. These commenters were concerned that the definition is too limited and would exclude former servicemembers who need or would benefit from the legal assistance provided under this grant program and who this program was designed to serve (that is, as described by the commenters, those who need assistance with discharge upgrades). Instead of using the definition of veteran in 38 U.S.C. 101, one of these commenters recommended VA use the definition of veteran in 38 U.S.C. 2002(b) (which is applicable to VA benefits for homeless veterans) or in the alternative, use a more inclusive definition. The definition of veteran in 38 U.S.C. 2002(b) is used for purposes of sections 2011, 2012, 2013, 2044, 2061 of title 38, as well as 42 U.S.C. 1437f(o)(19)(D). Sections 2011, 2012, 2013, 2044, and 2061 apply to VA benefits for homeless veterans such as the supportive services for veteran families grant program and the homeless providers grant and per diem program. Section 1437(o)(19)(D) of 42 U.S.C. authorizes rental vouchers for certain eligible homeless veterans. The definition of veteran in 38 U.S.C. 2002 defines veteran to mean a person who served in the active military, naval, air, or space service, regardless of length of service, and who was discharged or released therefrom, and excludes a person who received a dishonorable discharge from the Armed Forces; or was discharged or dismissed from the Armed Forces by reason of the sentence of a general court-martial. We acknowledge that the current definition of veteran in 38 CFR 79.5 limits those individuals who are eligible for legal services under the grant program, including legal services relating to requests to upgrade the characterization of a discharge. However, we are unable to revise the definition as this commenter recommends ( <E T="03">e.g.,</E> by using the 38 U.S.C. 2002(b) definition of veteran or a more inclusive definition). Section 2022A does not define veteran. Title 38 has already provided a definition for veteran in section 101(2). Without indicating an alternate definition for the term in statute, Congress's use of “veteran” in section 2022A can only lead VA to surmise that it intended the legal services enumerated in section 2022A to be provided to veterans who meet the requirements of section 101(2), as well as other criteria for being homeless or at risk for homelessness. Thus, we must use the definition of veteran in section 101 rather than the definition in section 2002(b) or a more inclusive definition. Furthermore, section 2002(b) explicitly limits its applicability to specific sections in chapter 20 (for example, sections 2011, 2012, 2013, 2044, and 2061) and does not include section 2022A. Given that Congress remained silent on the subject, “veteran” in section 2022A must be read as using the available definition in section 101(2). Short of future statutory change, the definition of veteran in 38 U.S.C. 2002(b) does not apply to this grant program authorized by 2022A. We make no changes to the definition of veteran based on this comment. The other commenter recommended that VA define veteran in the same way as the U.S. Interagency Council on Homelessness, which defines veteran as all individuals who served in the military regardless of the length of service or their discharge status. In defining veteran, section 101(2) refers to a person who was discharged or released therefrom under conditions other than dishonorable. This excludes those who received a dishonorable discharge from the Armed Forces or who have been found by VA to have been discharged under dishonorable conditions. Thus, those individuals would be ineligible to receive services provided through this legal services grant program since we are applying the definition of veteran under section 101(2). Since we must use that definition for purposes of this grant program for the reasons previously explained, we are unable to remove the restrictions on discharge status in the section 101(2) definition. We are also unable to remove the length of service requirements as those set forth in 38 U.S.C. 5303A apply to this grant program. These requirements apply to the administration of VA benefits and services unless otherwise explicitly made inapplicable. See 38 U.S.C. 5303A(a) (“Notwithstanding any other provision of law, any requirements for eligibility for or entitlement to any benefit under this title or any other law administered by the Secretary that are based on the length of active duty served by a person who initially enters such service after September 7, 1980, shall be exclusively as prescribed in this title.”) and 5303A(b)(3). Section 2022A is not excluded from the length of service requirements in section 5303A(b)(3). Moreover, section 2022A did not explicitly exclude eligible veterans from these length of service requirements. Thus, section 2022A must be read as requiring the length of service requirements described in 38 U.S.C. 5303A. We make no changes to the definition of veteran based on this comment. <HD SOURCE="HD2">Eligible Veterans and 38 CFR 79.55</HD> One commenter stated that grantees should be tasked with establishing their own criteria for eligibility and the methods used to confirm and document eligibility under § 79.15. This commenter opined that grantees should establish their own criteria for determining eligibility and should only have to determine it at the time the veteran engages with them, particularly because requiring grantees to recertify eligibility after intake may cause ethical issues for the grantee and result in frustration, hardship, and damages to the veteran being served by that grantee. This same commenter also suggested that if the veteran is eligible at the time of intake, the legal services should continue until the legal issue is completed. VA requires grantees verify and document a veteran's eligibility for legal services prior to providing legal services. See § 79.55(a)(1). VA also requires that services continue to be provided through completion of the legal services so long as the participant continues to be eligible and if, at any point, the grantee finds the participant is ineligible, they must document such ineligibility and provide the individual with information on other available programs/resources or provide a referral. See § 79.55(a)(2) and (3). Because the statutory authority, 38 U.S.C. 2022A, is clear about eligibility for legal services, as further set forth in 38 CFR 79.15, VA does not believe it would be appropriate for grantees to establish their own eligibility criteria, which could vary and lack consistency among grantees. This could lead to grantees providing services to veterans who are not actually eligible pursuant to VA's authority and therefore would place an undue burden on VA to conduct an independent determination of each grantee's eligibility criteria to ensure it is consistent and does not exceed the bounds of VA's authority. In addition, this could lead to disparate treatment of veterans as grantees could otherwise set more restrictive or broad criteria than others. In such instances, eligibility for legal services would depend on the organization from which veterans sought services. To ensure compliance with the law and that veterans are treated the same for purposes of eligibility for legal services provided under this grant program, VA believes it is appropriate to have the same eligibility criteria for all veterans rather than have grantees establish their own. For these same reasons, VA will provide grantees with various methods that can be used to determine eligibility. Such information will be included in a program guide that will be provided to grantees. The program guide is the appropriate location for such information rather than regulation since the methods ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 56k characters. 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