`[Federal Register Volume 89, Number 219 (Wednesday, November 13, 2024)]
[Rules and Regulations]
[Pages 89494-89501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-25964]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 79

RIN 2900-AR33


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

AGENCY: Department of Veterans Affairs

ACTION: Final rule

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SUMMARY: 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.

DATES: This rule is effective December 13, 2024.

FOR FURTHER INFORMATION CONTACT: 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.)

SUPPLEMENTARY INFORMATION: In an IFR published in the Federal Register 
(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.

Comments

Definition of Veteran

    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.g., 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

[[Page 89495]]

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.

Eligible Veterans and 38 CFR 79.55

    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 Sec.  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 Sec.  
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 Sec.  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 that may be used to determine 
eligibility are subject to change.
    While we expect grantees to determine eligibility based on the 
criteria in Sec.  79.15 prior to the provision of legal services, we do 
not expect grantees to verify or confirm eligibility on a frequent, on-
going basis. However, if a grantee becomes aware that an individual was 
never eligible due to, for example, a military discharge as a result of 
general court-martial, but by mistake was initially determined 
eligible, we expect the grantee to take appropriate action by ending 
services and making appropriate referrals to other organizations that 
are able to assist the individual with legal services, in compliance 
with Sec.  79.55(a)(3). It was and is not our intent to have grantees 
take similar actions if an individual is initially found to be eligible 
for services but due to improvement in their housing situation, they 
may no longer be eligible under Sec.  79.15(a)(1). Because these 
individuals may continue to be at risk for homelessness under Sec.  
79.15(a)(2), we want grantees to continue to provide legal services to 
these individuals. For all participants, we expect legal services to 
continue to be provided through completion or as the need for such 
services comes to an end, so long as the individuals remain eligible 
for such services. See Sec.  79.55(a)(2).
    We do not make changes to the regulations based on these comments. 
However, this information will be included in the grant program guide 
and as part of technical assistance.
    Two commenters raised concerns about the definition of at risk for 
homelessness included in Sec.  79.15. The definition of at risk for 
homelessness means an individual who does not have sufficient resources 
or support networks, e.g., family, friends, faith-based or other social 
networks, immediately available to prevent them from moving to an 
emergency shelter or another place described in paragraph (1) of the 
definition of ``homeless'' in 24 CFR 576.2 and meets one or more of 
nine conditions set forth in 38 CFR 79.15(b)(1) through (9).
    It was suggested by both commenters that VA remove the requirement 
in Sec.  79.15(b)(3) that the veteran be notified in writing that their 
right to occupy their current housing or living situation will be 
terminated within 21 days after the application for assistance or add a 
period longer than 21 days. The commenter stated that this requirement 
causes undue confusion, added burden on staff, and that housing 
statutes and requirements often require landlords provide more than 21 
days' notice.
    As an initial matter, the language in Sec.  79.15(b)(3) is not a 
requirement that all veterans must meet to be determined at risk for 
homelessness. Instead, it is one of nine conditions, of which a veteran 
must meet only one. Thus, a veteran can meet the definition of at risk 
for homelessness if they meet one of those other eight conditions. We 
believe that if a veteran did not meet Sec.  79.15(b)(3) because they 
live in a place where more than 21 days' notice is required to 
terminate their right to occupy their current housing or living 
situation and they find themselves in such situation, they may very 
likely meet one of the other eight conditions. As we have largely 
adopted the definition of at risk

[[Page 89496]]

for homelessness from the Department of Housing and Urban Development's 
(HUD) definition of at risk for homelessness, including this specific 
requirement in Sec.  79.15(b)(3), we make no changes based on this 
comment as we defer to HUD's definition given they are the leading 
Federal agency on this subject matter. We acknowledge one difference in 
that 24 CFR 576.2 does include an income limitation. We chose to remove 
that limitation in 38 CFR 79.15(b) due to situations where a veteran 
earns an income beyond the limitation in 24 CFR 576.2(i) but is still 
unable to maintain housing because of a high cost of living where they 
reside. See 87 FR 33028. We still note that this definition is 
consistent with other VA grant programs that provide services to 
veterans at risk for homelessness. Thus, to be consistent with both HUD 
and VA's existing grant programs, we make no changes based on this 
comment. However, if we find that this criterion is a barrier for 
eligibility for services under this grant program, we will consider 
revising the criterion and make any such revisions in a future 
rulemaking.
    One of the commenters raised concerns about 38 CFR 79.15(b)(5) 
which excludes veterans residing in hotels or motels paid for by non-
profit organizations and government entities based on low income. This 
language in paragraph (b)(5) is consistent with HUD and VA's other 
grant programs focused on veterans at risk for homelessness. 
Additionally, the definition of at risk for homelessness provides nine 
separate ways to meet the definition, which is fairly broad. However, 
similar to the discussion on paragraph (b)(3) above, if we find that 
this criterion is a barrier for eligibility for services under this 
grant program, we will consider revising the criterion and make any 
such revisions in a future rulemaking.
    One commenter stated that it should be sufficient for veterans to 
only meet one of the criteria in Sec.  79.15(b)(1) through (9), rather 
than also having to meet the requirement in Sec.  79.15(b) that an 
individual does not have sufficient resources or support networks (for 
example, family, friends, faith-based or other social networks) 
immediately available to prevent them from moving to an emergency 
shelter or another place described in paragraph (1) of the definition 
of ``homeless'' in 24 CFR 576.2. This commenter suggested removing the 
latter criterion based on the assertion that it is subjective, hard to 
apply, and requires assessment of a veteran's resources. They also 
stated that it is irrelevant to a veteran's ability to access legal 
services or their need for legal help, as availability of resources 
does not mean they will have support.
    As discussed above, this language was included to be consistent 
with HUD and VA's other grant programs focused on veterans at risk for 
homelessness. We acknowledge that this criterion is subjective, which 
is beneficial to veterans as it allows grantees to look at the totality 
of a veteran's circumstances. However, we disagree that this criterion 
is hard to apply and requires assessment of a veteran's resources. 
Instead, this criterion requires a screening, rather than an in-depth 
analysis or assessment of the veteran's resources and finances. To 
assist in determining whether a veteran is at risk for homelessness for 
purposes of this grant program, we will make available to grantees a 
short screening tool. This tool will be similar to tools that have been 
utilized effectively by other VA homeless programs, but it will be 
modified for purposes of the definition of at risk for homelessness in 
part 79. As this criterion is consistently used and applied in other VA 
and HUD programs, we do not believe it is or should be hard to apply, 
especially as an in-depth analysis is not required and the 
determination on whether this criterion is met is a judgment call made 
by the grantee.
    We acknowledge and agree with the commenter that potential 
availability of resources to a veteran does not equate to support. 
However, we note that the requirement is only for the veteran to lack 
either ``sufficient resources or support networks'' to actually prevent 
homelessness or moving to an emergency shelter; the veteran need not 
lack both of those things. Even if a veteran's family member may have 
resources or support, this criterion would not necessarily presume that 
the veteran has the ability to access such resources or support. To 
continue to be consistent with HUD and VA's other programs, we do not 
make changes to this definition based on this comment.
    Another commenter recommended that services provided under this 
grant program be available to deported veterans with no income 
limitations, as they noted there are veterans and servicemembers who 
are not citizens, are at risk for homelessness, and may be deported.
    As an initial matter, we do not impose any income limitations to be 
eligible for legal services provided under this grant program. As 
described in Sec.  79.15, an individual is eligible for services under 
part 79 if they are a homeless veteran (defined consistent with 42 
U.S.C. 11302) or a veteran at risk for homelessness (defined consistent 
with 24 CFR 576.2). Section 11302 of 42 U.S.C. does not include any 
income limitations in its definition of homeless. As noted above, while 
24 CFR 576.2 does include an income limitation, we removed that 
limitation in 38 CFR 79.15(b) because VA recognized that there may be 
situations where a veteran earns an income beyond the limitation in 24 
CFR 576.2(i) but is still unable to maintain housing because of a high 
cost of living where they reside. See 87 FR 33028. Because part 79 does 
not include any income limitations for purposes of eligibility for 
legal services, we do not make any changes based on this part of the 
comment.
    As written, part 79 does not prohibit grantees from providing legal 
services, including immigration-specific legal services, to deported 
veterans or those veterans without U.S. citizenship who live in the 
United States who meet the eligibility criteria in Sec.  79.15. Part 79 
also does not require grantees to provide immigration-specific legal 
services, to deported veterans or those veterans without U.S. 
citizenship who meet the eligibility criteria in Sec.  79.15. We 
understand that relatively few potential grantees may have the capacity 
and experience to serve such individuals effectively in those 
circumstances. However, if a grantee is able to do so effectively and 
in a way that meets all other requirements imposed by this grant 
program, they would be permitted to do so. Thus, because the provision 
of legal services, including immigration-specific legal services, to 
deported veterans or those veterans without U.S. citizenship meeting 
the eligibility criteria in Sec.  79.15 would be at the discretion of 
the grantee, we would not regulate this and do not make any changes to 
part 79 based on this comment.
Eligible Entities
    One commenter inquired about whether two non-profits can partner 
for this grant program. We assume this commenter is inquiring as to 
whether two organizations can submit a joint grant application for this 
grant program. Consistent with how VA administers other grant programs, 
two organizations will not be able to submit a joint application for a 
legal services grant. However, an organization that is an eligible 
entity, as defined in part 79, and is awarded a grant may be the 
primary grantee and may work directly with a subcontractor to 
administer the grant. As part of the application process, grantees are 
expected to identify any subcontractors in their application. See 38 
CFR 79.25(a)(7). While we do not allow a joint application for two

[[Page 89497]]

primary grantees, we do not find it necessary to update the regulations 
in part 79 to clarify this point, especially as we have not done so in 
any of our other grant program regulations. This clarification will be 
further provided through technical assistance and in Frequently Asked 
Questions.

Legal Services

    One commenter recommended VA remove the word ``defense'' from 
criminal defense in the list of allowable legal services contained in 
Sec.  79.20. This commenter stated that use of defense may be 
misleading to non-criminal legal problems that provide legal services 
to address the removal of barriers to homelessness associated with 
interacting with the criminal justice system.
    The authorizing statute, 38 U.S.C. 2022A(d)(4), includes certain 
criminal defense legal services as part of this grant program. 
Consistent with section 2022A(d)(4), 38 CFR 79.20(d) states that legal 
services include those relating to criminal defense, including defense 
in matters symptomatic of homelessness, such as outstanding warrants, 
fines, driver's license revocation, and citations. To reduce recidivism 
and facilitate the overcoming of reentry obstacles in employment or 
housing, covered legal services relating to criminal defense also 
include legal assistance with requests to expunge or seal a criminal 
record.
    We are unclear what the commenter is referring to with regards to 
non-criminal legal problems that provide legal services to address the 
removal of barriers to homelessness associated with interacting with 
the criminal justice system. We included in our definition of legal 
services defense in matters symptomatic of homelessness, such as 
outstanding warrants, fines, driver's license revocation, and 
citations. We believe this covers those instances in which a veteran 
may be interacting with the criminal justice system but are considered 
non-criminal legal problems. However, based on this comment, we revise 
this language to include the word ``assistance'' to better clarify that 
these legal services are not restricted to only defense. We believe 
that this change is a logical outgrowth of the IFR and does not warrant 
an additional comment period because the change is directly related to 
a concern presented by a commenter and is otherwise within the scope of 
the IFR.
    We would not remove ``defense'' as suggested by the commenter since 
that would be inconsistent with our statutory authority for this 
program. Because we are making additional changes to Sec.  79.20(d) as 
subsequently explained, all of the revisions to Sec.  79.20(d), 
including the word ``assistance'', are described in one consolidated 
revision further below.
    This same commenter also recommended VA clarify that criminal 
defense includes the resolution of criminal matters symptomatic of 
homelessness either at any time during a criminal proceeding or post-
adjudication and sentencing.
    We understand the commenter's concern and note that Sec.  79.20(d) 
includes defense in matters symptomatic of homelessness, such as 
outstanding warrants, fines, and driver's license revocation, to reduce 
recidivism and facilitate the overcoming of reentry obstacles in 
employment or housing. However, similar to the changes discussed 
directly above, based on this comment, we revise Sec.  79.20(d) to 
indicate that resolution of matters symptomatic of homelessness is 
included as part of the legal services that may be provided under this 
grant program. We believe revising the language to include resolution 
is appropriate, would better clarify that these legal services are not 
restricted to only defense, and would cover resolution of criminal 
matters symptomatic of homelessness either at any time during a 
criminal proceeding or post-adjudication and sentencing. We believe 
that this change is a logical outgrowth of the IFR and does not warrant 
an additional comment period because the change is directly related to 
a concern presented by a commenter and is otherwise within the scope of 
the IFR.
    Because Sec.  79.20(d) places no limits on when in criminal 
proceedings legal assistance may be provided, we decline to add 
language to clarify that legal services under paragraph (d) may be 
provided at any time during a criminal proceeding or post-adjudication 
and sentencing.
    Based on the previously described changes to Sec.  79.20(d) to 
include the word ``assistance'' and those described in a preceding 
paragraph, Sec.  79.20(d) is revised to state the following: Legal 
services relating to criminal defense, including defense and resolution 
of, and assistance with, matters symptomatic of homelessness, such as 
outstanding warrants, fines, driver's license revocation, and 
citations. To reduce recidivism and facilitate the overcoming of 
reentry obstacles in employment or housing, covered legal services 
relating to criminal defense also include legal assistance with 
requests to expunge or seal a criminal record.
    We make no further changes based on these comments.
    Another commenter suggested VA expand the discharge upgrade legal 
services under Sec.  79.20 to include those under 10 U.S.C. 1552. This 
commenter opined that limiting grantees to only serve those seeking 
discharges under 10 U.S.C. 1553 seems arbitrary, unfairly favors 
recent-era veterans, especially as it would require grantees to turn 
away clients who separated over 15 years ago and would limit a 
grantee's ability to help appeal wrongful denials.
    As an initial matter, we note that the authorizing statute for this 
grant program includes as legal services those relating to requests to 
upgrade the characterization of a discharge or dismissal of a former 
member of the Armed Forces under 10 U.S.C. 1553. Such requests are 
reviewed by a Discharge Review Board (DRB). Only former members of the 
Armed Services who were discharged or dismissed within the prior 15 
years and are appealing their discharge or dismissal (other than one 
given by sentence of a General Court Martial) are eligible to submit 
their request for an upgrade to a DRB. All other requests for 
corrections of military records or for an upgrade to the 
characterization of a discharge or dismissal of a former member of the 
Armed Forces who was discharged or dismissed more than 15 years prior 
may be reviewed and corrected pursuant to 10 U.S.C. 1552. Section 1552 
allows former members of the Armed Forces to apply to the Board for 
Correction of Military Records (BCMR) for a correction of the former 
member's military record when it is considered necessary to correct an 
error or remove an injustice. BCMRs can upgrade any character of 
discharge or dismissal; change any reason for discharge or dismissal, 
re-enlistment codes, the date of discharge or dismissal; remove 
mistakes in a former member's record; and add or remove a note of 
medical retirement.
    While Congress did not explicitly include 10 U.S.C. 1552 in the 
list of legal services authorized under 38 U.S.C. 2022A, based on the 
comment above, we believe it is appropriate to include as legal 
services those relating to requests to correct the military record of a 
former member of the Armed Forces under 10 U.S.C. 1552. We have the 
authority to do so pursuant to our discretionary authority in 38 U.S.C. 
2022A(d)(6), which explains that grants under this section shall be 
used to provide homeless veterans and veterans at risk for homelessness 
such other legal services as the Secretary determines appropriate. We 
use that authority to

[[Page 89498]]

add new paragraph (f)(6) to Sec.  79.20 to include legal services 
relating to requests for corrections to military records of a former 
member of the Armed Forces under 10 U.S.C. 1552. We believe this is an 
appropriate legal service to add under this grant program due to the 
language in 38 U.S.C. 1553 that limits requests for upgrades to those 
who have been discharged or dismissed within the prior 15 years. We 
believe it is appropriate to add legal assistance with section 1552 
requests so that those former members who were discharged or dismissed 
more than 15 years prior are able to receive legal assistance with 
their correction of military records or requests for upgrades, similar 
to those who were discharged or dismissed within the prior 15 years. 
This would allow grantees to assist eligible veterans with requests 
submitted to DRBs and BCMRs.
    We believe that this change is a logical outgrowth of the IFR and 
does not warrant an additional comment period because the change is 
directly related to a concern presented by a commenter and is otherwise 
within the scope of the IFR. Further, the IFR provided, in 38 CFR 
79.20, that covered legal services would include ``[o]ther covered 
legal services as determined appropriate by the Secretary,'' and this 
change merely reflects the exercise of that authority expressly stated 
in the IFR.
    We would not limit assistance with 10 U.S.C. 1552 requests to only 
requests for upgrades since the statute is broader than requests for 
upgrades. Former members of the Armed Forces, regardless of when they 
were discharged or dismissed, are able to request corrections to other 
military records under section 1552, and we would allow grantees to use 
funds to provide assistance with such requests. We make no further 
changes based on this comment.

Applications (38 CFR 79.25) and Scoring Criteria (38 CFR 79.35)

    Another commenter asked what documentation is needed as proof of 
previous services rendered. We assume this commenter is referring to 
the language in the sections of part 79 concerning applications for 
legal services grants (Sec.  79.25) and scoring criteria for legal 
services grant applicants (Sec.  79.35). Section 79.25(a)(6) explains 
that a complete legal services grant application package includes 
documentation describing the experience of the applicant and any 
identified subcontractors in providing legal services to eligible 
veterans. Section 79.35(a)(2)(ii) explains that as part of scoring 
applications, VA will use criteria including whether the applicant, and 
any identified subcontractors, have experience providing legal 
services, including providing such services to veterans, or individuals 
who are homeless, at risk for homelessness or who have very low income.
    As part of the application process, we do not require specific 
documentation to be provided regarding prior experience. However, as 
part of the application, applicants can provide information and 
documents to support their prior experience, which we will review when 
scoring applications. For example, in the application form, we included 
a section in which applicants can explain their prior experience. 
Additionally, we will review such documents as memoranda of 
understanding, memoranda of agreement, staff resumes, position 
descriptions, and any other documents the applicant submits as part of 
their application.
    Since we do not require any specific documentation to support an 
applicant's prior experience, we do not revise these regulations.

General Operation Requirements

    Another commenter recommended VA eliminate the requirement in Sec.  
79.55(d)(1) that grantees disclose VA as a funding source, as it could 
cause confusion and create a barrier to legal services. While we 
understand the commenter's concerns, this is standard practice for our 
grant programs (and statutorily required for some of our grant 
programs), and we believe that disclosing this is important information 
that eligible veterans should be aware of, particularly as this can 
positively impact their relationship and interactions with VA. Thus, we 
do not make any changes based on this comment.

Other Comments

    One commenter recommended that the NOFO state that a pass-through 
entity is an eligible entity. This same commenter also recommended VA 
have a central prime awardee and suggested VA provide a higher cap 
(more than $150k) on the amount of funds that can be awarded to those 
entities applying as pass-through entities.
    While the comment concerns the NOFO, and thus is considered outside 
the scope of this rulemaking, we note that the NOFO will address 
whether applicants can operate as a pass-through entity if awarded a 
grant under this grant program. We are not awarding grants to 
organizations that would operate as a central prime awardee because we 
do not believe it would be appropriate for a single agency to 
administer this grant program on behalf of VA. While the commenter 
references a cap of $150,000, we did not set forth in regulation any 
cap on the amount of funds we will award grantees. Instead, we stated 
that this information on estimated amounts of legal services grant 
funding available, including the maximum grant funding available per 
award, would be included in the NOFO. See 38 CFR 79.65(c). As there is 
no such cap in the regulations, particularly as the funds available and 
awarded can vary annually, we make no changes based on this comment.
    Lastly, this commenter also recommended that funds under this 
program be allowed to cover attorney training and professional 
development and that this be clarified in the NOFO.
    While we make no changes to the regulation based on this comment, 
we would allow grantees to use legal funds for attorney training and 
professional development. However, those costs must be covered under 
the administrative costs. We will provide further guidance on such 
allowable administrative costs, including attorney training and 
professional development, in the program guidance and through technical 
assistance.
    One commenter expressed their support for the rule but suggested 
that VA require its employees to provide information on this grant 
program if domestic violence is disclosed to them. This comment is 
outside the scope of this rulemaking, and such a requirement would be 
more appropriate for internal VA policy. We will work with VA's 
Intimate Partner Violence Assistance Program to ensure they have 
information on this program that can be shared with veterans if 
domestic violence is disclosed to VA employees. We make no changes to 
part 79 based on this comment.
    Two commenters, who identified as veterans, separately expressed 
their need for assistance as they were at risk for homelessness. While 
we consider these comments outside the scope of the rulemaking, to the 
extent these commenters provided contact information, VA did reach out 
to them. We further encourage these veterans and others who may be in 
similar situations to contact their nearest VA facility for further 
assistance in addressing their needs. We also refer such veterans to 
VA's website for additional information on VA's homeless programs. See 
https://www.va.gov/homeless. We do not make any changes to part 79 
based on these comments.

[[Page 89499]]

Changes to 38 CFR Part 79 Not Based on Comments

    VA makes several changes not based on comments. These do not create 
any burdens or restrictions on grantees under this grant program and 
address issues VA has identified with implementation. Several of these 
changes remove requirements and limitations that would restrict 
grantees and their ability to effectively provide legal services under 
this grant program. These changes are a logical outgrowth from the IFR, 
and even if they are not, given their nature, advance notice and the 
opportunity to comment is unnecessary under the terms of 5 U.S.C. 
553(b)(B).

Changes to Sec.  79.10(c)

    Pursuant to 38 U.S.C. 2022A(c), VA established in 38 CFR 79.10 the 
criteria for an entity to be considered an eligible entity under part 
79. One such entity that is eligible for a grant under part 79 is a 
non-profit private entity. However, Congress did not define this term 
in 38 U.S.C. 2022A. Thus, as explained in the IFR, VA defined non-
profit private entity to mean an entity that meets the requirements of 
26 U.S.C. 501(c)(3) or (19). 87 FR 33028. These are designations used 
by the Internal Revenue Service for purposes of tax exemptions and 
include such entities as corporations; foundations; and certain posts 
and organizations of members of the Armed Forces; in which no part of 
the net earnings inure to the benefit of any private shareholder or 
individual. Id.
    When we promulgated the IFR, we believed that non-profit private 
entities, such as bar associations, that specialize in providing legal 
services to veterans who are homeless or at risk for homelessness, 
including Native veterans, women veterans, and those who live in rural 
areas, would meet the requirements of 38 CFR 79.10(c). However, since 
implementing part 79, we have found that such entities may not be 
eligible to apply for, or receive, a grant because they do not meet the 
criteria of a non-profit private entity, as defined in 38 CFR 79.10(c), 
nor do they meet any other criteria to be considered an eligible entity 
under Sec.  79.10. Instead, such entities may meet the requirements of 
26 U.S.C. 501(c)(6), which refers to business leagues, chambers of 
commerce, real-estate boards, boards of trade, or professional football 
leagues (whether or not administering a pension fund for football 
players), not organized for profit and no part of the net earnings of 
which inures to the benefit of any private shareholder or individual.
    To ensure that such entities are eligible to apply for, and 
receive, a grant under part 79, we revise 38 CFR 79.10(c) to include 
non-profit private entities that meet the requirements of 26 U.S.C. 
501(c)(6). While we did not receive any comments on this issue, we 
consider this change to be removing a restriction in its regulation 
that excludes other non-profit private entities that commonly provide 
legal services from applying for, and receiving, a grant. These 
entities such as bar associations are important to the implementation 
of this grant program, as they would likely have the capacity to 
effectively administer a grant under part 79 and often provide legal 
services to those who may not otherwise have access to such services, 
such as those who are homeless or at risk for homelessness. We believe 
this revision to 38 CFR 79.10(c) thus aligns with the intent of the 38 
U.S.C. 2022A(a) and (c), as VA is required to award grants to eligible 
entities that provide legal services to homeless veterans and veterans 
at risk for homeless, and VA may only award grants if the applicant is 
a public or nonprofit private entity with the capacity (as determined 
by the Secretary) to effectively administer a grant under section 2022A 
(emphasis added).

Changes to Sec. Sec.  79.25, 79.75, and 79.95

    Sections 79.75 and 79.95 include information collections subject to 
the Paperwork Reduction Act (PRA). When the IFR published, these 
information collections had not yet been approved by the Office of 
Management and Budget (OMB). In Sec. Sec.  79.75 and 79.95, we thus 
included language noting that OMB had approved the information 
collection provisions in these sections but did not identify specific 
control numbers. However, these information collections have been 
approved and designated with control numbers. Thus, in this final rule, 
we revise the language in Sec. Sec.  79.75 and 79.95 to state that OMB 
has approved the information collection provisions in this section 
under control number 2900-0905.
    Additionally, we are amending Sec.  79.25 to state that OMB has 
approved the information collection provisions in this section under 
control number 2900-0905. We inadvertently left this sentence out of 
the section when we published the IFR. As Sec.  79.25 addresses 
applications, which are subject to PRA, we now add this language to 
reflect the approved collection.

Changes to Sec.  79.80

    Section 79.80 explains that faith-based organizations are eligible 
to participate in the Legal Services for Homeless Veterans and Veterans 
At-Risk for Homelessness Grant Program and describes the conditions for 
use of these grants as they relate to religious activities. Subsequent 
to the publication of the interim final rule establishing part 79, VA 
finalized regulations updating 38 CFR part 50. See 89 FR 15671 (March 
4, 2024). Part 50 also explains that faith-based organizations are 
eligible to participate in VA's grant-making programs on the same basis 
as any other organizations, that VA will not discriminate against 
faith-based organizations in the selection of service providers, and 
that faith-based and other organizations may request accommodations 
from program requirements and may be afforded such accommodations in 
accordance with Federal law. Because all VA grant programs, including 
the grant program in part 79, are subject to part 50, we revise 38 CFR 
79.80 to refer to part 50 rather than restate the provisions of part 
50. Thus, in the event that part 50 is further amended, we would not 
need to amend part 79.
    We do not regard notice and comment on this change as necessary 
because the public was already given notice and an opportunity to 
comment as part of the rulemaking to amend part 50.
    Relatedly, we also remove in 38 CFR 79.5 the terms ``Direct Federal 
financial assistance'' and ``Indirect Federal financial assistance'' 
and their definitions, as such terms and definitions were only included 
in Sec.  79.5 to define the use of these terms in Sec.  79.80. Since we 
are revising Sec.  79.80 to reference 38 CFR part 50, as explained 
above, and current part 50 includes definitions for these terms, we 
remove these terms and their definitions from 38 CFR 79.5 as they will 
no longer be used in part 79.

Changes to 38 CFR 79.90

    Section 79.90 describes financial management and administrative 
costs related to this grant program. Paragraph (d) limits the 
administrative costs to no more than 10 percent of the total amount of 
the legal services grant. This 10 percent cap aligned with other VA 
grant programs such as the Supportive Services for Veteran Families 
program (see 38 CFR 62.10), as well as 2 CFR 200.414(f), which sets the 
de minimis rate for indirect costs (also commonly referred to as 
administrative costs) for non-Federal entities that receive Federal 
financial assistance. Effective October 1, 2024, the rate in Sec.  
200.414(f) will increase from 10 percent to 15 percent. See 89 FR 30046 
(April 22, 2024).

[[Page 89500]]

    Additionally, 2 CFR 200.414(c) requires that negotiated rates for 
indirect costs between one Federal awarding agency and a grantee must 
be accepted by all Federal awarding agencies unless a different rate is 
required by statute or regulation. Thus, in instances when a legal 
services grantee has negotiated with another Federal awarding agency a 
rate other than the de minimis rate set forth in Sec.  200.414(f), VA 
could accept that rate pursuant to Sec.  200.414(f). However, as VA 
established the 10 percent rate in current 38 CFR 79.90(d), VA is 
unable to accept any negotiated rates a grantee may have with another 
Federal awarding agency. This could limit the number of organizations 
to which VA could provide funds under this instant grant program, as 
some organizations, including those who have current and/or past 
experience providing the services authorized under this grant program, 
may choose not to apply for a grant under part 79.
    Thus, VA is revising Sec.  79.90(d) to state ``Costs for 
administration by a grantee will be consistent with 2 CFR part 200.'' 
This will provide VA flexibility to quickly implement the 15 percent as 
the de minimis rate for indirect costs, and any subsequent changes to 
that rate, in Sec.  200.414(f) without first having to conduct 
rulemaking to change 38 CFR part 79. VA would not reference the 
specific section of 2 CFR part 200 as that is subject to change.
    This will also allow VA to utilize negotiated rates pursuant to 
Sec.  200.414(f), as applicable, which will align VA with other Federal 
agencies who provide funds to organizations for the similar type of 
services that are authorized under this instant grant program, as VA 
will be able to apply the negotiated rate pursuant to 2 CFR 200.414(c), 
when applicable. This revision will also align the instant grant 
program with similar changes VA is making to other grant programs, such 
as the Sergeant Parker Gordon Fox Suicide Prevention Grant program. See 
for example, 38 CFR 78.140(d).
    This change is within VA's discretion under 38 U.S.C. 2022A(b), 
which requires VA to establish criteria and requirements for grants 
under [such] section. Section 2022A does not place limits on the 
percentage of the grants funds that may be used for administrative 
costs. VA makes no further changes to 38 CFR 79.90.

Administrative Procedure Act

    VA has considered all relevant input and information contained in 
the comments submitted in response to the IFR (87 FR 33025) and, for 
the reasons set forth in the foregoing responses to those comments, has 
concluded that changes to the IFR are warranted based on those 
comments. VA is also making changes to the regulation, as explained 
above, that do not require notice and comment before implementation. 
These changes are a logical outgrowth from the IFR, and even if they 
are not, they relieve limitations and requirements previously 
established through the IFR, and advance notice and opportunity to 
comment is unnecessary under the terms of 5 U.S.C. 553(b)(B) because 
the amendments generally align with the statutory authority and do not 
create any burdens or restrictions on grantees under this program. 
Changes to 38 CFR 79.80 were already effectively subject to notice and 
comment as well through the rulemaking to amend part 50, as discussed 
above. Accordingly, based upon the authorities and reasons set forth in 
issuing the IFR (87 FR 33025), as supplemented by the additional 
reasons provided in this document in response to comments received and 
based on the rationale set forth in this rule, VA is adopting the 
provisions of the IFR as a final rule with changes.

Executive Orders 12866, 13563, and 14094

    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 not 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 www.regulations.gov.

Regulatory Flexibility Act

    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). This final rule will only impact those entities that choose to 
participate in the Legal Services for Homeless Veterans and Veterans 
At-Risk for Homelessness Grant Program. Small entity applicants will 
not be affected to a greater extent than large entity applicants. Small 
entities must elect to participate. To the extent this final rule would 
have any impact on small entities, it would not have an impact on a 
substantial number of small entities. 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.

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 final rule will have no such effect on 
State, local, and Tribal governments, or on the private sector.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507) requires that 
VA consider the impact of paperwork and other information collection 
burdens imposed on the public. Except for emergency approvals under 44 
U.S.C. 3507(j), VA may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number. The interim final rule included 
provisions constituting new collections of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that required 
approval by OMB (the provisions in the interim final rule are 38 CFR 
79.25, 79.75, and 79.95). Accordingly, under 44 U.S.C. 3507(d), VA 
submitted a copy of the IFR to OMB for review, and VA requested that 
OMB approve the collections of information on an emergency basis. VA 
did not receive any comments on the collections of information 
contained in the interim final rule. OMB approved the collections of 
information under control number 2900-0905.

[[Page 89501]]

Assistance Listing

    The Assistance Listing numbers and titles for the programs affected 
by this document are 64.056.

Congressional Review Act

    Pursuant to Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 
801 et seq.), the Office of Information and Regulatory Affairs 
designated this rule as not satisfying the criteria under 5 U.S.C. 
804(2).

List of Subjects in 38 CFR Part 79

    Administrative practice and procedure; Grant programs-social 
services; Grant programs-veterans; Homeless; Legal services; Public 
assistance programs; Reporting and recordkeeping requirements; 
Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved and signed 
this document on October 31, 2024, and authorized the undersigned to 
sign and submit the document to the Office of the Federal Register for 
publication electronically as an official document of the Department of 
Veterans Affairs.

Luvenia Potts,
Regulation Development Coordinator, Office of Regulation Policy & 
Management, Office of General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, the interim rule amending 
38 CFR chapter 1, which was published at 87 FR 33025 (June 1, 2022), is 
adopted as final with the following changes:

PART 79--LEGAL SERVICES FOR HOMELESS VETERANS AND VETERANS AT-RISK 
FOR HOMELESSNESS GRANT PROGRAM

0
1. The general authority citation for part 79 continues to read as 
follows:

    Authority:  38 U.S.C. 501, 38 U.S.C. 2022A, and as noted in 
specific sections.


Sec.  79.5  [Amended]

0
2. Amend Sec.  79.5 by removing the definitions of ``Direct Federal 
financial assistance'' and ``Indirect Federal financial assistance''.


Sec.  79.10  [Amended]

0
3. Amend Sec.  79.10 in paragraph (c) by removing ``26 U.S.C. 501(c)(3) 
or (19)'' and adding in its place ``26 U.S.C. 501(c)(3), (6), or 
(19)''.

0
4. Amend Sec.  79.20 by revising paragraph (d) and adding paragraph 
(f)(6) to read as follows:


Sec.  79.20  Legal services.

* * * * *
    (d) Legal services relating to criminal defense, including defense 
and resolution of, and assistance with, matters symptomatic of 
homelessness, such as outstanding warrants, fines, driver's license 
revocation, and citations. To reduce recidivism and facilitate the 
overcoming of reentry obstacles in employment or housing, covered legal 
services relating to criminal defense also include legal assistance 
with requests to expunge or seal a criminal record.
* * * * *
    (f) * * *
    (6) Legal services relating to requests for corrections to military 
records of a former member of the Armed Forces under 10 U.S.C. 1552.

0
5. Amend Sec.  79.25 by adding an information collection authority to 
the end of the section to read as follows:


Sec.  79.25  Application for legal services grants.

* * * * *
(The Office of Management and Budget has approved the information 
collection provisions in this section under control number 2900-
0905)


Sec.  79.75  [Amended]

0
6. Amend Sec.  79.75 in the information collection authority at the end 
of the section by removing ``2900-TBD'' and adding in its place ``2900-
0905''.

0
7. Revise Sec.  79.80 to read as follows:


Sec.  79.80  Faith-based organizations.

    Organizations that are faith-based are eligible, on the same basis 
as any other organization, to participate in the Legal Services for 
Homeless Veterans and Veterans At-Risk for Homelessness Grant Program 
under this part in accordance with 38 CFR part 50.

0
8. Amend Sec.  79.90 by revising the first sentence of paragraph (d) to 
read as follows:


Sec.  79.90  Financial management and administrative costs.

* * * * *
    (d) Costs for administration by a grantee will be consistent with 2 
CFR part 200. * * *


Sec.  79.95  [Amended]

0
9. Amend Sec.  79.95 in the information collection authority at the end 
of the section by removing ``2900-TBD'' and adding in its place ``2900-
0905''.

[FR Doc. 2024-25964 Filed 11-12-24; 8:45 am]
BILLING CODE 8320-01-P`