Federal Register / Vol. 87, No. 24 / Friday, February 4, 2022 / Rules and Regulations 6427 

Executive Orders 12866 and 13563 

Executive Orders 12866 and 13563 

direct 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. The Office of 

Information and Regulatory Affairs has 

determined that this rule is not a 

significant regulatory action under 

Executive Order 12866. 

The Regulatory Impact Analysis 

associated with this rulemaking can be 

found as a supporting document at 

www.regulations.gov. 

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. The amendment issued here as 

an interim final rule will not result in 

the expenditure of $100 million or more 

by State, local, and tribal governments, 

in the aggregate, or by the private sector. 

Congressional Review Act 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801 et seq.), the Office of 

Information and Regulatory Affairs 

designated this rule as not a major rule, 

as defined by 5 U.S.C. 804(2). 

Assistance Listing 

The Assistance Listing program 

numbers and titles for the programs 

affected by this document are 64.008— 

Veterans Domiciliary Care; 64.011— 

Veterans Dental Care; 64.012—Veterans 

Prescription Service; 64.013—Veterans 

Prosthetic Appliances; 64.014— 

Veterans State Domiciliary Care; 

64.015—Veterans State Nursing Home 

Care; 64.024—VA Homeless Providers 

Grant and Per Diem Program; 64.026— 

Veterans State Adult Day Health Care; 

64.029—Purchase Care Program; 

64.039—CHAMPVA; 64.040—VHA 

Inpatient Medicine; 64.041—VHA 

Outpatient Specialty Care; 64.042— 

VHA Inpatient Surgery; 64.043—VHA 

Mental Health Residential; 64.044— 

VHA Home Care; 64.045—VHA 

Outpatient Ancillary Services; 64.046— 

VHA Inpatient Psychiatry; 64.047— 

VHA Primary Care; 64.048—VHA 

Mental Health clinics; 64.049—VHA 

Community Living Center; 64.050— 

VHA Diagnostic Care; 64.054—Research 

and Development. 

List of Subjects in 38 CFR Part 17 

Administrative practice and 

procedure, Alcohol abuse, Alcoholism, 

Claims, Day care, Dental health, Drug 

abuse, Government contracts, Grant 

programs—health, Grant programs— 

veterans, Health care, Health facilities, 

Health professions, Health records, 

Homeless, Medical and Dental schools, 

Medical devices, Medical research, 

Mental health programs, Nursing 

homes, Reporting and recordkeeping 

requirements, Travel and transportation 

expenses, Veterans. 

Signing Authority 

Denis McDonough, Secretary of 

Veterans Affairs, approved this 

document on January 31, 2022, 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. 

Consuela Benjamin, 

Regulation Development Coordinator, Office 

of Regulation Policy & Management, Office 

of General Counsel, Department of Veterans 

Affairs. 

For the reasons set out in the 

preamble, VA amends 38 CFR part 17 as 

follows: 

PART 17—MEDICAL 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 38 U.S.C. 501, and as noted in 

specific sections. 

■ 2. Amend § 17.32 by revising 

paragraph (c)(6) to read as follows: 

§ 17.32 Informed consent and advance 

directives. 

* * * * * 

(c) * * * 

(6) Trained personnel may conduct 

elements of the informed consent 

process when delegated by the 

practitioner. However, the practitioner 

remains responsible for the informed 

consent process and must personally 

verify with the patient that the patient 

has been fully informed and voluntarily 

consents to the treatment or procedure. 

* * * * * 

[FR Doc. 2022–02316 Filed 2–3–22; 8:45 am] 

BILLING CODE 8320–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 21 

Clarification Concerning Tuition and 

Fees Payment Plans for Standard 

Terms and 85/15 Calculations 

AGENCY: Department of Veterans Affairs. 

ACTION: Policy interpretation. 

SUMMARY: The Department of Veterans 

Affairs (VA) provides notice of a policy 

advisory issued on August 31, 2021, by 

VA’s Education Service. The policy 

advisory clarifies and amends VA’s 

previous regulatory interpretation of 

tuition and fees (T&F) payment plans to 

differentiate between types of payment 

plans. Some payment plans should no 

longer be categorized as institutional 

support to a student when calculating 

the ratio of ‘‘supported’’ to ‘‘nonsupported’’ students in a program 

pursuant to the 85/15 Rule. While VA 

is retaining the general rule that a 

student who has a payment plan with 

an Educational Training Institute (ETI) 

should be considered supported, a 

student participating in a payment plan 

that meets the criteria set forth in this 

notice should not be considered 

supported and, instead, should be 

counted on the non-supported side of 

the 85/15 ratio. 

DATES: This policy interpretation is 

applicable from February 4, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Cheryl Amitay, Chief of Policy and 

Regulations Team, Education Service 

(225), Veterans Benefits Administration, 

Department of Veterans Affairs, 810 

Vermont Avenue NW, Washington, DC 

20420, Telephone: 202–461–9800 (This 

is not a toll-free number). 

SUPPLEMENTARY INFORMATION: The 85/15 

rule (38 U.S.C. 3680A(d); 38 CFR 

21.4201(a)) prohibits VA from paying 

educational assistance benefits to any 

new students once ‘‘more than 85 

percent of the students enrolled in the 

[program of education] are having all or 

part of their tuition, fees or other 

charges paid to or for them by the 

educational institution or by the 

Department of Veterans Affairs’’ (38 

U.S.C. 3680A(d)(1)). VA refers to 

students who receive such institutional 

or VA aid as ‘‘supported’’ students. 

Conversely, no less than 15 percent of 

the students enrolled in the program 

must be attending without having any of 

their tuition, fees or other charges paid 

to or for them by the educational 

institution or VA (referred to as nonsupported students). 

Currently, in accordance with 38 CFR 

21.4201, educational institutions are 


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6428 Federal Register / Vol. 87, No. 24 / Friday, February 4, 2022 / Rules and Regulations 

required to track the percentage of 

supported and non-supported students 

enrolled in each of their approved 

programs and to confirm their 

compliance with the required 85/15 

percent ratio (38 CFR 21.4201(e)–(f)). 

During the time the ratio of supported 

students to non-supported students 

exceeds 85 percent, no new students 

can be certified to receive VA education 

benefits for that program (38 CFR 

21.4201(g)(2)). For the 85/15 

calculations, new students include 

students returning after a break in 

enrollment unless the break is wholly 

due to circumstances beyond the 

student’s control (38 CFR 21.4201(g)(6)). 

The 85/15 rule allows VA to continue to 

pay benefits for students already 

enrolled in the program and receiving 

benefits prior to the ratio of supported 

students exceeding 85 percent of the 

total population enrolled in the program 

(38 CFR 21.4201(g)(2)). 

A program suspended for violating 

the 85/15 rule still may retain all of its 

current students. VA beneficiaries 

already enrolled in the program will be 

allowed to receive benefits for the 

program as long as they remain 

continuously enrolled, even if the ratio 

of supported students rises above 85 

percent. Also, a beneficiary enrolled at 

an educational institution organized on 

a term, semester or quarter basis need 

not attend summer sessions to maintain 

continuous enrollment. Further, as 

provided in 38 U.S.C. 3680A(d) and 38 

CFR 21.4201, any school is permitted to 

request a waiver from 85/15 reporting. 

Finally, there are exceptions to 

compliance with the 85/15 rule, such as 

the following: 

• VA beneficiaries receiving Veteran 

Readiness and Employment (Chapter 

31), or Survivors’ and Dependents’ 

Educational Assistance (Chapter 35) 

benefits. 

• Certain types of education and 

training institutions such as high 

schools, aero clubs, and farm 

cooperative courses. 

• Sites approved for on-the-job or 

apprenticeship training. 

In 2020, the VA Education Service 

informed schools that a student who has 

a payment plan with an ETI also should 

be considered supported for calculating 

the 85/15 ratio. After consulting with 

various partners as well as striving to 

interpret T&F payment plans in a 

manner which balances the best 

interests of students with the statutory 

mandate of the 85/15 rule, VA amended 

its guidance regarding payment plans at 

ETIs in a policy advisory issued on 

August 31, 2021: Clarification 

Concerning Tuition and Fees Payment 

Plans for Standard Terms and 85/15 

Calculations. The policy set forth in the 

aforementioned advisory is as follows: 

For classifying a student as supported 

or non-supported on VA form 22–10215, 

Statement of Assurance of Compliance 

with 85/15 Enrollment Ratios, a student 

enrolled in an ETI will be considered to 

be supported by the ETI unless all of the 

following apply (i.e., if all of the 

following apply the student will be 

considered non-supported): 

1. The availability and requirements 

of the payment plan are available for 

review and/or inspection by students, 

the State approving agency and VA (a) 

on the school’s website and (b) in a 

dated hard copy on file at every campus 

of the ETI. 

2. The ETI T&F payment plan 

includes the following provisions: 

a. The payment plan is available to 

any enrolled student who is interested 

in participating. 

b. The payment plan explicitly 

requires the student to pay the 

outstanding balance by the end of the 

85/15 reporting period (academic term 

or calendar quarter) (i.e., the ETI 

requires the payment plan to be paid off 

in full no later than the end of the term). 

c. The payment plan must be paid in 

full before students can begin training 

for the next term. 

To reiterate, unless all of the 

aforementioned conditions are met by 

the ETI and its T&F payment plan, the 

school’s payment plan will still be 

considered a source of institutional 

support and should still be reported on 

the supported student count side of the 

85/15 supported to non-supported ratio 

(i.e., the side that cannot exceed 85%). 

Conversely, if all of the aforementioned 

apply, the T&F payment plan should not 

be construed as providing institutional 

support so a student participating in one 

is not to be considered supported and 

should be reported on the nonsupported side of the 85/15 ratio (i.e., 

the side that must be at least 15%). 

The 85/15 rule ensures a minimum 

number of students who are not 

receiving VA funds are willing to pay 

for the full cost of the program to ensure 

the price of the program responds to the 

general demands of the open market and 

a minimum number of non-VA 

beneficiaries find the program 

worthwhile and valuable. VA cannot 

ensure compliance with the 85/15 rule 

nor ensure GI Bill beneficiaries are not 

being overcharged if there is an unpaid 

balance at the end of the reporting 

period that could subsequently be 

waived or otherwise written off. 

Signing Authority 

Denis McDonough, Secretary of 

Veterans Affairs, approved this 

document on January 28, 2022 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. 

[FR Doc. 2022–02305 Filed 2–3–22; 8:45 am] 

BILLING CODE 8320–01–P 

POSTAL REGULATORY COMMISSION 

39 CFR Part 3040 

[Docket No. RM2020–8] 

Update to Competitive Product List 

AGENCY: Postal Regulatory Commission. 

ACTION: Direct final rule. 

SUMMARY: The Commission is 

announcing an update to the 

competitive product list. This action 

reflects a publication policy adopted by 

Commission rules. The referenced 

policy assumes periodic updates. The 

updates are identified in the body of 

this document. The competitive product 

list, which is re-published in its 

entirety, includes these updates. 

DATES: This rule is effective March 21, 

2022, without further action, unless 

adverse comment is received by March 

7, 2022. If adverse comment is received, 

the Commission will publish a timely 

withdrawal of the rule in the Federal 

Register. 

ADDRESSES: For additional information, 

this document can be accessed 

electronically through the Commission’s 

website at https://www.prc.gov. 

FOR FURTHER INFORMATION CONTACT: 

David A. Trissell, General Counsel, at 

202–789–6800. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

II. Commission Process 

III. Authorization 

IV. Modifications 

V. Ordering Paragraphs 

I. Introduction 

Pursuant to 39 U.S.C. 3642(d)(2) and 

39 CFR 3040.103, the Commission 

provides an Update to Competitive 

Product List by listing all necessary 

modifications to the competitive 

product list between October 1, 2021 

and December 31, 2021. 

II. Commission Process 

Pursuant to 39 CFR part 3040, the 

Commission maintains a Mail 


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