[Title 38 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2011 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
Title 38
Pensions, Bonuses, and Veterans' Relief
________________________
Parts 0 to 17
Revised as of July 1, 2011
Containing a codification of documents of general
applicability and future effect
As of July 1, 2011
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 38:
Chapter I--Department of Veterans Affairs 3
Finding Aids:
Table of CFR Titles and Chapters........................ 781
Alphabetical List of Agencies Appearing in the CFR...... 801
List of CFR Sections Affected........................... 811
[[Page iv]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 38 CFR 0.735-1
refers to title 38, part
0, section 735-1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate
volumes. For the period beginning April 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
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What is incorporation by reference? Incorporation by reference was
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
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CFR INDEXES AND TABULAR GUIDES
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that volume.
[[Page vii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2011.
[[Page ix]]
THIS TITLE
Title 38--Pensions, Bonuses and Veterans' Relief is composed of two
volumes. The parts in these volumes are arranged in the following order:
parts 0-17 and part 18 to end. The contents of these volumes represent
all current regulations codified by the Department of Veterans Affairs
and the Armed Forces Retirement Home under this title of the CFR as of
July 1, 2011.
For this volume, Michele Bugenhagen was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
(This book contains parts 0 to 17)
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Part
chapter i--Department of Veterans Affairs................... 0
[[Page 3]]
CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
--------------------------------------------------------------------
Editorial Note: Nomenclature changes to chapter I appear at 64 FR
30244, June 7, 1999; 66 FR 44053, Aug. 22, 2001; and 66 FR 66767, Dec.
27, 2001.
Part Page
0 Standards of ethical conduct and related
responsibilities........................ 5
1 General provisions.......................... 6
2 Delegations of authority.................... 128
3 Adjudication................................ 136
4 Schedule for rating disabilities............ 368
5 [Reserved]
6 United States Government life insurance..... 494
7 Soldiers' and sailors' civil relief......... 500
8 National Service Life Insurance............. 502
8a Veterans Mortgage Life Insurance............ 521
9 Servicemembers' Group Life Insurance and
Veterans' Group Life Insurance.......... 524
10 Adjusted compensation....................... 540
11 Loans by banks on and payment of adjusted
service certificates.................... 547
12 Disposition of veteran's personal funds and
effects................................. 554
13 Veterans Benefits Administration, fiduciary
activities.............................. 565
14 Legal services, General Counsel, and
miscellaneous claims.................... 573
15 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Department
of Veterans Affairs..................... 622
16 Protection of human subjects................ 628
17 Medical..................................... 639
[[Page 5]]
PART 0_STANDARDS OF ETHICAL CONDUCT AND RELATED RESPONSIBILITIES--
Table of Contents
Subpart A_General Provisions
Sec.
0.735-1 Agency ethics officials.
0.735-2 Government-wide standards.
Subpart B_Standards of Ethical Conduct and Related Responsibilities of
Employees
0.735-10 Cross-reference to employee ethical and other conduct standards
and financial disclosure regulations.
0.735-11 Other conduct on the job.
0.735-12 Standards of conduct in special areas.
Authority: 5 U.S.C. 301; 38 U.S.C. 501; see sections 201, 301, and
502(a) of E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215 as modified
by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.
Source: 31 FR 5828, Apr. 15, 1966, unless otherwise noted.
Subpart A_General Provisions
Sec. 0.735-1 Agency ethics officials.
(a) Designated Agency Ethics Official (DAEO). The Assistant General
Counsel (023) is the designated agency ethics official (DAEO) for the
Department of Veterans Affairs. The Deputy Assistant General Counsel
(023C) is the alternate DAEO, who is designated to act in the DAEO's
absence. The DAEO has primary responsibility for the administration,
coordination, and management of the VA ethics program, pursuant to 5 CFR
2638.201-204.
(b) Deputy ethics officials. (1) The Regional Counsel are deputy
ethics officials. They have been delegated the authority to act for the
DAEO within their jurisdiction, under the DAEO's supervision, pursuant
to 5 CFR 2638.204.
(2) The alternate DAEO, the DAEO's staff, and staff in the Offices
of Regional Counsel, may also act as deputy ethics officials pursuant to
delegations of one or more of the DAEO's duties from the DAEO or the
Regional Counsel.
[58 FR 61813, Nov. 23, 1993. Redesignated at 61 FR 11309, Mar. 20, 1996]
Sec. 0.735-2 Government-wide standards.
For government-wide standards of ethical conduct and related
responsibilities for Federal employees, see 5 CFR Part 735 and Chapter
XVI.
[61 FR 11309, Mar. 20, 1996. Redesignated at 63 FR 33579, June 19, 1998]
Subpart B_Standards of Ethical Conduct and Related Responsibilities of
Employees
Source: 58 FR 61814, Nov. 23, 1993, unless otherwise noted.
Sec. 0.735-10 Cross-reference to employee ethical and other conduct
standards and financial disclosure regulations.
Employees of the Department of Veterans Affairs (VA) should refer to
the executive branch-wide Standards of Ethical Conduct at 5 CFR part
2635, the executive branch-wide Employee Responsibilities and Conduct at
5 CFR part 735, and the executive branch-wide financial disclosure
regulation at 5 CFR part 2634.
Sec. 0.735-11 Other conduct on the job.
Relationship with beneficiaries and claimants. Employees are
expected to be helpful to beneficiaries, patients and claimants, but:
(a) An employee shall not procure intoxicants or drugs for, or
attempt to sell intoxicants or drugs to, patients or members, or give or
attempt to give intoxicants or drugs to them unless officially
prescribed for medical use;
(b) An employee shall not abuse patients, members, or other
beneficiaries, whether or not provoked.
Sec. 0.735-12 Standards of conduct in special areas.
(a) Safety. (1) Employees will observe safety instructions, signs,
and normal safety practices and precautions, including the use of
protective clothing and equipment.
(2) An employee shall report each work-connected injury, accident or
disease he or she suffers.
(b) Furnishing testimony. Employees will furnish information and
testify freely and honestly in cases respecting employment and
disciplinary matters.
[[Page 6]]
Refusal to testify, concealment of material facts, or willfully
inaccurate testimony in connection with an investigation or hearing may
be ground for disciplinary action. An employee, however, will not be
required to give testimony against himself or herself in any matter in
which there is indication that he or she may be or is involved in a
violation of law wherein there is a possibility of self-incrimination.
PART 1_GENERAL PROVISIONS--Table of Contents
Department of Veterans Affairs Official Seal and Distinguishing Flag
Sec.
1.9 Description, use, and display of VA seal and flag.
The United States Flag for Burial Purposes
1.10 Eligibility for and disposition of the United States flag for
burial purposes.
Quarters for Department of Veterans Affairs Employees Overseas
1.11 Quarters for Department of Veterans Affairs employees in
Government-owned or -rented buildings overseas.
Program Evaluation
1.15 Standards for program evaluation.
1.17 Evaluation of studies relating to health effects of radiation
exposure.
1.18 Guidelines for establishing presumptions of service connection for
former prisoners of war.
Referrals of Information Regarding Criminal Violations
1.200 Purpose.
1.201 Employee's duty to report.
1.203 Information to be reported to VA Police.
1.204 Information to be reported to the Office of Inspector General.
1.205 Notification to the Attorney General or United States Attorney's
Office.
Security and Law Enforcement at Department of Veterans Affairs
Facilities
1.218 Security and law enforcement at VA facilities.
Parking Fees at VA Medical Facilities
1.300 Purpose.
1.301 Definitions.
1.302 Applicability and scope.
1.303 Policy.
Release of Information from Department of Veterans Affairs (VA) Records
Relating to Drug Abuse, Alcoholism or Alcohol Abuse, Infection With the
Human Immunodeficiency Virus (HIV), or Sickle Cell Anemia
1.460 Definitions.
1.461 Applicability.
1.462 Confidentiality restrictions.
1.463 Criminal penalty for violations.
1.464 Minor patients.
1.465 Incompetent and deceased patients.
1.466 Security for records.
1.467 Restrictions on the use of identification cards and public signs.
1.468 Relationship to Federal statutes protecting research subjects
against compulsory disclosure of their identity.
1.469 Patient access and restrictions on use.
1.470-1.474 [Reserved]
Disclosures With Patient's Consent
1.475 Form of written consent.
1.476 Prohibition on redisclosure.
1.477 Disclosures permitted with written consent.
1.478 Disclosures to prevent multiple enrollments in detoxification and
maintenance treatment programs; not applicable to records
relating to sickle cell anemia or infection with the human
immunodeficiency virus.
1.479 Disclosures to elements of the criminal justice system which have
referred patients.
1.480-1.483 [Reserved]
Disclosures Without Patient Consent
1.484 Disclosure of medical information to the surrogate of a patient
who lacks decision-making capacity.
1.485 Medical emergencies.
1.485a Eye, organ and tissue donation.
1.486 Disclosure of information related to infection with the human
immunodeficiency virus to public health authorities.
1.487 Disclosure of information related to infection with the human
immunodeficiency virus to the spouse or sexual partner of the
patient.
1.488 Research activities.
1.489 Audit and evaluation activities.
Court Orders Authorizing Disclosures and Use
1.490 Legal effect of order.
1.491 Confidential communications.
1.492 Order not applicable to records disclosed without consent to
researchers, auditors and evaluators.
1.493 Procedures and criteria for orders authorizing disclosures for
noncriminal purposes.
1.494 Procedures and criteria for orders authorizing disclosure and use
of records to
[[Page 7]]
criminally investigate or prosecute patients.
1.495 Procedures and criteria for orders authorizing disclosure and use
of records to investigate or prosecute VA or employees of VA.
1.496 Orders authorizing the use of undercover agents and informants to
criminally investigate employees or agents of VA.
1.497-1.499 [Reserved]
Release of Information From Department of Veterans Affairs Claimant
Records
1.500 General.
1.501 Release of information by the Secretary.
1.502 Disclosure of the amount of monetary benefits.
1.503 Disclosure of information to a veteran or his or her duly
authorized representative as to matters concerning the veteran
alone.
1.504 Disclosure of information to a widow, child, or other claimant.
1.505 Genealogy.
1.506 Disclosure of records to Federal Government departments, State
unemployment compensation agencies, and the Office of
Servicemembers' Group Life Insurance.
1.507 Disclosures to members of Congress.
1.508 Disclosure in cases where claimants are charged with or convicted
of criminal offenses.
1.509 Disclosure to courts in proceedings in the nature of an inquest.
1.510 Disclosure to insurance companies cooperating with the Department
of Justice in the defense of insurance suits against the
United States.
1.511 Disclosure of claimant records in connection with judicial
proceedings generally.
1.512 Disclosure of loan guaranty information.
1.513 Disclosure of information contained in Armed Forces service and
related medical records in Department of Veterans Affairs
custody.
1.514 Disclosure to private physicians and hospitals other than
Department of Veterans Affairs.
1.514a Disclosure to private psychologists.
1.514b Disclosures to procurement organizations.
1.515 To commanding officers of State soldiers' homes.
1.516 Disclosure of information to undertaker concerning burial of a
deceased veteran.
1.517 Disclosure of vocational rehabilitation and education information
to educational institutions cooperating with the Department of
Veterans Affairs.
1.518 Addresses of claimants.
1.519 Lists of names and addresses.
1.520 Confidentiality of social data.
1.521 Special restrictions concerning social security records.
1.522 Determination of the question as to whether disclosure will be
prejudicial to the mental or physical health of claimant.
1.523 [Reserved]
1.524 Persons authorized to represent claimants.
1.525 Inspection of records by or disclosure of information to
recognized representatives of organizations and recognized
attorneys.
1.526 Copies of records and papers.
1.527 Administrative review.
Release of Information From Department of Veterans Affairs Records Other
Than Claimant Records
1.550 General.
1.551 [Reserved]
1.552 Public access to information that affects the public when not
published in the Federal Register as constructive notice.
1.553 Public access to other reasonably described records.
1.553a Time limits for Department of Veterans Affairs response to
requests for records.
1.554 Exemptions from public access to agency records.
1.554a Predisclosure notification procedures for confidential commercial
information.
1.555 Fees.
1.556 Requests for other reasonably described records.
1.557 Administrative review.
1.558-1.559 [Reserved]
Safeguarding Personal Information in Department of Veterans Affairs
Records
1.575 Social security numbers in veterans' benefits matters.
1.576 General policies, conditions of disclosure, accounting of certain
disclosures, and definitions.
1.577 Access to records.
1.578 [Reserved]
1.579 Amendment of records.
1.580 Administrative review.
1.581 [Reserved]
1.582 Exemptions.
1.583-1.584 [Reserved]
Expanded Remote Access to Computerized Veterans Claims Records by
Accredited Representatives
1.600 Purpose.
1.601 Qualifications for access.
1.602 Utilization of access.
1.603 Disqualification.
[[Page 8]]
Inventions by Employees of Department of Veterans Affairs
1.650 Purpose.
1.651 Definitions.
1.652 Criteria for determining rights to employee inventions.
1.653 Delegation of authority.
1.654 Patenting of inventions.
1.655 Government license in invention of employee.
1.656 Information to be submitted by inventor.
1.657 Determination of rights.
1.658 Right of appeal.
1.659 Relationship to incentive awards program.
1.660 Expeditious handling.
1.661 Information to be kept confidential.
1.662 Provisions of regulations made a condition of employment.
1.663 Licensing of Government-owned inventions.
1.664-1.666 [Reserved]
Administrative Control of Funds
1.670 Purpose.
1.671 Definitions.
1.672 Responsibilities.
1.673 Responsibility for violations of the administrative subdivision of
funds.
Use of Official Mail in the Location and Recovery of Missing Children
1.700 Purpose.
1.701 Contact person for missing children official mail program.
1.702 Policy.
1.703 Percentage estimate.
1.704 [Reserved]
1.705 Restrictions on use of missing children information.
Homeless Claimants
1.710 Homeless claimants: Delivery of benefit payments and
correspondence.
1.780-1.783 [Reserved]
Part-Time Career Employment Program
1.891 Purpose of program.
1.892 Review of positions.
1.893 Establishing and converting part-time positions.
1.894 Annual goals and timetables.
1.895 Review and evaluation.
1.896 Publicizing vacancies.
1.897 Exceptions.
Standards for Collection, Compromise, Suspension or Termination of
Collection Effort, and Referral of Civil Claims for Money or Property
1.900 Prescription of standards.
1.901 No private rights created.
1.902 Antitrust, fraud, and tax interagency claims.
1.903 Settlement, waiver, or compromise under other statutory or
regulatory authority.
1.904 Form of payment.
1.905 Subdivision of claims not authorized.
1.906 Required administrative proceedings.
1.907 Definitions.
Standards for Collection of Claims
1.910 Aggressive collection action.
1.911 Collection of debts owed by reason of participation in a benefits
program.
1.911a Collection of non-benefit debts.
1.912 Collection by offset.
1.912a Collection by offset--from VA benefit payments.
1.913 Liquidation of collateral.
1.914 Collection in installments.
1.915 Interest, administrative costs, and penalties.
1.916 Disclosure of debt information to consumer reporting agencies
(CRA).
1.917 Contracting for collection services.
1.918 Use and disclosure of mailing addresses.
1.919 Administrative offset against amounts payable from Civil Service
Retirement and Disability Fund, Federal Employees Retirement
System (FERS), final salary check, and lump sum leave
payments.
1.920 Referral of VA debts.
1.921 Analysis of costs.
1.922 Exemptions.
1.923 Administrative wage garnishment.
1.924 Suspension or revocation of eligibility for federal loans, loan
insurance, loan guarantees, licenses, permits, or privileges.
Standards for Compromise of Claims
1.930 Scope and application.
1.931 Bases for compromise.
1.932 Enforcement policy.
1.933 Joint and several liability.
1.934 Further review of compromise offers.
1.935 Consideration of tax consequences to the Government.
1.936 Mutual releases of the debtor and VA.
Standards for Suspending or Terminating Collection Action
1.940 Scope and application.
1.941 Suspension of collection activity.
1.942 Termination of collection activity.
1.943 Exception to termination.
1.944 Discharge of indebtedness; reporting requirements.
1.945 Authority to suspend or terminate collection action on certain
benefit indebtedness; authority for refunds.
Referrals to GAO, Department of Justice, or IRS
1.950 Prompt referral.
1.951 Claims Collection Litigation Report (CCLR).
[[Page 9]]
1.952 Preservation of evidence.
1.953 Minimum amount of referrals to the Department of Justice.
Regional Office Committees on Waivers and Compromises
1.955 Regional office Committees on Waivers and Compromises.
1.956 Jurisdiction.
1.957 Committee authority.
1.958 Finality of decisions.
1.959 Records and certificates.
1.960 Legal and technical assistance.
1.961 Releases.
1.962 Waiver of overpayments.
1.963 Waiver; other than loan guaranty.
1.963a Waiver; erroneous payments of pay and allowances.
1.964 Waiver; loan guaranty.
1.965 Application of standard.
1.966 Scope of waiver decisions.
1.967 Refunds.
1.968 [Reserved]
1.969 Revision of waiver decisions.
1.970 Standards for compromise.
Salary Offset Provisions
1.980 Scope.
1.981 Definitions.
1.982 Salary offsets of debts involving benefits under the laws
administered by VA.
1.983 Notice requirements before salary offsets of debts not involving
benefits under the laws administered by VA.
1.984 Request for a hearing.
1.985 Form, notice of, and conduct of hearing.
1.986 Result if employee fails to meet deadlines.
1.987 Review by hearing official or administrative law judge.
1.988 Written decision following a hearing requested under Sec. 1.984.
1.989 Review of VA records related to the debt.
1.990 Written agreement to repay debt as alternative to salary offset.
1.991 Procedures for salary offset: when deductions may begin.
1.992 Procedures for salary offset.
1.993 Non-waiver of rights.
1.994 Refunds.
1.995 Requesting recovery through centralized administrative offset.
Procedures for Financial Institutions Regarding Garnishment of Benefit
Payments After Disbursement
1.1000 Garnishment of payments after disbursement.
Authority: 38 U.S.C. 501(a), and as noted in specific sections.
Department of Veterans Affairs Official Seal and Distinguishing Flag
Sec. 1.9 Description, use, and display of VA seal and flag.
(a) General. This section describes the official seal and
distinguishing flag of the of the Department of Veterans Affairs, and
prescribes the rules for their custody and use.
(b) Definitions. (1) VA means all organizational units of the
Department of Veterans Affairs.
(2) Embossed seal means an image of the official seal made on paper
or other medium by using an embosser with a negative and positive die to
create a raised impression.
(3) Official seal means the original(s) of the VA seal showing the
exact form, content, and colors thereof.
(4) Replica means a copy of the official seal displaying the
identical form, content, and colors thereof.
(5) Reproduction means a copy of the official seal displaying the
identical form and content, reproduced in only one color.
(6) Secretary means the Secretary of Veterans Affairs.
(7) Deputy Secretary means the Deputy Secretary of Veterans Affairs.
(c) Custody of official seal and distinguishing flags. The Secretary
or designee shall:
(1) Have custody of:
(i) The official seal and prototypes thereof, and masters, molds,
dies, and other means of producing replicas, reproductions, and
embossing seals and
(ii) Production, inventory, and loan records relating to items
specified in paragraph (c)(1)(i) of this section, and
(2) Have custody of distinguishing flags, and be responsible for
production, inventory, and loan records thereof.
(d) Official Seal--(1) Description of official seal. The Department
of Veterans Affairs prescribes as its official seal, of which judicial
notice shall be taken pursuant to 38 U.S.C. 302, the imprint illustrated
below:
[[Page 10]]
[GRAPHIC] [TIFF OMITTED] TC04NO91.000
(i) The official seal includes an American eagle clutching a cord in
its talons. The cord binds a 13-star U.S. flag and a 50-star U.S. flag.
In the field over the eagle is a pentagon formation of stars, with one
point down. The words Department of Veterans Affairs and United States
of America surround the eagle, stars, and flags. A rope motif makes up
the outermost ring of the seal.
(ii) The eagle represents the eternal vigilance of all our nation's
veterans. The stars represent the five branches of military service. The
crossed flags represent our nation's history. The gold cord that binds
the two flags, which is shown clutched in the eagle's talons is symbolic
of those who have fallen in the defense of liberty. Each of the various
individual items placed together in the seal is a salute to the past,
present, and future.
(iii) The colors used in the configuration are gold, brown, blue,
white, silver, yellow, black, and red.
(iv) The colors are derived from the American flag and from nature.
By invoking this symbolism, the color scheme represents the Nation's
commitment to its veterans.
(2) Use of the official seal, replicas, reproductions, and embossing
seals. (i) The Secretary or designees are authorized to affix replicas,
reproductions, and embossed seals to appropriate documents,
certifications, and other material for all purposes as authorized by
this section.
(ii) Replicas may be used only for:
(A) Display in or adjacent to VA facilities, in Department
auditoriums, presentation rooms, hearing rooms, lobbies, and public
document rooms.
(B) Offices of senior officials.
(C) Official VA distinguishing flags, adopted and utilized pursuant
to paragraph (e)(2) of this section.
(D) Official awards, certificates, medals, and plaques.
(E) Motion picture film, video tape, and other audiovisual media
prepared by or for VA and attributed thereto.
(F) Official prestige publications which represent the achievements
or mission of VA.
(G) For other similar official purposes.
(H) For such other purposes as will tend to advance the aims,
purposes and mission of the Department of Veterans Affairs as determined
by the Secretary or Deputy Secretary.
(iii) Reproductions may be used only on:
(A) VA letterhead stationery.
(B) Official VA identification cards and security credentials.
(C) Business cards for VA employees.
(D) Official VA signs.
(E) Official publications or graphics issued by and attributed to
VA, or joint statements of VA with one or more Federal agencies, State
or local governments, or foreign governments.
(F) Official awards, certificates, and medals.
(G) Motion picture film, video tape, and other audiovisual media
prepared by and for VA and attributed thereto.
(H) For other similar official purposes.
(I) For such other purposes as will tend to advance the aims,
purposes and mission of the Department of Veterans Affairs as determined
by the Secretary or Deputy Secretary.
(iv) Use of the official seal and embossed seals:
(A) Embossed seals may be used only on VA legal documents, including
interagency or intergovernmental agreements with States, foreign patent
applications, and similar official documents.
(B) The official seal may be used only for those purposes related to
the conduct of Departmental affairs in furtherance of the VA mission.
[[Page 11]]
(e) Distinguishing flag. (1) Description of distinguishing flag.
(i) The base or field of the flag shall be blue and a replica of the
official seal shall appear on both sides thereof.
(ii) A Class 1 flag shall be of nylon banner, measure
4[foot]4 on the hoist by 5[foot]6 on the fly,
exclusive of heading and hems, and be fringed on three edges with nylon
fringe, 2\1/2\ wide.
(iii) A Class 2 flag shall be of nylon banner, measure 3[foot] on
the hoist by 5[foot] on the fly, exclusive of heading and hems, and be
fringed on three edges with nylon fringe, 2\1/2\ wide.
(iv) Each flag shall be manufactured in accordance with Department
of Veterans Affairs Specification X-497G. The replica of the official
seal shall be screen printed or embroidered on both sides.
(2) Use of distinguishing flag. (i) VA distinguishing flags may be
used only:
(A) In the offices of the Secretary, Deputy Secretary, Assistant
Secretaries, Deputy Assistant Secretaries and heads of field locations
designated below:
(1) Regional Offices.
(2) Medical Centers and Outpatient Clinics.
(3) Domiciliaries.
(4) Marketing Centers and Supply Depots.
(5) Data Processing Centers.
(6) National Cemetery Offices.
(7) Other locations as designated by the Deputy Assistant Secretary
for Administration.
(B) At official VA ceremonies.
(C) In Department auditoriums, official presentation rooms, hearing
rooms, lobbies, public document rooms, and in non-VA facilities in
connection with events or displays sponsored by VA, and public
appearances of VA officials.
(D) On or in front of VA installation buildings.
(E) Other such official VA purposes or purposes as will tend to
advance the aims, purposes and mission of the Department of Veterans
Affairs as determined by the Deputy Assistant Secretary for
Administration.
(f) Unauthorized uses of the seal and flag. (1) The official seal,
replicas, reproductions, embossed seals, and the distinguished flag
shall not be used, except as authorized by the Secretary or Deputy
Secretary, in connection with:
(i) Contractor-operated facilities.
(ii) Souvenir or novelty items.
(iii) Toys or commercial gifts or premiums.
(iv) Letterhead design, except on official Departmental stationery.
(v) Matchbook covers, calendars and similar items.
(vi) Civilian clothing or equipment.
(vii) Any article which may disparage the seal or flag or reflect
unfavorably upon VA.
(viii) Any manner which implies Departmental endorsement of
commercial products or services, or of the commercial user's policies or
activities.
(2) Penalties for unauthorized use. Any person who uses the
distinguishing flag, or the official seal, replicas, reproductions or
embossed seals in a manner inconsistent with this section shall be
subject to the penalty provisions of 18 U.S.C. 506, 701, or 1017,
providing penalties for their wrongful use, as applicable.
(Authority: 38 U.S.C. 302, 38 U.S.C. 501)
[55 FR 49518, Nov. 29, 1990]
The United States Flag for Burial Purposes
Sec. 1.10 Eligibility for and disposition of the United States
flag for burial purposes.
(a) Eligibility for burial flags--(1) Persons eligible. (i) A
veteran of any war, of Mexican border service, or of service after
January 31, 1955, discharged or released from active duty under
conditions other than dishonorable. (For the purpose of this section,
the term Mexican border service means active military, naval, or air
service during the period beginning on January 1, 1911, and ending on
April 5, 1917, in Mexico, on the borders thereof, or in the waters
adjacent thereto.)
(ii) A peacetime veteran discharged or released, before June 27,
1950, from the active military, naval, or air service, under conditions
other than dishonorable, after serving at least one enlistment, or for a
disability incurred or aggravated in line of duty.
(iii) Any person who has died while in military or naval service of
the United
[[Page 12]]
States after May 27, 1941. This subdivision authorizes and requires the
furnishing of a flag only where the military or naval service does not
furnish a flag immediately. The only cases wherein a flag is not
supplied immediately are those of persons whose remains are interred
outside the continental limits of the United States, or whose remains
are not recovered or are recovered and not identified.
(iv) Any person who served in the organized military forces of the
Commonwealth of the Philippines while such forces were in the service of
the Armed Forces of the United States pursuant to the military order of
the President of the United States, dated July 26, 1941, including among
such military forces organized guerrilla forces under commanders
appointed, designated, or subsequently recognized by the Commander in
Chief, Southwest Pacific Area, or other competent authority in the Army
of the United States, and who dies after separation from such service
under conditions other than dishonorable, on or after April 25, 1951.
(Authority: 38 U.S.C. 107(a))
(v) Any deceased member or former member of the Selected Reserve (as
described in section 10143 of title 10) who is not otherwise eligible
for a flag under this section or section 1482(a) of title 10 and who:
(A) Completed at least one enlistment as a member of the Selected
Reserve or, in the case of an officer, completed the period of initial
obligated service as a member of the Selected Reserve;
(B) Was discharged before completion of the person's initial
enlistment as a member of the Selected Reserve or, in the case of an
officer, period of initial obligated service as a member of the Selected
Reserve, for a disability incurred or aggravated in the line of duty; or
(C) Died while a member of the Selected Reserve.
(Authority: 38 U.S.C. 2301(f)(1))
(b) Disposition of burial flags. (1) When a flag is actually used to
drape the casket of a deceased veteran, it must be delivered to the next
of kin following interment. Where the flag is not claimed by the next of
kin it may be given upon request to a close friend or associate of the
deceased veteran. Such action will constitute final and conclusive
determination of rights under this section. (38 U.S.C. 2301)
(2) The phrase next of kin for the purpose of disposing of the flag
used for burial purposes is defined as follows, with preference to
entitlement in the order listed:
(i) Widow or widower.
(ii) Children, according to age (minor child may be issued a flag on
application signed by guardian).
(iii) Parents, including adoptive, stepparents, and foster parents.
(iv) Brothers or sisters, including brothers or sisters of the
halfblood.
(v) Uncles or aunts.
(vi) Nephews or nieces.
(vii) Others--cousins, grandparents, etc. (but not in-laws).
(3) The phrase close friend or associate for the purpose of
disposing of the burial flag means any person who because of his or her
relationship with the deceased veteran arranged for the burial or
assisted in the burial arrangements. In the absence of a person falling
in either of these categories, any person who establishes by evidence
that he or she was a close friend or associate of the veteran may be
furnished the burial flag. Where more than one request for the burial
flag is received and each is accompanied by satisfactory evidence of
relationship or association, the head of the field facility having
jurisdiction of the burial flag quota will determine which applicant is
the one most equitably entitled to the burial flag.
(Authority: 72 Stat. 1114, 1169, as amended; 38 U.S.C. 501, 2301)
[13 FR 6999, Nov. 27, 1948, as amended at 20 FR 8350, Nov. 8, 1955; 24
FR 10106, Dec. 15, 1959; 31 FR 4959, Mar. 26, 1966; 42 FR 27245, May 27,
1977; 66 FR 27598, May 18, 2001]
[[Page 13]]
Quarters for Department of Veterans Affairs Employees Overseas
Sec. 1.11 Quarters for Department of Veterans Affairs employees in
Government-owned or -rented buildings overseas.
Pursuant to the provisions of 5 U.S.C. 5912, a U.S. citizen employee
of the Department of Veterans Affairs permanently stationed in a foreign
country may be furnished, without cost to him or her, living quarters,
including heat, fuel, and light, in a Government-owned or -rented
building. When in the interest of the service and when administratively
feasible, an agreement may be entered into by the Under Secretary for
Benefits or designee with another Federal agency, which is authorized to
furnish quarters, to provide such quarters for Department of Veterans
Affairs employees under the provisions of 31 U.S.C. 686. Quarters
provided will be in lieu of any living quarters allowance to which the
employee may otherwise be entitled.
(Authority: 72 Stat. 1114; 38 U.S.C. 501)
[33 FR 362, Jan. 10, 1968]
Program Evaluation
Sec. 1.15 Standards for program evaluation.
(a) The Department of Veterans Affairs will evaluate all programs
authorized under title 38 U.S.C. These evaluations will be conducted so
as to determine each program's effectiveness in achieving its stated
goals and in achieving such goals in relation to their cost. In
addition, these evaluations will determine each program's impact on
related programs and its structure and mechanism for delivery of
services. All programs will be evaluated on a continuing basis and all
evaluations will be conducted by Department of Veterans Affairs staff
assigned to an organizational entity other than those responsible for
program administration. These evaluations will be conducted with
sufficient frequency to allow for an assessment of the continued
effectiveness of the programs.
(b) The program evaluation will be designed to determine if the
existing program supports the intent of the law. A program evaluation
must identify goals and objectives that support this intent, contain a
method to measure fulfillment of the objectives, ascertain the degree to
which goals and objectives are met, and report the findings and
conclusions to Congress, as well as make them available to the public.
(c) The goals must be clear, specific, and measurable. To be clear
they must be readily understood, free from doubt or confusion, and
specific goals must be explicitly set forth. They must be measurable by
objective means. These means can include use of existing record systems,
observations, and information from other sources.
(d) All program evaluations require a detailed evaluation plan. The
evaluation plan must clearly state the objectives of the program
evaluation, the methodology to be used, resources to be committed, and a
timetable of major phases.
(e) Each program evaluation must be objective. It must report the
accomplishments as well as the shortcomings of the program in an
unbiased way. The program evaluation must have findings that give
decision-makers information which is of a level of detail and importance
to enable decisions to be made affecting either direction or operation.
The information in the program evaluation must be timely, and must
contain information of sufficient currency that decisions based on the
data in the evaluation can be made with a high degree of confidence in
the data.
(f) Each program evaluation requires a systematic research design to
collect the data necessary to measure the objectives. This research
design should conform to the following:
(1) Rationale. The research design for each evaluation should
contain a specific rationale and should be structured to determine
possible cause and effect relationships.
(2) Relevancy. It must deal with issues currently existing within
the program, within the Department, and within the environment in which
the program operates.
(3) Validity. The degree of statistical validity should be assessed
within the research design. Alternatives include an assessment of cost
of data collection
[[Page 14]]
vs. results necessary to support decisions.
(4) Reliability. Use of the same research design by others should
yield the same findings.
(g) The final program evaluation report will be reviewed for
comments and concurrence by relevant organizations within the Department
of Veterans Affairs, but in no case should this review unreasonably
delay the results of the evaluation. Where disagreement exists, the
dissenting organization's position should be summarized for a decision
by the Secretary.
(h) The final program evaluation report will be forwarded, with
approved recommendations, to the concerned organization. An action plan
to accomplish the approved recommendations will be forwarded for
evaluation by the evaluating entity.
(i) Program evaluation results should be integrated to the maximum
extent possible into Department of Veterans Affairs plans and budget
submissions to ensure continuity with other Department of Veterans
Affairs management processes.
(Authority: 38 U.S.C. 527)
[47 FR 53735, Nov. 29, 1982, as amended at 54 FR 34980, Aug. 23, 1989]
Sec. 1.17 Evaluation of studies relating to health effects of
radiation exposure.
(a) From time to time, the Secretary shall publish evaluations of
scientific or medical studies relating to the adverse health effects of
exposure to ionizing radiation in the ``Notices'' section of the Federal
Register.
(b) Factors to be considered in evaluating scientific studies
include:
(1) Whether the study's findings are statistically significant and
replicable.
(2) Whether the study and its findings have withstood peer review.
(3) Whether the study methodology has been sufficiently described to
permit replication of the study.
(4) Whether the study's findings are applicable to the veteran
population of interest.
(5) The views of the appropriate panel of the Scientific Council of
the Veterans' Advisory Committee on Environmental Hazards.
(c) When the Secretary determines, based on the evaluation of
scientific or medical studies and after receiving the advice of the
Veterans' Advisory Committee on Environmental Hazards and applying the
reasonable doubt doctrine as set forth in paragraph (d)(1) of this
section, that a significant statistical association exists between any
disease and exposure to ionizing radiation, Sec. 3.311 of this chapter
shall be amended to provide guidelines for the establishment of service
connection.
(d)(1) For purposes of paragraph (c) of this section a significant
statistical association shall be deemed to exist when the relative
weights of valid positive and negative studies permit the conclusion
that it is at least as likely as not that the purported relationship
between exposure to ionizing radiation and a specific adverse health
effect exists.
(2) For purposes of this paragraph a valid study is one which:
(i) Has adequately described the study design and methods of data
collection, verification and analysis;
(ii) Is reasonably free of biases, such as selection, observation
and participation biases; however, if biases exist, the investigator has
acknowledged them and so stated the study's conclusions that the biases
do not intrude upon those conclusions; and
(iii) Has satisfactorily accounted for known confounding factors.
(3) For purposes of this paragraph a valid positive study is one
which satisfies the criteria in paragraph (d)(2) of this section and
whose findings are statistically significant at a probability level of
.05 or less with proper accounting for multiple comparisons and subgroup
analyses.
(4) For purposes of this paragraph a valid negative study is one
which satisfies the criteria in paragraph (d)(2) of this section and has
sufficient statistical power to detect an association between exposure
to ionizing radiation and a specific adverse health effect if such an
association were to exist.
(e) For purposes of assessing the relative weights of valid positive
and negative studies, other studies affecting epidemiological
assessments including case series, correlational studies and studies
with insufficient statistical power as well as key mechanistic and
animal studies which are found to have
[[Page 15]]
particular relevance to an effect on human organ systems may also be
considered.
(f) Notwithstanding the provisions of paragraph (d) of this section,
a significant statistical association may be deemed to exist between
exposure to ionizing radiation and a specific disease if, in the
Secretary's judgment, scientific and medical evidence on the whole
supports such a decision.
(Authority: 38 U.S.C. 501; Pub. L. 98-542, as amended by Pub. L. 102-4)
[54 FR 40391, Oct. 2, 1989; 54 FR 46187, Nov. 1, 1989; 75 FR 17859, Apr.
8, 2010]
Sec. 1.18 Guidelines for establishing presumptions of service
connection for former prisoners of war.
(a) Purpose. The Secretary of Veterans Affairs will establish
presumptions of service connection for former prisoners of war when
necessary to prevent denials of benefits in significant numbers of
meritorious claims.
(b) Standard. The Secretary may establish a presumption of service
connection for a disease when the Secretary finds that there is at least
limited/suggestive evidence that an increased risk of such disease is
associated with service involving detention or internment as a prisoner
of war and an association between such detention or internment and the
disease is biologically plausible.
(1) Definition. The phrase ``limited/suggestive evidence'' refers to
evidence of a sound scientific or medical nature that is reasonably
suggestive of an association between prisoner-of-war experience and the
disease, even though the evidence may be limited because matters such as
chance, bias, and confounding could not be ruled out with confidence or
because the relatively small size of the affected population restricts
the data available for study.
(2) Examples. ``Limited/suggestive evidence'' may be found where one
high-quality study detects a statistically significant association
between the prisoner-of-war experience and disease, even though other
studies may be inconclusive. It also may be satisfied where several
smaller studies detect an association that is consistent in magnitude
and direction. These examples are not exhaustive.
(c) Duration of detention or internment. In establishing a
presumption of service connection under paragraph (b) of this section,
the Secretary may, based on sound scientific or medical evidence,
specify a minimum duration of detention or internment necessary for
application of the presumption.
(d) Association. The requirement in paragraph (b) of this section
that an increased risk of disease be ``associated'' with prisoner-of-war
service may be satisfied by evidence that demonstrates either a
statistical association or a causal association.
(e) Evidence. In making determinations under paragraph (b) of this
section, the Secretary will consider, to the extent feasible:
(1) Evidence regarding the increased incidence of disease in former
prisoners of war;
(2) Evidence regarding the health effects of circumstances or
hardships similar to those experienced by prisoners of war (such as
malnutrition, torture, physical abuse, or psychological stress);
(3) Evidence regarding the duration of exposure to circumstances or
hardships experienced by prisoners of war that is associated with
particular health effects; and
(4) Any other sound scientific or medical evidence the Secretary
considers relevant.
(f) Evaluation of studies. In evaluating any study for the purposes
of this section, the Secretary will consider:
(1) The degree to which the study's findings are statistically
significant;
(2) The degree to which any conclusions drawn from the study data
have withstood peer review;
(3) Whether the methodology used to obtain the data can be
replicated;
(4) The degree to which the data may be affected by chance, bias, or
confounding factors; and
(5) The degree to which the data may be relevant to the experience
of prisoners of war in view of similarities or differences in the
circumstances of the study population.
[[Page 16]]
(g) Contracts for Scientific Review and Analysis. To assist in
making determinations under this section, the Secretary may contract
with an appropriate expert body to review and summarize the scientific
evidence, and assess the strength thereof, concerning the association
between detention or internment as a prisoner of war and the occurrence
of any disease, or for any other purpose relevant to the Secretary's
determinations.
(Authority: 38 U.S.C. 501(a), 1110)
[69 FR 60089, Oct. 7, 2004]
Referrals of Information Regarding Criminal Violations
Sec. 1.200 Purpose.
This subpart establishes a duty upon and sets forth the mechanism
for VA employees to report information about actual or possible criminal
violations to appropriate law enforcement entities.
(Authority: 5 U.S.C. App. 3, 38 U.S.C. 902)
[68 FR 17550, Apr. 10, 2003]
Sec. 1.201 Employee's duty to report.
All VA employees with knowledge or information about actual or
possible violations of criminal law related to VA programs, operations,
facilities, contracts, or information technology systems shall
immediately report such knowledge or information to their supervisor,
any management official, or directly to the Office of Inspector General.
(Authority: 5 U.S.C. App. 3, 38 U.S.C. 902)
[68 FR 17550, Apr. 10, 2003]
Sec. 1.203 Information to be reported to VA Police.
Information about actual or possible violations of criminal laws
related to VA programs, operations, facilities, or involving VA
employees, where the violation of criminal law occurs on VA premises,
will be reported by VA management officials to the VA police component
with responsibility for the VA station or facility in question. If there
is no VA police component with jurisdiction over the offense, the
information will be reported to Federal, state or local law enforcement
officials, as appropriate.
(Authority: 38 U.S.C. 902)
[68 FR 17550, Apr. 10, 2003]
Sec. 1.204 Information to be reported to the Office of Inspector General.
Criminal matters involving felonies will also be immediately
referred to the Office of Inspector General, Office of Investigations.
VA management officials with information about possible criminal matters
involving felonies will ensure and be responsible for prompt referrals
to the OIG. Examples of felonies include but are not limited to, theft
of Government property over $1000, false claims, false statements, drug
offenses, crimes involving information technology systems and serious
crimes against the person, i.e., homicides, armed robbery, rape,
aggravated assault and serious physical abuse of a VA patient.
(Authority: 5 U.S.C. App. 3)
[68 FR 17550, Apr. 10, 2003]
Sec. 1.205 Notification to the Attorney General or United States
Attorney's Office.
VA police and/or the OIG, whichever has primary responsibility
within VA for investigation of the offense in question, will be
responsible for notifying the appropriate United States Attorney's
Office, pursuant to 28 U.S.C. 535.
(Authority: 5 U.S.C. App. 3, 38 U.S.C. 902)
[68 FR 17550, Apr. 10, 2003]
Security and Law Enforcement at Department of Veterans Affairs
Facilities
Sec. 1.218 Security and law enforcement at VA facilities.
(a) Authority and rules of conduct. Pursuant to 38 U.S.C. 901, the
following rules and regulations apply at all property under the charge
and control of VA (and not under the charge and control of the General
Services Administration) and to all persons entering in or on such
property. The head of the facility is charged with the responsibility
for the enforcement of these rules and regulations and shall cause
[[Page 17]]
these rules and regulations to be posted in a conspicuous place on the
property.
(1) Closing property to public. The head of the facility, or
designee, shall establish visiting hours for the convenience of the
public and shall establish specific hours for the transaction of
business with the public. The property shall be closed to the public
during other than the hours so established. In emergency situations, the
property shall be closed to the public when reasonably necessary to
ensure the orderly conduct of Government business. The decision to close
a property during an emergency shall be made by the head of the facility
or designee. The head of the facility or designee shall have authority
to designate areas within a facility as closed to the public.
(2) Recording presence. Admission to property during periods when
such property is closed to the public will be limited to persons
authorized by the head of the facility or designee. Such persons may be
required to sign a register and/or display identification documents when
requested to do so by VA police, or other authorized individual. No
person, without authorization, shall enter upon or remain on such
property while the property is closed. Failure to leave such premises by
unauthorized persons shall constitute an offense under this paragraph.
(3) Preservation of property. The improper disposal of rubbish on
property; the spitting on the property; the creation of any hazard on
property to persons or things; the throwing of articles of any kind from
a building; the climbing upon the roof or any part of the building,
without permission; or the willful destruction, damage, or removal of
Government property or any part thereof, without authorization, is
prohibited. The destruction, mutilation, defacement, injury, or removal
of any monument, gravestone, or other structure within the limits of any
national cemetery is prohibited.
(4) Conformity with signs and emergency conditions. The head of the
facility, or designee, shall have authority to post signs of a
prohibitory and directory nature. Persons, in and on property, shall
comply with such signs of a prohibitory or directory nature, and during
emergencies, with the direction of police authorities and other
authorized officials. Tampering with, destruction, marring, or removal
of such posted signs is prohibited.
(5) Disturbances. Conduct on property which creates loud or unusual
noise; which unreasonably obstructs the usual use of entrances, foyers,
lobbies, corridors, offices, elevators, stairways, or parking lots;
which otherwise impedes or disrupts the performance of official duties
by Government employees; which prevents one from obtaining medical or
other services provided on the property in a timely manner; or the use
of loud, abusive, or otherwise improper language; or unwarranted
loitering, sleeping, or assembly is prohibited. In addition to measures
designed to secure voluntary terminations of violations of this
paragraph the head of the facility or designee may cause the issuance of
orders for persons who are creating a disturbance to depart the
property. Failure to leave the premises when so ordered constitutes a
further disturbance within the meaning of this rule, and the offender is
subject to arrest and removal from the premises.
(6) Gambling. Participating in games for money or for tangible or
intangible things, or the operating of gambling devices, the conduct of
a lottery or pool, or the selling or purchasing of numbers tickets, in
or on property is prohibited.
(7) Alcoholic beverages and narcotics. Operating a motor vehicle on
property by a person under the influence of alcoholic beverages,
narcotic drugs, hallucinogens, marijuana, barbiturates, or amphetamines
is prohibited. Entering property under the influence of any narcotic
drug, hallucinogen, marijuana, barbiturate, amphetamine, or alcoholic
beverage (unless prescribed by a physician) is prohibited. The use on
property of any narcotic drug, hallucinogen, marijuana, barbiturate, or
amphetamine (unless prescribed by a physician) is prohibited. The
introduction or possession of alcoholic beverages or any narcotic drug,
hallucinogen, marijuana, barbiturate, and amphetamine on property is
prohibited, except for liquor or drugs prescribed for use by medical
authority for medical purposes. Provided such
[[Page 18]]
possession is consistent with the laws of the State in which the
facility is located, liquor may be used and maintained in quarters
assigned to employees as their normal abode, and away from the abode
with the written consent of the head of the facility which specifies a
special occasion for use and limits the area and period for the
authorized use.
(8) Soliciting, vending, and debt collection. Soliciting alms and
contributions, commercial soliciting and vending of all kinds,
displaying or distributing commercial advertising, or collecting private
debts in or on property is prohibited. This rule does not apply to (i)
national or local drives for funds for welfare, health, or other
purposes as authorized under Executive Order 12353, Charitable Fund
Raising (March 23, 1982), as amended by Executive Order 12404 (February
10, 1983), and regulations issued by the Office of Personnel Management
implementing these Executive Orders; (ii) concessions or personal
notices posted by employees on authorized bulletin boards; and (iii)
solicitation of labor organization membership or dues under 5 U.S.C.
chapter 71.
(9) Distribution of handbills. The distributing of materials such as
pamphlets, handbills, and/or flyers, and the displaying of placards or
posting of materials on bulletin boards or elsewhere on property is
prohibited, except as authorized by the head of the facility or designee
or when such distributions or displays are conducted as part of
authorized Government activities.
(10) Photographs for news, advertising, or commercial purposes.
Photographs for advertising or commercial purposes may be taken only
with the written consent of the head of the facility or designee.
Photographs for news purposes may be taken at entrances, lobbies,
foyers, or in other places designated by the head of the facility or
designee.
(11) Dogs and other animals. Dogs and other animals, except seeing-
eye dogs, shall not be brought upon property except as authorized by the
head of the facility or designee.
(12) Vehicular and pedestrian traffic. Drivers of all vehicles in or
on property shall drive in a careful and safe manner at all times and
shall comply with the signals and directions of police and all posted
traffic signs. The blocking of entrances, driveways, walks, loading
platforms, or fire hydrants in or on property is prohibited; parking in
unauthorized locations or in locations reserved for other persons or
contrary to the direction of posted signs is prohibited. Creating
excessive noise on hospital or cemetery premises by muffler cut out, the
excessive use of a horn, or other means is prohibited. Operation of a
vehicle in a reckless or unsafe manner, drag racing, bumping, overriding
curbs, or leaving the roadway is prohibited.
(13) Weapons and explosives. No person while on property shall carry
firearms, other dangerous or deadly weapons, or explosives, either
openly or concealed, except for official purposes.
(14) Demonstrations. (i) All visitors are expected to observe proper
standards of decorum and decency while on VA property. Toward this end,
any service, ceremony, or demonstration, except as authorized by the
head of the facility or designee, is prohibited. Jogging, bicycling,
sledding and other forms of physical recreation on cemetery grounds is
prohibited.
(ii) For the purpose of the prohibition expressed in this paragraph,
unauthorized demonstrations or services shall be defined as, but not
limited to, picketing, or similar conduct on VA property; any oration or
similar conduct to assembled groups of people, unless the oration is
part of an authorized service; the display of any placards, banners, or
foreign flags on VA property unless approved by the head of the facility
or designee; disorderly conduct such as fighting, threatening, violent,
or tumultuous behavior, unreasonable noise or coarse utterance, gesture
or display or the use of abusive language to any person present; and
partisan activities, i.e., those involving commentary or actions in
support of, or in opposition to, or attempting to influence, any current
policy of the Government of the United States, or any private group,
association, or enterprise.
(15) Key security. The head of the facility of designee, will
determine which employees, by virtue of their duties, shall have access
to keys or barrier-
[[Page 19]]
card keys which operate locks to rooms or areas on the property. The
unauthorized possession, manufacture, and/or use of such keys or barrier
cards is prohibited. The surreptitious opening or attempted opening of
locks or card-operated barrier mechanisms is prohibited.
(16) Sexual misconduct. Any act of sexual gratification on VA
property involving two or more persons, who do not reside in quarters on
the property, is prohibited. Acts of prostitution or solicitation for
acts of prostitution on VA property is prohibited. For the purposes of
this paragraph, an act of prostitution is defined as the performance or
the offer or agreement to perform any sexual act for money or payment.
(b) Schedule of offenses and penalties. Conduct in violation of the
rules and regulations set forth in paragraph (a) of this section
subjects an offender to arrest and removal from the premises. Whomever
shall be found guilty of violating these rules and regulations while on
any property under the charge and control of VA is subject to a fine as
stated in the schedule set forth herein or, if appropriate, the payment
of fixed sum in lieu of appearance (forfeiture of collateral) as may be
provided for in rules of the United States District Court. Violations
included in the schedule of offenses and penalties may also subject an
offender to a term of imprisonment of not more than six months, as may
be determined appropriate by a magistrate or judge of the United States
District Court:
(1) Improper disposal of rubbish on property, $200.
(2) Spitting on property, $25.
(3) Throwing of articles from a building or the unauthorized
climbing upon any part of a building, $50.
(4) Willful destruction, damage, or removal of Government property
without authorization, $500.
(5) Defacement, destruction, mutilation or injury to, or removal, or
disturbance of, gravemarker or headstone, $500.
(6) Failure to comply with signs of a directive and restrictive
nature posted for safety purposes, $50.
(7) Tampering with, removal, marring, or destruction of posted
signs, $150.
(8) Entry into areas posted as closed to the public or others
(trespass), $50.
(9) Unauthorized demonstration or service in a national cemetery or
on other VA property, $250.
(10) Creating a disturbance during a burial ceremony, $250.
(11) Disorderly conduct which creates loud, boisterous, and unusual
noise, or which obstructs the normal use of entrances, exits, foyers,
offices, corridors, elevators, and stairways or which tends to impede or
prevent the normal operation of a service or operation of the facility,
$250.
(12) Failure to depart premises by unauthorized persons, $50.
(13) Unauthorized loitering, sleeping or assembly on property, $50.
(14) Gambling-participating in games of chance for monetary gain or
personal property; the operation of gambling devices, a pool or lottery;
or the taking or giving of bets, $200.
(15) Operation of a vehicle under the influence of alcoholic
beverages or nonprescribed narcotic drugs, hallucinogens, marijuana,
barbiturates, or amphetamines, $500.
(16) Entering premises under the influence of alcoholic beverages or
narcotic drugs, hallucinogens, marijuana, barbiturates or amphetamines,
$200.
(17) Unauthorized use on property of alcoholic beverages or narcotic
drugs, hallucinogens, marijuana, barbiturates, or amphetamines, $300.
(18) Unauthorized introduction on VA controlled property of
alcoholic beverages or narcotic drugs, hallucinogens, marijuana,
barbiturates, or amphetamines or the unauthorized giving of same to a
patient or beneficiary, $500.
(19) Unauthorized solicitation of alms and contributions on
premises, $50.
(20) Commercial soliciting or vending, or the collection of private
debts on property, $50.
(21) Distribution of pamphlets, handbills, and flyers, $25.
(22) Display of placards or posting of material on property, $25.
(23) Unauthorized photography on premises, $50.
(24) Failure to comply with traffic directions of VA police, $25.
[[Page 20]]
(25) Parking in spaces posted as reserved for physically disabled
persons, $50.
(26) Parking in no-parking areas, lanes, or crosswalks so posted or
marked by yellow borders or yellow stripes, $25.
(27) Parking in emergency vehicle spaces, areas and lanes bordered
in red or posted as EMERGENCY VEHICLES ONLY or FIRE LANE, or parking
within 15 feet of a fire hydrant, $50.
(28) Parking within an intersection or blocking a posted vehicle
entrance or posted exit lane, $25.
(29) Parking in spaces posted as reserved or in excess of a posted
time limit, $15.
(30) Failing to come to a complete stop at a STOP sign, $25.
(31) Failing to yield to a pedestrian in a marked and posted
crosswalk, $25.
(32) Driving in the wrong direction on a posted one-way street, $25.
(33) Operation of a vehicle in a reckless or unsafe manner, too fast
for conditions, drag racing, overriding curbs, or leaving the roadway,
$100.
(34) Exceeding posted speed limits:
(i) By up to 10 mph, $25.
(ii) By up to 20 mph, $50.
(iii) By over 20 mph, $100.
(35) Creating excessive noise in a hospital or cemetery zone by
muffler cut out, excessive use of a horn, or other means, $50.
(36) Failure to yield right of way to other vehicles, $50.
(37) Possession of firearms, carried either openly or concealed,
whether loaded or unloaded (except by Federal or State law enforcement
officers on official business, $500.
(38) Introduction or possession of explosives, or explosive devices
which fire a projectile, ammunition, or combustibles, $500.
(39) Possession of knives which exceed a blade length of 3 inches;
switchblade knives; any of the variety of hatchets, clubs and hand-held
weapons; or brass knuckles, $300.
(40) The unauthorized possession of any of the variety of
incapacitating liquid or gas-emitting weapons, $200.
(41) Unauthorized possession, manufacture, or use of keys or barrier
card-type keys to rooms or areas on the property, $200.
(42) The surreptitious opening, or attempted opening, of locks or
card-operated barrier mechanisms on property, $500.
(43) Soliciting for, or the act of, prostitution, $250.
(44) Any unlawful sexual activity, $250.
(45) Jogging, bicycling, sledding or any recreational physical
activity conducted on cemetery grounds, $50.
(c) Enforcement procedures. (1) VA administration directors will
issue policies and operating procedures governing the proper exercise of
arrest and other law enforcement actions, and limiting the carrying and
use of weapons by VA police officers. VA police officers found qualified
under respective VA administration directives and duly appointed heads
of facilities for the purposes of 38 U.S.C. 902(b)(1), will enforce
these rules and regulations and other Federal laws on VA property in
accordance with the policies and operating procedures issued by
respective VA administration directors and under the direction of the
head of the facility.
(2) VA administration directors will prescribe training for VA
police officers of the scope and duration necessary to assure the proper
exercise of the law enforcement and arrest authority vested in them and
to assure their abilities in the safe handling of situations involving
patients and the public in general. VA police officers will successfully
complete prescribed training in law enforcement procedures and the safe
handling of patients as a condition of their retention of statutory law
enforcement and arrest authority.
(3) Nothing contained in the rules and regulations set forth in
paragraph (a) of this section shall be construed to abrogate any other
Federal laws or regulations, including assimilated offenses under 18
U.S.C. 13, or any State or local laws and regulations applicable to the
area in which the property is situated.
(Authority: 38 U.S.C. 901)
[50 FR 29226, July 18, 1985]
[[Page 21]]
Parking Fees at VA Medical Facilities
Sec. 1.300 Purpose.
Sections 1.300 through 1.303 prescribe policies and procedures for
establishing parking fees for the use of Department of Veterans Affairs
controlled parking spaces at VA medical facilities.
(Authority: 38 U.S.C. 501, 8109)
[53 FR 25490, July 7, 1988]
Sec. 1.301 Definitions.
As used in Sec. Sec. 1.300 through 1.303 of this title:
(a) Secretary means the Secretary of Veterans Affairs.
(b) Eligible person means any individual to whom the Secretary is
authorized to furnish medical examination or treatment.
(c) Garage means a structure or part of a structure in which
vehicles may be parked.
(d) Medical facility means any facility or part thereof which is
under the jurisdiction of the Secretary for the provision of health-care
services, including any necessary buildings and structures, garage or
parking facility.
(e) Parking facilities includes all surface and garage parking
spaces at a VA medical facility.
(f) Volunteer worker means an individual who performs services,
without compensation, under the auspices of VA Voluntary Service (VAVS)
at a VA medical facility, for the benefit of veterans receiving care at
that medical facility.
(Authority: 38 U.S.C. 8109)
[53 FR 25490, July 7, 1988]
Sec. 1.302 Applicability and scope.
(a) The provisions of Sec. Sec. 1.300 through 1.303 apply to VA
medical facility parking facilities in the United States, its
territories and possessions, and the Commonwealth of Puerto Rico, and to
such parking facilities for the use of VA medical facilities jointly
shared by VA and another Federal agency when the facility is operated by
the VA. Sections 1.300 through 1.303 apply to all users of those parking
facilities. Fees shall be assessed and collected at medical facilities
where parking garages are constructed, acquired, or altered at a cost
exceeding $500,000 (or, in the case of acquisition by lease, $100,000
per year). The Secretary, in the exercise of official discretion, may
also determine that parking fees shall be charged at any other VA
medical facility.
(b) All fees established shall be reasonable under the circumstances
and shall cover all parking facilities used in connection with such VA
medical facility.
(Authority: 38 U.S.C. 8109)
[53 FR 25490, July 7, 1988]
Sec. 1.303 Policy.
(a) General. Parking spaces at VA medical facilities shall only be
provided under the following conditions:
(1) VA and its employees shall not be liable for any damages to
vehicles (or their contents) parked in VA parking facilities, unless
such damages are directly caused by such employees acting in the course
of their VA employment.
(2) Parking facilities at VA medical facilities shall only be made
available at each medical facility for such periods and under such terms
as prescribed by the facility director, consistent with Sec. Sec. 1.300
through 1.303.
(3) VA will limit parking facilities at VA medical facilities to the
minimum necessary, and administer those parking facilities in full
compliance with ridesharing regulations and Federal laws.
(b) Fees. (1) As provided in Sec. 1.302, VA will assess VA
employees, contractor employees, tenant employees, visitors, and other
individuals having business at a VA medical facility where VA parking
facilities are available, a parking fee for the use of that parking
facility. All parking fees shall be set at a rate which shall be
equivalent to one-half of the appropriate fair rental value (i.e.,
monthly, weekly, daily, hourly) for the use of equivalent commercial
space in the vicinity of the medical facility, subject to the terms and
conditions stated in paragraph (a) of this section. Fair rental value
shall include an allowance for the costs of management of the parking
facilities. The Secretary will determine the fair market rental value
through use of generally accepted appraisal techniques. If the
[[Page 22]]
appraisal establishes that there is no comparable commercial rate
because of the absence of commercial parking facilities within a two-
mile radius of the medical facility, then the rate established shall be
not less than the lowest rate charged for parking at the VA medical
facility with the lowest established parking fees. Rates established
shall be reviewed biannually by the Secretary to reflect any increase or
decrease in value as determined by appraisal updating.
(2) No parking fees shall be established or collected for parking
facilities used by or for vehicles of the following:
(i) Volunteer workers in connection with such workers performing
services for the benefit of veterans receiving care at the medical
facility;
(ii) A veteran or an eligible person in connection with such veteran
or eligible person receiving examination or treatment;
(iii) An individual transporting a veteran or eligible person
seeking examination or treatment; and
(iv) Federal Government employees using Government owned or leased
or private vehicles for official business.
(Authority: 38 U.S.C. 8109)
[53 FR 25490, July 7, 1988]
Release of Information From Department of Veterans Affairs (VA) Records
Relating to Drug Abuse, Alcoholism or Alcohol Abuse, Infection With the
Human Immunodeficiency Virus (HIV), or Sickle Cell Anemia
Note: Sections 1.460 through 1.499 of this part concern the
confidentiality of information relating to drug abuse, alcoholism or
alcohol abuse, infection with the human immunodeficiency virus, or
sickle cell anemia in VA records and are applicable in combination with
other regulations pertaining to the release of information from VA
records. Sections 1.500 through 1.527, Title 38, Code of Federal
Regulations, implement the provisions of 38 U.S.C. Sec. Sec. 5701 and
5702. Sections 1.550 through 1.559 implement the provisions of 5 U.S.C.
Sec. 552 (The Freedom of Information Act). Sections 1.575 through 1.584
implement the provisions of 5 U.S.C. Sec. 552a (The Privacy Act of
1974).
The provisions of Sec. Sec. 1.460 through 1.499 of this part
pertain to any program or activity, including education, treatment,
rehabilitation or research, which relates to drug abuse, alcoholism or
alcohol abuse, infection with the human immunodeficiency virus, or
sickle cell anemia. The statutory authority for the drug abuse
provisions and alcoholism or alcohol abuse provisions of Sec. Sec.
1.460 through 1.499 is Sec. 111 of Pub. L. 94-581, the Veterans Omnibus
Health Care Act of 1976 (38 U.S.C. Sec. Sec. 7331 through 7334), the
authority for the human immunodeficiency virus provisions is Sec. 121 of
Pub. L. 100-322, the Veterans' Benefits and Services Act of 1988 (38
U.S.C. Sec. 7332); the authority for the sickle cell anemia provisions
is Sec. 109 of Pub. L. 93-82, the Veterans Health Care Expansion Act of
1973 (38 U.S.C. Sec. Sec. 1751-1754).
Authority: 38 U.S.C. 1751-1754 and 7331-7334.
Source: 60 FR 63929, Dec. 13, 1995, unless otherwise noted.
Sec. 1.460 Definitions.
For purposes of Sec. Sec. 1.460 through 1.499 of this part, the
following definitions apply:
Agreement. The term ``agreement'' means a document that a VA health
care facility develops in collaboration with an Organ Procurement
Organization, eye bank or tissue bank with written, detailed
responsibilities and obligations of the parties with regard to
identifying potential donors and facilitating the donation process.
Alcohol abuse. The term ``alcohol abuse'' means the use of an
alcoholic beverage which impairs the physical, mental, emotional, or
social well-being of the user.
Contractor. The term ``contractor'' means a person who provides
services to VA such as data processing, dosage preparation, laboratory
analyses or medical or other professional services. Each contractor
shall be required to enter into a written agreement subjecting such
contractor to the provisions of Sec. Sec. 1.460 through 1.499 of this
part; 38 U.S.C. 5701 and 7332; and 5 U.S.C. 552a and 38 CFR 1.576(g).
Deceased. The term ``deceased'' means death established by either
neurological criteria (brain death) or cardiopulmonary criteria (cardiac
death). Brain death is the irreversible cessation of all brain function.
Cardiac death is the irreversible cessation of circulatory and
respiratory function. In both cases, ``irreversible'' means
[[Page 23]]
that function will not resume spontaneously and will not be restarted
artificially.
Decision-making capacity. The term ``decision-making capacity'' has
the same meaning set forth in 38 CFR 17.32(a).
Diagnosis. The term ``diagnosis'' means any reference to an
individual's alcohol or drug abuse or to a condition which is identified
as having been caused by that abuse or any reference to sickle cell
anemia or infection with the human immunodeficiency virus which is made
for the purpose of treatment or referral for treatment. A diagnosis
prepared for the purpose of treatment or referral for treatment but
which is not so used is covered by Sec. Sec. 1.460 through 1.499 of
this part. These regulations do not apply to a diagnosis of drug
overdose or alcohol intoxication which clearly shows that the individual
involved is not an alcohol or drug abuser (e.g., involuntary ingestion
of alcohol or drugs or reaction to a prescribed dosage of one or more
drugs).
Disclose or disclosure. The term ``disclose'' or ``disclosure''
means a communication of patient identifying information, the
affirmative verification of another person's communication of patient
identifying information, or the communication of any information from
the record of a patient who has been identified.
Drug abuse. The term ``drug abuse'' means the use of a psychoactive
substance for other than medicinal purposes which impairs the physical,
mental, emotional, or social well-being of the user.
Eye bank and tissue bank. The term ``eye bank and tissue bank''
means an ``establishment'' as defined in 21 CFR 1271.3, pursuant to
section 361 of the Public Health Service Act (42 U.S.C. 264) that has a
valid, current registration with the Federal Food and Drug
Administration (FDA) as required under 21 CFR part 1271.
Individual. The term ``individual'' means a veteran, as defined in
38 U.S.C. 101(2), or a dependent of a veteran, as defined in 38 U.S.C.
101(3) and (4)(A).
Infection with the human immunodeficiency virus (HIV). The term
``infection with the human immunodeficiency virus (HIV)'' means the
presence of laboratory evidence for human immunodeficiency virus
infection. For the purposes of Sec. Sec. 1.460 through 1.499 of this
part, the term includes the testing of an individual for the presence of
the virus or antibodies to the virus and information related to such
testing (including tests with negative results).
Informant. The term ``informant'' means an individual who is a
patient or employee or who becomes a patient or employee at the request
of a law enforcement agency or official and who at the request of a law
enforcement agency or official observes one or more patients or
employees for the purpose of reporting the information obtained to the
law enforcement agency or official.
Near death. The term ``near death'' means that in the clinical
judgment of the patient's health care provider based on defined clinical
triggers, the patient's death is imminent.
Organ Procurement Organization. The term ``Organ Procurement
Organization'' (OPO) means an organization that performs or coordinates
the procurement, preservation, and transportation of organs and
maintains a system of locating prospective recipients for available
organs.
Patient. The term ``patient'' means any individual or subject who
has applied for or been given a diagnosis or treatment for drug abuse,
alcoholism or alcohol abuse, infection with the human immunodeficiency
virus, or sickle cell anemia and includes any individual who, after
arrest on a criminal charge, is interviewed and/or tested in connection
with drug abuse, alcoholism or alcohol abuse, infection with the human
immunodeficiency virus, or sickle cell anemia in order to determine that
individual's eligibility to participate in a treatment or rehabilitation
program. The term patient includes an individual who has been diagnosed
or treated for alcoholism, drug abuse, HIV infection, or sickle cell
anemia for purposes of participation in a VA program or activity
relating to those four conditions, including a program or activity
consisting of treatment, rehabilitation, education, training,
evaluation, or research. The term ``patient'' for the purpose of
infection with the human immunodeficiency
[[Page 24]]
virus or sickle cell anemia, includes one tested for the disease.
Patient identifying information. The term ``patient identifying
information'' means the name, address, social security number,
fingerprints, photograph, or similar information by which the identity
of a patient can be determined with reasonable accuracy and speed either
directly or by reference to other publicly available information. The
term does not include a number assigned to a patient by a treatment
program, if that number does not consist of, or contain numbers (such as
social security, or driver's license number) which could be used to
identify a patient with reasonable accuracy and speed from sources
external to the treatment program.
Person. The term ``person'' means an individual, partnership,
corporation, Federal, State or local government agency, or any other
legal entity.
Practitioner. The term ``practitioner'' has the same meaning set
forth in 38 CFR 17.32(a).
Procurement organization. The term ``procurement organization''
means an organ procurement organization, eye bank, and/or tissue bank as
defined in this section.
Records. The term ``records'' means any information received,
obtained or maintained, whether recorded or not, by an employee or
contractor of VA, for the purpose of seeking or performing VA program or
activity functions relating to drug abuse, alcoholism, tests for or
infection with the human immunodeficiency virus, or sickle cell anemia
regarding an identifiable patient. A program or activity function
relating to drug abuse, alcoholism, infection with the human
immunodeficiency virus, or sickle cell anemia includes evaluation,
treatment, education, training, rehabilitation, research, or referral
for one of these conditions. Sections 1.460 through 1.499 of this part
apply to a primary or other diagnosis, or other information which
identifies, or could reasonably be expected to identify, a patient as
having a drug or alcohol abuse condition, infection with the human
immunodeficiency virus, or sickle cell anemia (e.g., alcoholic
psychosis, drug dependence), but only if such diagnosis or information
is received, obtained or maintained for the purpose of seeking or
performing one of the above program or activity functions. Sections
1.460 through 1.499 of this part do not apply if such diagnosis or other
information is not received, obtained or maintained for the purpose of
seeking or performing a function or activity relating to drug abuse,
alcoholism, infection with the human immunodeficiency virus, or sickle
cell anemia for the patient in question. Whenever such diagnosis or
other information, not originally received or obtained for the purpose
of obtaining or providing one of the above program or activity
functions, is subsequently used in connection with such program or
activity functions, those original entries become a ``record'' and
Sec. Sec. 1.460 through 1.499 of this part thereafter apply to those
entries. Segregability: these regulations do not apply to records or
information contained therein, the disclosure of which (the
circumstances surrounding the disclosure having been considered) could
not reasonably be expected to disclose the fact that a patient has been
connected with a VA program or activity function relating to drug abuse,
alcoholism, infection with the human immunodeficiency virus, or sickle
cell anemia.
(1) The following are examples of instances whereby records or
information related to alcoholism or drug abuse are covered by the
provisions of Sec. Sec. 1.460 through 1.499 of this part:
(i) A patient with alcoholic delirium tremens is admitted for
detoxification. The patient is offered treatment in a VA alcohol
rehabilitation program which he declines.
(ii) A patient who is diagnosed as a drug abuser applies for and is
provided VA drug rehabilitation treatment.
(iii) While undergoing treatment for an unrelated medical condition,
a patient discusses with the physician his use and abuse of alcohol. The
physician offers VA alcohol rehabilitation treatment which is declined
by the patient.
(2) The following are examples of instances whereby records or
information related to alcoholism or drug abuse are not covered by the
provisions of Sec. Sec. 1.460 through 1.499 of this part:
[[Page 25]]
(i) A patient with alcoholic delirium tremens is admitted for
detoxification, treated and released with no counseling or treatment for
the underlying condition of alcoholism.
(ii) While undergoing treatment for an unrelated medical condition,
a patient informs the physician of a history of drug abuse fifteen years
earlier with no ingestion of drugs since. The history and diagnosis of
drug abuse is documented in the hospital summary and no treatment is
sought by the patient or offered or provided by VA during the current
period of treatment.
(iii) While undergoing treatment for injuries sustained in an
accident, a patient's medical record is documented to support the
judgment of the physician to prescribe certain alternate medications in
order to avoid possible drug interactions in view of the patient's
enrollment and treatment in a non-VA methadone maintenance program. The
patient states that continued treatment and follow-up will be obtained
from private physicians and VA treatment for the drug abuse is not
sought by the patient nor provided or offered by the staff.
(iv) A patient is admitted to the emergency room suffering from a
possible drug overdose. The patient is treated and released; a history
and diagnosis of drug abuse may be documented in the hospital summary.
The patient is not offered treatment for the underlying conditions of
drug abuse, nor is treatment sought by the patient for that condition.
Surrogate. The term ``surrogate'' has the same meaning set forth in
38 CFR 17.32(a).
Third party payer. The term ``third party payer'' means a person who
pays, or agrees to pay, for diagnosis or treatment furnished to a
patient on the basis of a contractual relationship with the patient or a
member of his or her family or on the basis of the patient's eligibility
for Federal, State, or local governmental benefits.
Treatment. The term ``treatment'' means the management and care of a
patient for drug abuse, alcoholism or alcohol abuse, infection with the
human immunodeficiency virus, or sickle cell anemia, or a condition
which is identified as having been caused by one or more of these
conditions, in order to reduce or eliminate the adverse effects upon the
patient. The term includes testing for the human immunodeficiency virus
or sickle cell anemia.
Undercover agent. The term ``undercover agent'' means an officer of
any Federal, State, or local law enforcement agency who becomes a
patient or employee for the purpose of investigating a suspected
violation of law or who pursues that purpose after becoming a patient or
becoming employed for other purposes.
VHA health care facilty. The term ``VHA health care facility'' means
a VA medical center, VA emergency room, VA nursing home or other
facility as defined in 38 U.S.C. 1701(3).
(Authority: 38 U.S.C. 7332, 7334)
[60 FR 63929, Dec. 13, 1995, as amended at 72 FR 48241, Aug. 23, 2007;
73 FR 65260, Nov. 3, 2008; 76 FR 6696, Feb. 8, 2011]
Sec. 1.461 Applicability.
(a) General--(1) Restrictions on disclosure. The restrictions on
disclosure in these regulations apply to any information whether or not
recorded, which:
(i) Would identify a patient as an alcohol or drug abuser, an
individual tested for or infected with the human immunodeficiency virus
(HIV), hereafter referred to as HIV, or an individual with sickle cell
anemia, either directly, by reference to other publicly available
information, or through verification of such an identification by
another person; and
(ii) Is provided or obtained for the purpose of treating alcohol or
drug abuse, infection with the HIV, or sickle cell anemia, making a
diagnosis for that treatment, or making a referral for that treatment as
well as for education, training, evaluation, rehabilitation and research
program or activity purposes.
(2) Restriction on use. The restriction on use of information to
initiate or substantiate any criminal charges against a patient or to
conduct any criminal investigation of a patient applies to any
information, whether or not recorded, which is maintained for the
purpose of treating drug abuse, alcoholism or alcohol abuse, infection
with the HIV, or sickle cell anemia,
[[Page 26]]
making a diagnosis for that treatment, or making a referral for that
treatment as well as for education, training, evaluation,
rehabilitation, and research program or activity purposes.
(b) Period covered as affecting applicability. The provisions of
Sec. Sec. 1.460 through 1.499 of this part apply to records of
identity, diagnosis, prognosis, or treatment pertaining to any given
individual maintained over any period of time which, irrespective of
when it begins, does not end before March 21, 1972, in the case of
diagnosis or treatment for drug abuse; or before May 14, 1974, in the
case of diagnosis or treatment for alcoholism or alcohol abuse; or
before September 1, 1973, in the case of testing, diagnosis or treatment
of sickle cell anemia; or before May 20, 1988, in the case of testing,
diagnosis or treatment for an infection with the HIV.
(c) Exceptions--(1) Department of Veterans Affairs and Armed Forces.
The restrictions on disclosure in Sec. Sec. 1.460 through 1.499 of this
part do not apply to communications of information between or among
those components of VA who have a need for the information in connection
with their duties in the provision of health care, adjudication of
benefits, or in carrying out administrative responsibilities related to
those functions, including personnel of the Office of the Inspector
General who are conducting audits, evaluations, healthcare inspections,
or non-patient investigations, or between such components and the Armed
Forces, of information pertaining to a person relating to a period when
such person is or was subject to the Uniform Code of Military Justice.
Information obtained by VA components under these circumstances may be
disclosed outside of VA to prosecute or investigate a non-patient only
in accordance with Sec. 1.495 of this part. Similarly, the restrictions
on disclosure in Sec. Sec. 1.460 through 1.499 of this part do not
apply to communications of information to the Department of Justice or
U.S. Attorneys who are providing support in civil litigation or possible
litigation involving VA.
(2) Contractor. The restrictions on disclosure in Sec. Sec. 1.460
through 1.499 of this part do not apply to communications between VA and
a contractor of information needed by the contractor to provide his or
her services.
(3) Crimes on VA premises or against VA personnel. The restrictions
on disclosure and use in Sec. Sec. 1.460 through 1.499 of this part do
not apply to communications from VA personnel to law enforcement
officers which:
(i) Are directly related to a patient's commission of a crime on the
premises of the facility or against personnel of VA or to a threat to
commit such a crime; and
(ii) Are limited to the circumstances of the incident, including the
patient status of the individual committing or threatening to commit the
crime, that individual's name and address to the extent authorized by 38
U.S.C. 5701(f)(2), and that individual's last known whereabouts.
(4) Undercover agents and informants. (i) Except as specifically
authorized by a court order granted under Sec. 1.495 of this part, VA
may not knowingly employ, or admit as a patient, any undercover agent or
informant in any VA drug abuse, alcoholism or alcohol abuse, HIV
infection, or sickle cell anemia treatment program.
(ii) No information obtained by an undercover agent or informant,
whether or not that undercover agent or informant is placed in a VA drug
abuse, alcoholism or alcohol abuse, HIV infection, or sickle cell anemia
treatment program pursuant to an authorizing court order, may be used to
criminally investigate or prosecute any patient unless authorized
pursuant to the provisions of Sec. 1.494 of this part.
(iii) The enrollment of an undercover agent or informant in a
treatment unit shall not be deemed a violation of this section if the
enrollment is solely for the purpose of enabling the individual to
obtain treatment for drug or alcohol abuse, HIV infection, or sickle
cell anemia.
(d) Applicability to recipients of information--(1) Restriction on
use of information. In the absence of a proper Sec. 1.494 court order,
the restriction on the use of any information subject to Sec. Sec.
1.460 through 1.499 of this part to initiate or substantiate any
criminal charges against a patient or to conduct any criminal
investigation of a patient applies to any person who obtains that
[[Page 27]]
information from VA, regardless of the status of the person obtaining
the information or of whether the information was obtained in accordance
with Sec. Sec. 1.460 through 1.499 of this part. This restriction on
use bars, among other things, the introduction of that information as
evidence in a criminal proceeding and any other use of the information
to investigate or prosecute a patient with respect to a suspected crime.
Information obtained by undercover agents or informants (see paragraph
(c) of this section) or through patient access (see Sec. 1.469 of this
part) is subject to the restriction on use.
(2) Restrictions on disclosures--third-party payers and others. The
restrictions on disclosure in Sec. Sec. 1.460 through 1.499 of this
part apply to third-party payers and persons who, pursuant to a consent,
receive patient records directly from VA and who are notified of the
restrictions on redisclosure of the records in accordance with Sec.
1.476 of this part.
(Authority: 38 U.S.C. 7332(e) and 7334)
Sec. 1.462 Confidentiality restrictions.
(a) General. The patient records to which Sec. Sec. 1.460 through
1.499 of this part apply may be disclosed or used only as permitted by
these regulations and may not otherwise be disclosed or used in any
civil, criminal, administrative, or legislative proceedings conducted by
any Federal, State, or local authority. Any disclosure made under these
regulations must be limited to that information which is necessary to
carry out the purpose of the disclosure.
(b) Unconditional compliance required. The restrictions on
disclosure and use in Sec. Sec. 1.460 through 1.499 of this part apply
whether the person seeking the information already has it, has other
means of obtaining it, is a law enforcement or other official, has
obtained a subpoena, or asserts any other justification for a disclosure
or use which is not permitted by Sec. Sec. 1.460 through 1.499 of this
part. These provisions do not prohibit VA from acting accordingly when
there is no disclosure of information.
(c) Acknowledging the presence of patients: responding to requests.
(1) The presence of an identified patient in a VA facility for the
treatment or other VA program activity relating to drug abuse,
alcoholism or alcohol abuse, infection with the HIV, or sickle cell
anemia may be acknowledged only if the patient's written consent is
obtained in accordance with Sec. 1.475 of this part or if an
authorizing court order is entered in accordance with Sec. Sec. 1.490
through 1.499 of this part. Acknowledgment of the presence of an
identified patient in a facility is permitted if the acknowledgment does
not reveal that the patient is being treated for or is otherwise
involved in a VA program or activity concerning drug abuse, alcoholism
or alcohol abuse, infection with the HIV, or sickle cell anemia.
(2) Any answer to a request for a disclosure of patient records
which is not permissible under Sec. Sec. 1.460 through 1.499 of this
part must be made in a way that will not affirmatively reveal that an
identified individual has been, or is being diagnosed or treated for
drug abuse, alcoholism or alcohol abuse, infection with the HIV, or
sickle cell anemia. These regulations do not restrict a disclosure that
an identified individual is not and never has been a patient.
(Authority: 38 U.S.C. 7334)
Sec. 1.463 Criminal penalty for violations.
Under 38 U.S.C. 7332(g), any person who violates any provision of
this statute or Sec. Sec. 1.460 through 1.499 of this part shall be
fined not more than $5,000 in the case of a first offense, and not more
than $20,000 for a subsequent offense.
(Authority: 38 U.S.C. 7332(g))
Sec. 1.464 Minor patients.
(a) Definition of minor. As used in Sec. Sec. 1.460 through 1.499
of this part the term ``minor'' means a person who has not attained the
age of majority specified in the applicable State law, or if no age of
majority is specified in the applicable State law, the age of eighteen
years.
(b) State law not requiring parental consent to treatment. If a
minor patient acting alone has the legal capacity under the applicable
State law to apply for and obtain treatment for drug abuse, alcoholism
or alcohol abuse, infection with the HIV, or sickle cell anemia, any
written consent for disclosure
[[Page 28]]
authorized under Sec. 1.475 of this part may be given only by the minor
patient. This restriction includes, but is not limited to, any
disclosure of patient identifying information to the parent or guardian
of a minor patient for the purpose of obtaining financial reimbursement.
Sections 1.460 through 1.499 of this part do not prohibit a VA facility
from refusing to provide nonemergent treatment to an otherwise
ineligible minor patient until the minor patient consents to the
disclosure necessary to obtain reimbursement for services from a third
party payer.
(c) State law requiring parental consent to treatment. (1) Where
State law requires consent of a parent, guardian, or other person for a
minor to obtain treatment for drug abuse, alcoholism or alcohol abuse,
infection with the HIV, or sickle cell anemia, any written consent for
disclosure authorized under Sec. 1.475 of this part must be given by
both the minor and his or her parent, guardian, or other person
authorized under State law to act in the minor's behalf.
(2) Where State law requires parental consent to treatment, the fact
of a minor's application for treatment may be communicated to the
minor's parent, guardian, or other person authorized under State law to
act in the minor's behalf only if:
(i) The minor has given written consent to the disclosure in
accordance with Sec. 1.475 of this part; or
(ii) The minor lacks the capacity to make a rational choice
regarding such consent as judged by the appropriate VA facility director
under paragraph (d) of this section.
(d) Minor applicant for service lacks capacity for rational choice.
Facts relevant to reducing a threat to the life or physical well being
of the applicant or any other individual may be disclosed to the parent,
guardian, or other person authorized under State law to act in the
minor's behalf if the appropriate VA facility director judges that:
(1) A minor applicant for services lacks capacity because of extreme
youth or mental or physical condition to make a rational decision on
whether to consent to a disclosure under Sec. 1.475 of this part to his
or her parent, guardian, or other person authorized under State law to
act in the minor's behalf, and
(2) The applicant's situation poses a substantial threat to the life
or physical well-being of the applicant or any other individual which
may be reduced by communicating relevant facts to the minor's parent,
guardian, or other person authorized under State law to act in the
minor's behalf.
(Authority: 38 U.S.C. 7334)
Sec. 1.465 Incompetent and deceased patients.
(a) Incompetent patients other than minors. In the case of a patient
who has been adjudicated as lacking the capacity, for any reason other
than insufficient age, to manage his or her own affairs, any consent
which is required under Sec. Sec. 1.460 through 1.499 of this part may
be given by a court appointed legal guardian.
(b) Deceased patients--(1) Vital statistics. Sec. 1.460 through
1.499 of this part do not restrict the disclosure of patient identifying
information relating to the cause of death of a patient under laws
requiring the collection of death or other vital statistics or
permitting inquiry into the cause of death.
(2) Consent by personal representative. Any other disclosure of
information identifying a deceased patient as being treated for drug
abuse, alcoholism or alcohol abuse, infection with the HIV, or sickle
cell anemia is subject to Sec. Sec. 1.460 through 1.499 of this part.
If a written consent to the disclosure is required, the Under Secretary
for Health or designee may, upon the prior written request of the next
of kin, executor/executrix, administrator/administratrix, or other
personal representative of such deceased patient, disclose the contents
of such records, only if the Under Secretary for Health or designee
determines such disclosure is necessary to obtain survivorship benefits
for the deceased patient's survivor. This would include not only VA
benefits, but also payments by the Social Security Administration,
Worker's Compensation Boards or Commissions, or other Federal, State, or
local government agencies, or nongovernment entities, such as life
insurance companies.
[[Page 29]]
(3) Information related to sickle cell anemia. Information related
to sickle cell anemia may be released to a blood relative of a deceased
veteran for medical follow-up or family planning purposes.
(Authority: 38 U.S.C. 7332(b)(3))
Sec. 1.466 Security for records.
(a) Written records which are subject to Sec. Sec. 1.460 through
1.499 of this part must be maintained in a secure room, locked file
cabinet, safe or other similar container when not in use. Access to
information stored in computers will be limited to authorized VA
employees who have a need for the information in performing their
duties. These security precautions shall be consistent with the Privacy
Act of 1974 (5 U.S.C. 552a).
(b) Each VA facility shall adopt in writing procedures related to
the access to and use of records which are subject to Sec. Sec. 1.460
through 1.499 of this part.
(Authority: 38 U.S.C. 7334)
Sec. 1.467 Restrictions on the use of identification cards and
public signs.
(a) No facility may require any patient to carry on their person
while away from the facility premises any card or other object which
would identify the patient as a participant in any VA drug abuse,
alcoholism or alcohol abuse, HIV infection, or sickle cell anemia
treatment program. A facility may require patients to use or carry cards
or other identification objects on the premises of a facility. Patients
may not be required to wear clothing or colored identification bracelets
or display objects openly to all facility staff or others which would
identify them as being treated for drug or alcohol abuse, HIV infection,
or sickle cell anemia.
(b) Treatment locations should not be identified by signs that would
identify individuals entering or exiting these locations as patients
enrolled in a drug or alcohol abuse, HIV infection, or sickle cell
anemia program or activity.
(Authority: 38 U.S.C. 7334)
Sec. 1.468 Relationship to Federal statutes protecting research
subjects against compulsory disclosure of their identity.
(a) Research privilege description. There may be concurrent coverage
of patient identifying information by the provisions of Sec. Sec. 1.460
through 1.499 of this part and by administrative action taken under Sec.
303(a) of the Public Health Service Act (42 U.S.C. 241(d) and the
implementing regulations at 42 CFR Part 2a); or Sec. 502(c) of the
Controlled Substances Act (21 U.S.C. 872(c) and the implementing
regulations at 21 CFR 1316.21). These ``research privilege'' statutes
confer on the Secretary of Health and Human Services and on the Attorney
General, respectively, the power to authorize researchers conducting
certain types of research to withhold from all persons not connected
with the research the names and other identifying information concerning
individuals who are the subjects of the research.
(b) Effect of concurrent coverage. Sections 1.460 through 1.499 of
this part restrict the disclosure and use of information about patients,
while administrative action taken under the research privilege statutes
and implementing regulations protects a person engaged in applicable
research from being compelled to disclose any identifying
characteristics of the individuals who are the subjects of that
research. The issuance under Sec. Sec. 1.490 through 1.499 of this part
of a court order authorizing a disclosure of information about a patient
does not affect an exercise of authority under these research privilege
statutes. However, the research privilege granted under 21 CFR
291.505(g) to treatment programs using methadone for maintenance
treatment does not protect from compulsory disclosure any information
which is permitted to be disclosed under those regulations. Thus, if a
court order entered in accordance with Sec. Sec. 1.490 through 1.499 of
this part authorizes a VA facility to disclose certain information about
its patients, the facility may not invoke the research privilege under
21 CFR 291.505(g) as a defense to a subpoena for that information.
(Authority: 38 U.S.C. 7334)
[[Page 30]]
Sec. 1.469 Patient access and restrictions on use.
(a) Patient access not prohibited. Sections 1.460 through 1.499 of
this part do not prohibit a facility from giving a patient access to his
or her own records, including the opportunity to inspect and copy any
records that VA maintains about the patient, subject to the provisions
of the Privacy Act (5 U.S.C. 552a(d)(1)) and 38 CFR 1.577. If the
patient is accompanied, giving access to the patient and the
accompanying person will require a written consent by the patient which
is provided in accordance with Sec. 1.475 of this part.
(b) Restrictions on use of information. Information obtained by
patient access to patient record is subject to the restriction on use of
this information to initiate or substantiate any criminal charges
against the patient or to conduct any criminal investigation of the
patient as provided for under Sec. 1.461(d)(1) of this part.
(Authority: 38 U.S.C. 7334)
Sec. Sec. 1.470-1.474 [Reserved]
Disclosures With Patient's Consent
Sec. 1.475 Form of written consent.
(a) Required elements. A written consent to a disclosure under
Sec. Sec. 1.460 through 1.499 of this part must include:
(1) The name of the facility permitted to make the disclosure (such
a designation does not preclude the release of records from other VA
health care facilities unless a restriction is stated on the consent).
(2) The name or title of the individual or the name of the
organization to which disclosure is to be made.
(3) The name of the patient.
(4) The purpose of the disclosure.
(5) How much and what kind of information is to be disclosed.
(6) The signature of the patient and, when required for a patient
who is a minor, the signature of a person authorized to give consent
under Sec. 1.464 of this part; or, when required for a patient who is
incompetent or deceased, the signature of a person authorized to sign
under Sec. 1.465 of this part in lieu of the patient.
(7) The date on which the consent is signed.
(8) A statement that the consent is subject to revocation at any
time except to the extent that the facility which is to make the
disclosure has already acted in reliance on it. Acting in reliance
includes the provision of treatment services in reliance on a valid
consent to disclose information to a third party payer.
(9) The date, event, or condition upon which the consent will expire
if not revoked before. This date, event, or condition must ensure that
the consent will last no longer than reasonably necessary to serve the
purpose for which it is given.
(b) Expired, deficient, or false consent. A disclosure may not be
made on the basis of a consent which:
(1) Has expired;
(2) On its face substantially fails to conform to any of the
requirements set forth in paragraph (a) of this section;
(3) Is known to have been revoked; or
(4) Is known, or through a reasonable effort could be known, by
responsible personnel of VA to be materially false.
(c) Notification of deficient consent. Other than the patient, no
person or entity may be advised that a special consent is required in
order to disclose information relating to an individual participating in
a drug abuse, alcoholism or alcohol abuse, HIV, or sickle cell anemia
program or activity. Where a person or entity presents VA with an
insufficient written consent for information protected by 38 U.S.C.
7332, VA must, in the process of obtaining a legally sufficient consent,
correspond only with the patient whose records are involved, or the
legal guardian of an incompetent patient or next of kin of a deceased
patient, and not with any other person.
(d) It is not necessary to use any particular form to establish a
consent referred to in paragraph (a) of this section, however, VA Form
10-5345, titled Request for and Consent to Release of Medical Records
Protected by 38 U.S.C. 7332, may be used for such purpose.
(Authority: 38 U.S.C. 7332(a)(2) and (b)(1))
[[Page 31]]
Sec. 1.476 Prohibition on redisclosure.
Each disclosure under Sec. Sec. 1.460 through 1.499 of this part
made with the patient's written consent must be accompanied by a written
statement similar to the following:
This information has been disclosed to you from records protected by
Federal confidentiality rules (38 CFR Part 1). The Federal rules
prohibit you from making any further disclosure of this information
unless further disclosure is expressly permitted by the written consent
of the person to whom it pertains or as otherwise permitted by 38 CFR
Part 1. A general authorization for the release of medical or other
information is NOT sufficient for this purpose. The Federal rules
restrict any use of the information to criminally investigate or
prosecute any alcohol or drug abuse patient or patient with sickle cell
anemia or HIV infection.
(Authority: 38 U.S.C. 7334)
Sec. 1.477 Disclosures permitted with written consent.
If a patient consents to a disclosure of his or her records under
Sec. 1.475 of this part, a facility may disclose those records in
accordance with that consent to any individual or organization named in
the consent, except that disclosures to central registries and in
connection with criminal justice referrals must meet the requirements of
Sec. Sec. 1.478 and 1.479 of this part, respectively.
(Authority: 38 U.S.C. 7332(b)(1))
Sec. 1.478 Disclosures to prevent multiple enrollments in
detoxification and maintenance treatment programs; not applicable
to records relating to sickle cell
anemia or infection with the human immunodeficiency virus.
(a) Definitions. For purposes of this section:
(1) Central registry means an organization which obtains from two or
more member programs patient identifying information about individuals
applying for maintenance treatment or detoxification treatment for the
purpose of avoiding an individual's concurrent enrollment in more than
one program.
(2) Detoxification treatment means the dispensing of a narcotic drug
in decreasing doses to an individual in order to reduce or eliminate
adverse physiological or psychological effects incident to withdrawal
from the sustained use of a narcotic drug.
(3) Maintenance treatment means the dispensing of a narcotic drug in
the treatment of an individual for dependence upon heroin or other
morphine-like drugs.
(4) Member program means a non-VA detoxification treatment or
maintenance treatment program which reports patient identifying
information to a central registry and which is in the same State as that
central registry or is not more than 125 miles from any border of the
State in which the central registry is located.
(b) Restrictions on disclosure. VA may disclose patient records to a
central registry which is located in the same State or is not more than
125 miles from any border of the State or to any non-VA detoxification
or maintenance treatment program not more than 200 miles away for the
purpose of preventing the multiple enrollment of a patient only if:
(1) The disclosure is made when:
(i) The patient is accepted for treatment;
(ii) The type or dosage of the drug is changed; or
(iii) The treatment is interrupted, resumed or terminated.
(2) The disclosure is limited to:
(i) Patient identifying information;
(ii) Type and dosage of the drug; and
(iii) Relevant dates.
(3) The disclosure is made with the patient's written consent
meeting the requirements of Sec. 1.475 of this part, except that:
(i) The consent must list the name and address of each central
registry and each known non-VA detoxification or maintenance treatment
program to which a disclosure will be made; and
(ii) The consent may authorize a disclosure to any non-VA
detoxification or maintenance treatment program established within 200
miles after the consent is given without naming any such program.
(c) Use of information limited to prevention of multiple
enrollments. A central registry and any non-VA detoxification or
maintenance treatment program to
[[Page 32]]
which information is disclosed to prevent multiple enrollments may not
redisclose or use patient identifying information for any purpose other
than the prevention of multiple enrollments unless authorized by a court
order under Sec. Sec. 1.490 through 1.499 of this part.
(Authority: 38 U.S.C. 7334)
Sec. 1.479 Disclosures to elements of the criminal justice system
which have referred patients.
(a) VA may disclose information about a patient from records covered
by Sec. Sec. 1.460 through 1.499 of this part to those persons within
the criminal justice system which have made participation in a VA
treatment program a condition of the disposition of any criminal
proceedings against the patient or of the patient's parole or other
release from custody if:
(1) The disclosure is made only to those individuals within the
criminal justice system who have a need for the information in
connection with their duty to monitor the patient's progress (e.g., a
prosecuting attorney who is withholding charges against the patient, a
court granting pretrial or posttrial release, probation or parole
officers responsible for supervision of the patient); and
(2) The patient has signed a written consent as a condition of
admission to the treatment program meeting the requirements of Sec.
1.475 of this part (except paragraph (a)(8) which is inconsistent with
the revocation provisions of paragraph (c) of this section) and the
requirements of paragraphs (b) and (c) of this section.
(b) Duration of consent. The written consent must state the period
during which it remains in effect. This period must be reasonable,
taking into account:
(1) The anticipated length of the treatment recognizing that
revocation of consent may not generally be effected while treatment is
ongoing;
(2) The type of criminal proceeding involved, the need for the
information in connection with the final disposition of that proceeding,
and when the final disposition will occur; and
(3) Such other factors as the facility, the patient, and the
person(s) who will receive the disclosure consider pertinent.
(c) Revocation of consent. The written consent must state that it is
revocable upon the passage of a specified amount of time or the
occurrence of a specified, ascertainable event. The time or occurrence
upon which consent becomes revocable may be no earlier than the
individual's completion of the treatment program and no later than the
final disposition of the conditional release or other action in
connection with which consent was given.
(d) Restrictions on redisclosure and use. A person who receives
patient information under this section may redisclose and use it only to
carry out that person's official duties with regard to the patient's
conditional release or other action in connection with which the consent
was given, including parole.
(Authority: 38 U.S.C. 7334)
Sec. Sec. 1.480-1.483 [Reserved]
Disclosures Without Patient Consent
Sec. 1.484 Disclosure of medical information to the surrogate of a
patient who lacks decision-making capacity.
A VA medical practitioner may disclose the content of any record of
the identity, diagnosis, prognosis, or treatment of a patient that is
maintained in connection with the performance of any VA program or
activity relating to drug abuse, alcoholism or alcohol abuse, infection
with the human immunodeficiency virus, or sickle cell anemia to a
surrogate of the patient who is the subject of such record if:
(a) The patient lacks decision-making capacity; and
(b) The practitioner deems the content of the given record necessary
for the surrogate to make an informed decision regarding the patient's
treatment.
(Authority: 38 U.S.C. 7331, 7332)
[76 FR 6696, Feb. 8, 2011]
Sec. 1.485 Medical emergencies.
(a) General rule. Under the procedures required by paragraph (c) of
this section, patient identifying information from records covered by
Sec. Sec. 1.460 through
[[Page 33]]
1.499 of this part may be disclosed to medical personnel who have a need
for information about a patient for the purpose of treating a condition
which poses an immediate threat to the health of any individual and
which requires immediate medical intervention.
(b) Special rule. Patient identifying information may be disclosed
to medical personnel of the Food and Drug Administration (FDA) who
assert a reason to believe that the health of any individual may be
threatened by an error in the manufacture, labeling, or sale of a
product under FDA jurisdiction, and that the information will be used
for the exclusive purpose of notifying patients or their physicians of
potential dangers.
(c) Procedures. Immediately following disclosure, any VA employee
making an oral disclosure under authority of this section shall make an
accounting of the disclosure in accordance with the Privacy Act (5
U.S.C. 552a(c) and 38 CFR 1.576(c)) and document the disclosure in the
patient's records setting forth in writing:
(1) The name and address of the medical personnel to whom disclosure
was made and their affiliation with any health care facility;
(2) The name of the individual making the disclosure;
(3) The date and time of the disclosure;
(4) The nature of the emergency (or error, if the report was to
FDA);
(5) The information disclosed; and
(6) The authority for making the disclosure (Sec. 1.485 of this
part).
(Authority: 38 U.S.C. 7332(b)(2)(A))
Sec. 1.485a Eye, organ and tissue donation.
A VHA health care facility may disclose the individually-identified
medical record information of an individual covered by Sec. Sec. 1.460
through 1.499 of this part to an authorized representative of a
procurement organization for the purpose of facilitating determination
of whether the individual is a suitable potential organ, eye, or tissue
donor if:
(a) The individual is currently an inpatient in a VHA health care
facility;
(b) The individual is, in the clinical judgment of the individual's
primary health care provider, near death or deceased;
(c) The VHA health care facility has a signed agreement with the
procurement organization in accordance with the applicable requirements
of the United States Department of Health and Human Services (HHS); and
(d) The VHA health care facility has confirmed with HHS that it has
certified or recertified the organ procurement organization as provided
in the applicable HHS regulations. VA medical centers must verify
annually in January of each calendar year with the Food and Drug
Administration (FDA) that an eye bank or tissue bank has complied with
the FDA registration requirements of 21 CFR part 1271 and that the
registration status is active before permitting an eye bank or tissue
bank to receive protected health information.
(Authority: 38 U.S.C. 5701(k), 7332(b)(2)(E))
[72 FR 48242, Aug. 23, 2007, as amended at 73 FR 65260, Nov. 3, 2008]
Sec. 1.486 Disclosure of information related to infection with the
human immunodeficiency virus to public health authorities.
(a) In the case of any record which is maintained in connection with
the performance of any program or activity relating to infection with
the HIV, information may be disclosed to a Federal, State, or local
public health authority, charged under Federal or State law with the
protection of the public health, and to which Federal or State law
requires disclosure of such record, if a qualified representative of
such authority has made a written request that such record be provided
as required pursuant to such law for a purpose authorized by such law.
In the case of a State law, such law must, in order for VA to be able to
release patient name and address information in accordance with 38
U.S.C. 5701(f)(2), provide for a penalty or fine or other sanction to be
assessed against those individuals who are subject to the jurisdiction
of the public health authority but fail to comply with the reporting
requirements.
[[Page 34]]
(b) A person to whom a record is disclosed under this section may
not redisclose or use such record for a purpose other than that for
which the disclosure was made.
(Authority: 38 U.S.C. 7332(b)(2)(C))
Sec. 1.487 Disclosure of information related to infection with the
human immunodeficiency virus to the spouse or sexual partner
of the patient.
(a) Subject to paragraph (b) of this section, a physician or a
professional counselor may disclose information or records indicating
that a patient is infected with the HIV if the disclosure is made to the
spouse of the patient, or to an individual whom the patient has, during
the process of professional counseling or of testing to determine
whether the patient is infected with such virus, identified as being a
sexual partner of such patient.
(b) A disclosure under this section may be made only if the
physician or counselor, after making reasonable efforts to counsel and
encourage the patient to provide the information to the spouse or sexual
partner, reasonably believes that the patient will not provide the
information to the spouse or sexual partner and that the disclosure is
necessary to protect the health of the spouse or sexual partner.
(c) A disclosure under this section may be made by a physician or
counselor other than the physician or counselor referred to in paragraph
(b) of this section if such physician or counselor is unavailable by
reason of extended absence or termination of employment to make the
disclosure.
(Authority: 38 U.S.C. 7332(b))
Sec. 1.488 Research activities.
Subject to the provisions of 38 U.S.C. 5701, 38 CFR 1.500-1.527, the
Privacy Act (5 U.S.C. 552a), 38 CFR 1.575-1.584 and the following
paragraphs, patient medical record information covered by Sec. Sec.
1.460 through 1.499 of this part may be disclosed for the purpose of
conducting scientific research.
(a) Information in individually identifiable form may be disclosed
from records covered by Sec. Sec. 1.460 through 1.499 of this part for
the purpose of conducting scientific research if the Under Secretary for
Health or designee makes a determination that the recipient of the
patient identifying information:
(1) Is qualified to conduct the research.
(2) Has a research protocol under which the information:
(i) Will be maintained in accordance with the security requirements
of Sec. 1.466 of this part (or more stringent requirements); and
(ii) Will not be redisclosed except as permitted under paragraph (b)
of this section.
(3) Has furnished a written statement that the research protocol has
been reviewed by an independent group of three or more individuals who
found that the rights of patients would be adequately protected and that
the potential benefits of the research outweigh any potential risks to
patient confidentiality posed by the disclosure of records.
(b) A person conducting research may disclose information obtained
under paragraph (a) of this section only back to VA and may not identify
any individual patient in any report of that research or otherwise
disclose patient identities.
(Authority: 38 U.S.C. 7332(b)(2)(B))
Sec. 1.489 Audit and evaluation activities.
Subject to the provisions of 38 U.S.C. 5701, 38 CFR 1.500-1.527, the
Privacy Act (5 U.S.C. 552a), 38 CFR 1.575-1.584, and the following
paragraphs, patient medical records covered by Sec. Sec. 1.460 through
1.499 of this part may be disclosed outside VA for the purposes of
conducting audit and evaluation activities.
(a) Records not copies. If patient records covered by Sec. Sec.
1.460 through 1.499 of this part are not copied, patient identifying
information may be disclosed in the course of a review of records on VA
facility premises to any person who agrees in writing to comply with the
limitations on redisclosure and use in paragraph (d) of this section
and:
(1) Where audit or evaluation functions are performed by a State or
Federal governmental agency on behalf of VA; or
(2) Who is determined by the VA facility director to be qualified to
conduct the audit or evaluation activities.
[[Page 35]]
(b) Copying of records. Records containing patient identifying
information may be copied by any person who:
(1) Agrees in writing to:
(i) Maintain the patient identifying information in accordance with
the security requirements provided in Sec. 1.466 of this part (or more
stringent requirements);
(ii) Destroy all the patient identifying information upon completion
of the audit or evaluation; and
(iii) Comply with the limitations on disclosure and use in paragraph
(d) of this section.
(2) The VA medical facility director determines to be qualified to
conduct the audit or evaluation activities.
(c) Congressional oversight. Records subject to Sec. Sec. 1.460
through 1.499 of this part upon written request may be released to
congressional committees or subcommittees for program oversight and
evaluation if such records pertain to any matter within the jurisdiction
of such committee or subcommittee.
(d) Limitation on disclosure and use. Records containing patient
identifying information disclosed under this section may be disclosed
only back to VA and used only to carry out an audit or evaluation
purpose, or, to investigate or prosecute criminal or other activities as
authorized by a court order entered under Sec. 1.494 of this part.
(Authority: 38 U.S.C. 7332(b)(2)(B))
Court Orders Authorizing Disclosures and Use
Sec. 1.490 Legal effect of order.
The records to which Sec. Sec. 1.460 through 1.499 of this part
apply may be disclosed if authorized by an appropriate order of a court
of competent jurisdiction granted after application showing good cause
therefore. In assessing good cause the court is statutorily required to
weigh the public interest and the need for disclosure against the injury
to the patient or subject, to the physician-patient relationship, and to
the treatment services. Upon the granting of such order, the court, in
determining the extent to which any disclosure of all or any part of any
record is necessary, is required by statute to impose appropriate
safeguards against unauthorized disclosure. An order of a court of
competent jurisdiction to produce records subject to Sec. Sec. 1.460
through 1.499 of this part will not be sufficient unless the order
reflects that the court has complied with the requirements of 38 U.S.C.
7332(b)(2)(D). Such an order from a Federal court compels disclosure.
However, such an order from a State court only acts to authorize the
Secretary to exercise discretion pursuant to 38 U.S.C. 5701(b)(5) and 38
CFR 1.511 to disclose such records. It does not compel disclosure.
(Authority: 38 U.S.C. 7332(b)(2)(D))
Sec. 1.491 Confidential communications.
(a) A court order under Sec. Sec. 1.490 through 1.499 of this part
may authorize disclosure of confidential communications made by a
patient to a treatment program in the course of diagnosis, treatment, or
referral for treatment only if:
(1) The disclosure is necessary to protect against an existing
threat to life or of serious bodily injury, including circumstances
which constitute suspected child abuse and neglect and verbal threats
against third parties;
(2) The disclosure is necessary in connection with investigation or
prosecution of an extremely serious crime, such as one which directly
threatens loss of life or serious bodily injury, including homicide,
rape, kidnapping, armed robbery, assault with a deadly weapon, or child
abuse and neglect; or
(3) The disclosure is in connection with litigation or an
administrative proceeding in which the patient offers testimony or other
evidence pertaining to the content of the confidential communications.
(b) [Reserved]
(Authority: 38 U.S.C. 7334)
Sec. 1.492 Order not applicable to records disclosed without consent
to researchers, auditors and evaluators.
A court order under Sec. Sec. 1.460 through 1.499 of this part may
not authorize qualified personnel, who have received patient identifying
information from VA without consent for the purpose of conducting
research, audit or evaluation, to disclose that information or use it to
conduct any criminal investigation or prosecution of a patient.
[[Page 36]]
However, a court order under Sec. 1.495 of this part may authorize
disclosure and use of records to investigate or prosecute VA personnel.
(Authority: 38 U.S.C. 7334)
Sec. 1.493 Procedures and criteria for orders authorizing disclosures
for noncriminal purposes.
(a) Application. An order authorizing the disclosure of patient
records covered by Sec. Sec. 1.460 through 1.499 of this part for
purposes other than criminal investigation or prosecution may be applied
for by any person having a legally recognized interest in the disclosure
which is sought. The application may be filed separately or as part of a
pending civil action in which it appears that the patient records are
needed to provide evidence. An application must use a fictitious name,
such as John Doe, to refer to any patient and may not contain or
otherwise disclose any patient identifying information unless the
patient is the applicant or has given a written consent (meeting the
requirements of Sec. 1.475 of this part) to disclosure or the court has
ordered the record of the proceeding sealed from public scrutiny.
(b) Notice. The patient and VA facility from whom disclosure is
sought must be given:
(1) Adequate notice in a manner which will not disclose patient
identifying information to other persons; and
(2) An opportunity to file a written response to the application, or
to appear in person, for the limited purpose of providing evidence on
whether the statutory and regulatory criteria for the issuance of the
court order are met.
(c) Review of evidence: Conduct of hearing. Any oral argument,
review of evidence, or hearing on the application must be held in the
judge's chambers or in some manner which ensures that patient
identifying information is not disclosed to anyone other than a party to
the proceeding, the patient, or VA, unless the patient requests an open
hearing in a manner which meets the written consent requirements of
Sec. 1.475 of this part. The proceeding may include an examination by
the judge of the patient records referred to in the application.
(d) Criteria for entry of order. An order under this section may be
entered only if the court determines that good cause exists. To make
this determination the court must find that:
(1) Other ways of obtaining the information are not available or
would not be effective; and
(2) The public interest and need for the disclosure outweigh the
potential injury to the patient, the physician-patient relationship and
the treatment services.
(e) Content of order. An order authorizing a disclosure must:
(1) Limit disclosure to those parts of the patient's record which
are essential to fulfill the objective of the order;
(2) Limit disclosure to those persons whose need for information is
the basis for the order; and
(3) Include such other measures as are necessary to limit disclosure
for the protection of the patient, the physician-patient relationship
and the treatment services; for example, sealing from public scrutiny
the record of any proceeding for which disclosure of a patient's record
has been ordered.
(Authority: 38 U.S.C. 7334)
Sec. 1.494 Procedures and criteria for orders authorizing disclosure
and use of records to criminally investigate or prosecute patients.
(a) Application. An order authorizing the disclosure or use of
patient records covered by Sec. Sec. 1.460 through 1.499 of this part
to criminally investigate or prosecute a patient may be applied for by
VA or by any person conducting investigative or prosecutorial activities
with respect to the enforcement of criminal laws. The application may be
filed separately, as part of an application for a subpoena or other
compulsory process, or in a pending criminal action. An application must
use a fictitious name such as John Doe, to refer to any patient and may
not contain or otherwise disclose patient identifying information unless
the court has ordered the record of the proceeding sealed from public
scrutiny.
(b) Notice and hearing. Unless an order under Sec. 1.495 of this
part is sought with an order under this section, VA must be given:
[[Page 37]]
(1) Adequate notice (in a manner which will not disclose patient
identifying information to third parties) of an application by a person
performing a law enforcement function;
(2) An opportunity to appear and be heard for the limited purpose of
providing evidence on the statutory and regulatory criteria for the
issuance of the court order; and
(3) An opportunity to be represented by counsel.
(c) Review of evidence: Conduct of hearings. Any oral argument,
review of evidence, or hearing on the application shall be held in the
judge's chambers or in some other manner which ensures that patient
identifying information is not disclosed to anyone other than a party to
the proceedings, the patient, or VA. The proceeding may include an
examination by the judge of the patient records referred to in the
application.
(d) Criteria. A court may authorize the disclosure and use of
patient records for the purpose of conducting a criminal investigation
or prosecution of a patient only if the court finds that all of the
following criteria are met:
(1) The crime involved is extremely serious, such as one which
causes or directly threatens loss of life or serious bodily injury
including, but not limited to, homicide, rape, kidnapping, armed
robbery, assault with a deadly weapon, and child abuse and neglect.
(2) There is a reasonable likelihood that the records will disclose
information of substantial value in the investigation or prosecution.
(3) Other ways of obtaining the information are not available or
would not be effective.
(4) The potential injury to the patient, to the physician-patient
relationship and to the ability of VA to provide services to other
patients is outweighed by the public interest and the need for the
disclosure.
(5) If the applicant is a person performing a law enforcement
function, VA has been represented by counsel independent of the
applicant.
(e) Content of order. Any order authorizing a disclosure or use of
patient records under this section must:
(1) Limit disclosure and use to those parts of the patient's record
which are essential to fulfill the objective of the order;
(2) Limit disclosure to those law enforcement and prosecutorial
officials who are responsible for, or are conducting, the investigation
or prosecution, and limit their use of the records to investigation and
prosecution of extremely serious crime or suspected crime specified in
the applications; and
(3) Include such other measures as are necessary to limit disclosure
and use to the fulfillment on only that public interest and need found
by the court.
(Authority: 38 U.S.C. 7332(c))
Sec. 1.495 Procedures and criteria for orders authorizing disclosure
and use of records to investigate or prosecute VA or employees of VA.
(a) Application. (1) An order authorizing the disclosure or use of
patient records covered by Sec. Sec. 1.460 through 1.499 of this part
to criminally or administratively investigate or prosecute VA (or
employees or agents of VA) may be applied for by an administrative,
regulatory, supervisory, investigative, law enforcement, or
prosecutorial agency having jurisdiction over VA activities.
(2) The application may be filed separately or as part of a pending
civil or criminal action against VA (or agents or employees of VA) in
which it appears that the patient records are needed to provide material
evidence. The application must use a fictitious name, such as John Doe,
to refer to any patient and may not contain or otherwise disclose any
patient identifying information unless the court has ordered the record
of the proceeding sealed from public scrutiny or the patient has given a
written consent (meeting the requirements of Sec. 1.475 of this part)
to that disclosure.
(b) Notice not required. An application under this section may, in
the discretion of the court, be granted without notice. Although no
express notice is required to VA or to any patient whose records are to
be disclosed, upon implementation of an order so granted VA or the
patient must be afforded an opportunity to seek revocation or amendment
of that order, limited to the presentation of evidence on the statutory
[[Page 38]]
and regulatory criteria for the issuance of the court order.
(c) Requirements for order. An order under this section must be
entered in accordance with, and comply with the requirements of, Sec.
1.493(d) and (e) of this part.
(d) Limitations on disclosure and use of patient identifying
information. (1) An order entered under this section must require the
deletion of patient identifying information from any documents made
available to the public.
(2) No information obtained under this section may be used to
conduct any investigation or prosecution of a patient, or be used as the
basis for an application for an order under Sec. 1.494 of this part.
(Authority: 38 U.S.C. 7334)
Sec. 1.496 Orders authorizing the use of undercover agents and
informants to criminally investigate employees or agents of VA.
(a) Application. A court order authorizing the placement of an
undercover agent or informant in a VA drug or alcohol abuse, HIV
infection, or sickle cell anemia treatment program as an employee or
patient may be applied for by any law enforcement or prosecutorial
agency which has reason to believe that employees or agents of the VA
treatment program are engaged in criminal misconduct.
(b) Notice. The VA facility director must be given adequate notice
of the application and an opportunity to appear and be heard (for the
limited purpose of providing evidence on the statutory and regulatory
criteria for the issuance of the court order), unless the application
asserts a belief that:
(1) The VA facility director is involved in the criminal activities
to be investigated by the undercover agent or informant; or
(2) The VA facility director will intentionally or unintentionally
disclose the proposed placement of an undercover agent or informant to
the employees or agents who are suspected of criminal activities.
(c) Criteria. An order under this section may be entered only if the
court determines that good cause exists. To make this determination the
court must find:
(1) There is reason to believe that an employee or agent of a VA
treatment program is engaged in criminal activity;
(2) Other ways of obtaining evidence of this criminal activity are
not available or would not be effective; and
(3) The public interest and need for the placement of an undercover
agent or informant in the VA treatment program outweigh the potential
injury to patients of the program, physician-patient relationships and
the treatment services.
(d) Content of order. An order authorizing the placement of an
undercover agent or informant in a VA treatment program must:
(1) Specifically authorize the placement of an undercover agent or
an informant;
(2) Limit the total period of the placement to six months;
(3) Prohibit the undercover agent or informant from disclosing any
patient identifying information obtained from the placement except as
necessary to criminally investigate or prosecute employees or agents of
the VA treatment program; and
(4) Include any other measures which are appropriate to limit any
potential disruption of the program by the placement and any potential
for a real or apparent breach of patient confidentiality; for example,
sealing from public scrutiny the record of any proceeding for which
disclosure of a patient's record has been ordered.
(e) Limitation on use of information. No information obtained by an
undercover agent or informant placed under this section may be used to
criminally investigate or prosecute any patient or as the basis for an
application for an order under Sec. 1.494 of this part.
(Authority: 38 U.S.C. 7334)
Sec. Sec. 1.497-1.499 [Reserved]
Release of Information From Department of Veterans Affairs Claimant
Records
Note: Sections 1.500 through 1.527 concern the availability and
release of information from files, records, reports, and other papers
and documents in Department of Veterans Affairs custody pertaining to
claims under
[[Page 39]]
any of the laws administered by the Department of Veterans Affairs. As
to the release of information from Department of Veterans Affairs
records other than claimant records, see Sec. Sec. 1.550 through 1.558.
Sections 1.500 through 1.526 implement the provisions of 38 U.S.C. 5701,
5702.
[32 FR 10848, July 25, 1967]
Authority: Sections 1.500 to 1.527 issued under 72 Stat. 1114, 1236,
as amended; 38 U.S.C. 501, 5701.
Sec. 1.500 General.
(a) Files, records, reports, and other papers and documents
pertaining to any claim filed with the Department of Veterans Affairs,
whether pending or adjudicated, and the names and addresses of present
or former personnel of the armed services, and their dependents, in the
possession of the Department of Veterans Affairs, will be deemed
confidential and privileged, and no disclosure therefrom will be made
except in the circumstances and under the conditions set forth in
Sec. Sec. 1.501 through 1.526.
(b) A claimant may not have access to or custody of official
Department of Veterans Affairs records concerning himself or herself nor
may a claimant inspect records concerning himself or herself. Disclosure
of information from Department of Veterans Affairs records to a claimant
or his or her duly authorized agent or representative may be made,
however, under the provisions of Sec. Sec. 1.501 through 1.526.
(c) Each administration, staff office, and field facility head will
designate an employee(s) who will be responsible for initial action on
(granting or denying) requests to inspect or obtain information from or
copies of records under their jurisdiction and within the purview of
Sec. Sec. 1.501 through 1.526 unless the regulations in this part
currently contain such designations. The request should be made to the
office concerned (having jurisdiction of the record desired) or, if not
known, to the Director or Veterans Assistance Officer in the nearest VA
regional office, or to the VA Central Office, 810 Vermont Avenue NW.,
Washington, DC 20420. Personal contacts should normally be made during
the regular duty hours of the office concerned, which are 8 a.m. to 4:30
p.m., Monday through Friday, for VA Central Office and most field
facilities. Any legal question arising in a field facility concerning
the release of information will be referred to the appropriate Regional
Counsel for disposition as contemplated by Sec. 13.401 of this chapter.
In central office such legal questions will be referred to the General
Counsel. Any administrative question will be referred through
administrative channels to the appropriate administration or staff
office head.
(d) Upon denial of a request under paragraph (c) of this section,
the responsible Department of Veterans Affairs official or designated
employee will inform the requester in writing of the denial and advise
him or her that he or she may appeal the denial. The requester will also
be furnished the title and address of the Department of Veterans Affairs
official to whom the appeal should be addressed. (See Sec. 1.527.) In
each instance of denial of a request, the denial will be made a matter
of record and the record will contain a citation to the specific
provision of Department of Veterans Affairs regulations upon which the
denial is based.
[24 FR 8174, Oct. 8, 1959, as amended at 32 FR 10848, July 25, 1967; 38
FR 15601, June 14, 1973]
Sec. 1.501 Release of information by the Secretary.
The Secretary of Veterans Affairs or the Deputy Secretary may
release information, statistics, or reports to individuals or
organizations when in the Secretary's or Deputy Secretary's judgment
such release would serve a useful purpose.
[32 FR 10848, July 25, 1967, as amended at 54 FR 34980, Aug. 23, 1989]
Sec. 1.502 Disclosure of the amount of monetary benefits.
The monthly rate of pension, compensation, dependency and indemnity
compensation, retirement pay, subsistence allowance, or educational
assistance allowance of any beneficiary shall be made known to any
person who applies for such information.
[32 FR 10848, July 25, 1967]
[[Page 40]]
Sec. 1.503 Disclosure of information to a veteran or his or her duly
authorized representative as to matters concerning the veteran alone.
Information may be disclosed to a veteran or his or her duly
authorized representative as to matters concerning himself or herself
alone when such disclosure would not be injurious to the physical or
mental health of the veteran. If the veteran be deceased, matters
concerning him or her may be disclosed to his widow, children, or next
of kin if such disclosure will not be injurious to the physical or
mental health of the person in whose behalf information is sought or
cause repugnance or resentment toward the decedent.
[13 FR 6999, Nov. 27, 1948]
Sec. 1.504 Disclosure of information to a widow, child, or other claimant.
Information may be disclosed to a widow, widower, child, or other
dependent parent or other claimant, or the duly authorized
representative of any of these persons as to matters concerning such
person alone when such disclosure will not be injurious to the physical
or mental health of the person to whom the inquiry relates. If the
person concerning whom the information is sought is deceased, matters
concerning such person may be disclosed to the next of kin if the
disclosures will not be injurious to the physical or mental health of
the person in whose behalf the information is sought or cause repugnance
or resentment toward the decedent.
[13 FR 6999, Nov. 27, 1948, as amended at 54 FR 34980, Aug. 23, 1989]
Sec. 1.505 Genealogy.
Information of a genealogical nature when its disclosure will not be
detrimental to the memory of the veteran and not prejudicial, so far as
may be apparent, to the interests of any living person or to the
interests of the Government may be released by the Department of
Veterans Affairs or in the case of inactive records may be released by
the Archivist of the United States if in the Archivist's custody.
[13 FR 6999, Nov. 27, 1948]
Sec. 1.506 Disclosure of records to Federal Government departments,
State unemployment compensation agencies, and the Office of
Servicemembers' Group Life
Insurance.
(a) All records or documents required for official purposes by any
department or other agency of the U.S. Government or any state
unemployment compensation agency acting in an official capacity for the
Department of Veterans Affairs shall be furnished in response to an
official request, written, or oral, from such department or agency. If
the requesting department or agency does not indicate the purpose for
which the records or documents are requested and there is doubt as to
whether they are to be used for official purposes, the requesting
department or agency will be asked to specify the purpose for which they
are to be used.
(b) The Under Secretary for Benefits, Director of Insurance Service,
or designee of either in Central Office, is authorized to release
information to OSGLI (Office of Servicemembers' Group Life Insurance)
for the purpose of aiding in the settlement of a particular insurance
case.
[33 FR 2994, Feb. 15, 1968]
Sec. 1.507 Disclosures to members of Congress.
Members of Congress shall be furnished in their official capacity in
any case such information contained in the Department of Veterans
Affairs files as may be requested for official use. However, in any
unusual case, the request will be presented to the Secretary, Deputy
Secretary, or staff or administration head for personal action. When the
requested information is of a type which may not be furnished a
claimant, the member of Congress shall be advised that the information
is furnished to him or her confidentially in his official capacity and
should be so treated by him or her. (See 38 U.S.C. 5701.) Information
concerning the beneficiary designation of a United States Government
Life Insurance or National Service Life Insurance policy is deemed
confidential and privileged and during
[[Page 41]]
the insured's lifetime shall not be disclosed to anyone other than the
insured or his or her duly appointed fiduciary unless the insured or the
fiduciary authorizes the release of such information.
[32 FR 10848, July 25, 1967]
Sec. 1.508 Disclosure in cases where claimants are charged with or
convicted of criminal offenses.
(a) Where incompetent claimants are charged with, or convicted of,
offenses other than those growing out of their relationship with the
Department of Veterans Affairs and in which it is desired to disclose
information from the files and records of the Department of Veterans
Affairs, the Regional Counsel, Under Secretary for Benefits, Veterans
Benefits Administration, or the General Counsel if the General Counsel
deems it necessary and proper, may disclose to the court having
jurisdiction so much of the information from the files and records of
the Department of Veterans Affairs relating to the mental condition of
such beneficiaries, the same to be available as evidence, as may be
necessary to show the mental condition of the accused and the time of
its onset. This provision, however, does not alter the general procedure
for handling offenses growing out of relations with the Department of
Veterans Affairs.
(b) When desired by a U.S. district court, the Regional Counsel or
the General Counsel may supply information as to whether any person
charged with crime served in the military or naval service of the United
States and whether the Department of Veterans Affairs has a file on such
person. If the file is desired either by the court or by the prosecution
or defense, it may be produced only in accord with Sec. Sec. 1.501
through 1.526.
[21 FR 10375, Dec. 28, 1956, as amended at 32 FR 10848, July 25, 1967;
54 FR 34980, Aug. 23, 1989]
Sec. 1.509 Disclosure to courts in proceedings in the nature of an inquest.
The Under Secretary for Benefits, Veterans Benefits Administration,
Regional Counsels, and facility heads are authorized to make disclosures
to courts of competent jurisdiction of such files, records, reports, and
other documents as are necessary and proper evidence in proceedings in
the nature of an inquest into the mental competency of claimants and
other proceedings incident to the appointment and discharge of
guardians, curators, or conservators to any court having jurisdiction of
such fiduciaries in all matters of appointment, discharge, or accounting
in such courts.
[32 FR 10848, July 25, 1967]
Sec. 1.510 Disclosure to insurance companies cooperating with the
Department of Justice in the defense of insurance suits against
the United States.
Copies of records from the files of the Department of Veterans
Affairs will, in the event of litigation involving commercial insurance
policies issued by an insurance company cooperating with the Department
of Justice in defense of insurance suits against the United States, be
furnished to such companies without charge, provided the claimant or his
or her duly authorized representative has authorized the release of the
information contained in such records. If the release of information is
not authorized in writing by the claimant or his or her duly authorized
representative, information contained in the files may be furnished to
such company if to withhold same would tend to permit the accomplishment
of a fraud or miscarriage of justice. However, before such information
may be released without the consent of the claimant, the request
therefor must be accompanied by an affidavit of the representative of
the insurance company, setting forth that litigation is pending, the
character of the suit, and the purpose for which the information desired
is to be used. If such information is to be used adversely to the
claimant, the affidavit must set forth facts from which it may be
determined by the General Counsel or Regional Counsel whether the
furnishing of the information is necessary to prevent the perpetration
of a fraud or other injustice. The averments contained in such affidavit
should be considered in connection with the facts shown by the
claimant's file, and, if
[[Page 42]]
such consideration shows the disclosure of the record is necessary and
proper to prevent a fraud or other injustice, information as to the
contents thereof may be furnished to the insurance company or copies of
the records may be furnished to the court, workmen's compensation, or
similar board in which the litigation is pending upon receipt of a
subpoena duces tecum addressed to the Secretary of Veterans Affairs, or
the head of the office in which the records desired are located. In the
event the subpoena requires the production of the file, as distinguished
from the copies of the records, no expense to the Department of Veterans
Affairs may be involved in complying therewith, and arrangements must be
made with the representative of the insurance company causing the
issuance of the subpoena to insure submission of the file to the court
without expense to the Department of Veterans Affairs.
[32 FR 10848, July 25, 1967]
Sec. 1.511 Disclosure of claimant records in connection with judicial
proceedings generally.
(a)(1) Where a suit (or legal proceeding) has been threatened or
instituted against the Government, or a prosecution against a claimant
has been instituted or is being contemplated, the request of the
claimant or his or her duly authorized representative for information,
documents, reports, etc., shall be acted upon by the General Counsel in
Central Office, or the Regional Counsel for the field facility, who
shall determine the action to be taken with respect thereto. Where the
records have been sent to the Department of Justice in connection with
any such suit (or legal proceeding), the request will be referred to the
Department of Justice, Washington, DC, through the office of the General
Counsel, for attention. Where the records have been sent to an Assistant
U.S. Attorney, the request will be referred by the appropriate Regional
Counsel to the Assistant U.S. Attorney. In all other cases where copies
of documents or records are desired by or on behalf of parties to a suit
(or legal proceeding), whether in a Federal court or any other, such
copies shall be disclosed as provided in paragraphs (b) and (c) of this
section where the request is accompanied by court process, or paragraph
(e) of this section where the request is not accompanied by court
process. A court process, such as a court order or subpoena duces tecum
should be addressed to either the Secretary of Veterans Affairs or to
the head of the field facility at which the records desired are located.
The determination as to the action to be taken upon any request for the
disclosure of claimant records received in this class of cases shall be
made by the component having jurisdiction over the subject matter in
Central Office, or the division having jurisdiction over the subject
matter in the field facility, except in those cases in which
representatives of the component or division have determined that the
records desired are to be used adversely to the claimant, in which event
the process will be referred to the General Counsel in Central Office or
to the Regional Counsel for the field facility for disposition.
(2) Where a claim under the provisions of the Federal Tort Claims
Act has been filed, or where such a claim can reasonably be anticipated,
no information, documents, reports, etc., will be disclosed except
through the Regional Counsel having jurisdiction, who will limit the
disclosure of information to that which would be available under
discovery proceedings, if the matter were in litigation. Any other
information may be disclosed only after concurrence in such disclosure
is provided by the General Counsel.
(b) Disclosures in response to Federal court process--(1) Court
order. Except for drug and alcohol abuse, human immunodeficiency virus
and sickle cell anemia treatment records, which are protected under 38
U.S.C. 7332, where the records sought are maintained in a VA Privacy Act
system of records, and are retrieved by the name or other personal
identifier of a living claimant who is a citizen of the United States or
an alien lawfully admitted for permanent residence, a Federal court
order is the process necessary for the disclosure of such records. Upon
receipt of a Federal court order directing disclosure of claimant
records, such records will be disclosed. Disclosure of records protected
under 38 U.S.C. 7332 will be made
[[Page 43]]
in accordance with provisions of paragraph (g) of this section.
(2) Subpoena. Except for drug and alcohol abuse, human
immunodeficiency virus and sickle cell anemia treatment records, which
are protected under 38 U.S.C. 7332, where the records sought are
maintained in a VA Privacy Act system of records, and are retrieved by
the name or other personal identifier of a claimant, a subpoena is not
sufficient authority for the disclosure of such records and such records
will not be disclosed, unless the claimant is deceased, or either is not
a citizen of the United States, or is an alien not lawfully admitted for
permanent residence. Where one of these exceptions applies, upon receipt
of a Federal court subpoena, such records will be disclosed.
Additionally, where the subpoena is accompanied by authorization from
the claimant, disclosure will be made. Regarding the disclosure of
medical records pertaining to drug and alcohol abuse, human
immunodeficiency virus and sickle cell anemia treatment, a subpoena is
insufficient for such disclosure. Specific provisions for the disclosure
of these records are set forth in paragraph (g) of this section.
(3) A disclosure of records in response to the receipt of a Federal
court process will be made to those individuals designated in the
process to receive such records, or to the court from which the process
issued. Where original records are produced, they must remain at all
times in the custody of a representative of the Department of Veterans
Affairs, and, if offered and received in evidence, permission should be
obtained to substitute a copy so that the original may remain intact in
the record. Where a court process is issued by or on behalf of a party
litigant other than the United States, such party litigant must prepay
the costs of copies in accordance with fees prescribed by Sec. 1.526(i)
and any other costs incident to producing the records.
(c) Disclosures in response to state or local court processs--(1)
State or local court order. Except for drug and alcohol abuse, human
immunodeficiency virus and sickle cell anemia treatment records, which
are protected under 38 U.S.C. 7332, where the records sought are
maintained in a VA Privacy Act system of records, and are retrieved by
the name or other personal identifier of a living claimant who is a
citizen of the United States or an alien lawfully admitted for permanent
residence, a State or local court order is the process necessary for
disclosure of such records. Upon receipt of a State or local court order
directing disclosure of claimant records, disclosure of such records
will be made in accordance with the provisions set forth in paragraph
(c)(3) of this section. Disclosure of records protected under 38 U.S.C.
7332 will be made in accordance with provisions of paragraph (g) of this
section.
(2) State or local court subpoena. Except for drug and alcohol
abuse, human immunodeficiency virus and sickle cell anemia treatment
records, which are protected under 38 U.S.C. 7332, where the records
sought are maintained in a VA Privacy Act system of records, and are
retrieved by the name or other personal identifier of a claimant, a
subpoena is not sufficient authority for disclosure of such records and
such records will not be disclosed unless the claimant is deceased, or,
either is not a citizen of the United States, or is an alien not
lawfully admitted for permanent residence. Where one of these exceptions
applies, upon receipt of a State or local court subpoena directing
disclosure of claimant records, disclosure of such records will be made
in accordance with the provisions set forth in paragraph (c)(3), of this
section. Regarding the disclosure of 7332 records, a subpoena is
insufficient for such disclosure. Specific provisions for the disclosure
of these records are set forth in paragraph (g) of this section.
(3) Where the disclosure provisions of paragraph (c) (1) or (2) of
this section apply, disclosure will be made as follows:
(i) When the process presented is accompanied by authority from the
claimant; or,
(ii) In the absence of claimant disclosure authority, the Regional
Counsel having jurisdiction must determine whether the disclosure of the
records is necessary to prevent the perpetration of fraud or other
injustice in the matter in question. To make such a determination, the
Regional Counsel may
[[Page 44]]
require such additional documentation, e.g., affidavit, letter of
explanation, or such other documentation which would detail the need for
such disclosure, set forth the character of the pending suit, and the
purpose for which the documents or records sought are to be used as
evidence. The claimant's record may also be considered in the making of
such determination. Where a court process is received, and the Regional
Counsel finds that additional documentation will be needed to make the
foregoing determination, the Regional Counsel, or other employee having
reasonable knowledge of the requirements of this regulation, shall
contact the person causing the issuance of such court process, and
advise that person of the need for additional documentation. Where a
court appearance is appropriate, and the Regional Counsel has found that
there is an insufficient basis upon which to warrant a disclosure of the
requested information, the Regional Counsel, or other employee having
reasonable knowledge of the requirement of this regulation and having
consulted with the Regional Counsel, shall appear in court and advise
the court that VA records are confidential and privileged and may be
disclosed only in accordance with applicable Federal regulations, and to
further advise the court of such regulatory requirements and how they
have not been satisified. Where indicated, the Regional Counsel will
take appropriate action to have the matter of disclosure of the affected
records removed to Federal court.
(4) Any disclosure of records in response to the receipt of State or
local court process will be made to those individuals designated in the
process to receive such records, or to the court from which such process
issued. Payment of the fees as prescribed by Sec. 1.526(i), as well as
any other cost incident to producing the records, must first be
deposited with the Department of Veterans Affairs by the party who
caused the process to be issued. The original records must remain at all
times in the custody of a representative of the Department of Veterans
Affairs, and, if there is an offer and admission of any record or
document contained therein, permission should be obtained to substitute
a copy so that the original may remain intact in the record.
(d) Notice requirements where disclosures are made pursuant to court
process. Whenever a disclosure of Privacy Act protected records is made
in response to the process of a Federal, State, or local court, the
custodian of the records disclosed will make reasonable efforts to
notify the subject of such records that such subject's records were
disclosed to another person under compulsory legal process. Such notice
should be accomplished when the process compelling disclosure becomes a
matter of public record. Generally, a notice sent to the last known
address of the subject would be sufficient to comply with this
requirement.
(e) Disclosures in response to requests when not accompanied by
court process. Requests received from attorneys or others for copies of
records for use in suits in which the Government is not involved, not
accompanied by a court process, will be handled by the component or
division having jurisdiction over the subject matter. If the request can
be complied with under Sec. 1.503 or Sec. 1.504, and under the Privacy
Act (to the extent that such records are protected by the Privacy Act),
the records requested will be disclosed upon receipt of the required
fee. If, however, the records cannot be furnished under such authority,
the applicant will be advised of the procedure to obtain copies of
records as set forth in paragraphs (b) and (c) of this section.
(f) Suits by or against the Secretary under 38 U.S.C. 3720. Records
pertaining to the loan guaranteed, insured, or made by the Department of
Veterans Affairs may be made available by the General Counsel or the
Regional Counsel subject to the usual rules of evidence, and where
authorized under the Privacy Act, after clearance with the Department of
Justice or U.S. Attorney if appropriate.
(g) Disclosure of drug abuse, alcohol abuse, human immunodeficiency
virus and sickle cell anemia treatment or related records under court
process. Disclosure of these types of records, which are protected from
unauthorized disclosure under 38 U.S.C. 7332, may be made
[[Page 45]]
only in response to an appropriate order of a court of competent
jurisdiction granted after application showing good cause therefore. In
assessing good cause the court is required to weigh the public interest
and the need for disclosure against the injury to the patient or
subject, to the physician-patient relationship, and to the treatment
services. The court, in determining the extent to which any disclosure
of all or any part of any record is necessary, shall impose appropriate
safeguards against unauthorized disclosure. As to a Federal court order
satisfying the requirements of this paragraph, the records will be
disclosed as provided in such order. As to a State or local court order
satisfying the requirements of this subsection, the disclosure of the
records involved is conditioned upon satisfying the provisions set forth
in paragraph (c)(3) of this section. If the aforementioned section is
satisfied, and a disclosure of records is to be forthcoming, the records
will be disclosed as provided in the court order.
(Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 38 U.S.C. 5701 and 38 U.S.C.
7332)
[56 FR 15833, Apr. 18, 1991]
Sec. 1.512 Disclosure of loan guaranty information.
(a) The disclosure of records or information contained in loan
guaranty files is governed by the Freedom of Information Act, 5 U.S.C.
552; the Privacy Act, 5 U.S.C. 552a; the confidentiality provisions of
38 U.S.C. 5701, and the provisions of 38 CFR 1.500-1.584. In addition,
the release of names and addresses and the release of certificates of
reasonable value, appraisal reports, property inspection reports, or
reports of inspection on individual water supply and sewage disposal
systems shall be governed by paragraphs (b), (c), (d), and (e) of this
section.
(b)(1) Upon request, any person is entitled to obtain copies of
certificates of reasonable value, appraisal reports, property inspection
reports, or reports of inspection on individual water supply and sewage
disposal systems provided that the individual identifiers of the
veteran-purchaser(s) or dependents are deleted prior to release of such
documents. However, individual identifiers may be disclosed in
accordance with paragraph (b)(2) of this section. The address of the
property being appraised or inspected shall not be considered an
individual identifier.
(Authority: 38 U.S.C. 5701(a), (c))
(2) Individual identifiers of veteran purchasers or dependents may
be disclosed when disclosure is made to the following:
(i) The individual purchasing the property;
(ii) The current owner of the property;
(iii) The individual that requested the appraisal or report;
(iv) A person or entity which is considering making a loan to an
individual with respect to the property concerned; or
(v) An attorney, real estate broker, or any other agent representing
any of these persons.
(Authority: 38 U.S.C. 5701(c), (h)(2)(D))
(c)(1) The Secretary may release the name, address, or both, and may
release other information relating to the identity of an applicant for
or recipient of a Department of Veterans Affairs-guaranteed, insured, or
direct loan, specially adapted housing grant, loan to finance
acquisition of Department of Veterans Affairs-owned property, release of
liability, or substitution of entitlement to credit reporting agencies,
companies or individuals extending credit, depository institutions,
insurance companies, investors, lenders, employers, landlords, utility
companies and governmental agencies for any of the purposes specified in
paragraph (c)(2) of this section.
(2) A release may be made under paragraph (c)(1) of this section:
(i) To enable such parties to provide the Department of Veterans
Affairs with data which assists in determining the creditworthiness,
credit capacity, income or financial resources of the applicant for or
recipient of loan guaranty administered benefits, or verifying whether
any such data previously received is accurate; or
[[Page 46]]
(ii) To enable the Secretary to offer for sale or other disposition
any loan or installment sale contract.
(Authority: 38 U.S.C. 5701(h)(2)(A), (B), (C))
(d) Upon request, the Secretary may release information relating to
the individual's loan transaction to credit reporting agencies,
companies or individuals extending credit, depository institutions,
insurance companies, investors, lenders, employers, landlords, utility
companies and governmental agencies where necessary in connection with a
transfer of information on the status of a Department of Veterans
Affairs loan account to persons or organizations proposing to extend
credit or render services or other benefits to the borrower in order
that the person or organization may determine whether to extend credit
or render services or other benefits to the borrower. Such releases
shall be made only if the person or organization seeking the information
furnishes the individual's name, address or other information necessary
to identify the individual.
(Authority: 38 U.S.C. 5701(e), (h)(2)(A) and (D))
(e) The Secretary shall maintain information in the loan guaranty
file consisting of the date, notice and purpose of each disclosure, and
the name and address of the person to whom the disclosure is made from
the loan guaranty files.
(Authority: 38 U.S.C. 5701(h)(2)(D), 5 U.S.C. 552a(c))
[47 FR 11279, Mar. 16, 1982]
Sec. 1.513 Disclosure of information contained in Armed Forces
service and related medical records in Department of
Veterans Affairs custody.
(a) Service records. Information received by the Department of
Veterans Affairs from the Departments of the Army, Navy, Air Force, and
the Department of Transportation relative to the military or naval
service of a claimant is furnished solely for the official use of the
Department of Veterans Affairs but such information may be disclosed
under the limitations contained in Sec. Sec. 1.501 through 1.526.
(b) Medical records. Information contained in the medical records
(including clinical records and social data) may be released under the
following conditions:
(1) Complete transcript of r[eacute]sum[eacute] or medical records
on request to:
(i) The Department of the Army.
(ii) The Department of the Navy (including naval aviation and United
States Marine Corps).
(iii) The Department of the Air Force.
(iv) The Department of Transportation (Coast Guard).
(v) Selective Service (in case of registrants only).
(vi) Federal or State hospitals or penal institutions when the
veteran is a patient or inmate therein.
(vii) United States Public Health Service, or other governmental or
contract agency in connection with research authorized by, or conducted
for, the Department of Veterans Affairs.
(viii) Registered civilian physicians, on the request of the
individual or his or her legal representative, when required in
connection with the treatment of the veteran. (The transcript or resume
should be accompanied by the statement ``it is expected that the
information contained herein will be treated as confidential, as is
customary in civilian professional medical practice.'')
(ix) The veteran on request, except information contained in the
medical record which would prove injurious to his or her physical or
mental health.
(x) The next of kin on request of the individual, or legal
representative, when the information may not be disclosed to the veteran
because it will prove injurious to his or her physical or mental health,
and it will not be injurious to the physical or mental health of the
next of kin or cause repugnance or resentment toward the veteran; and
directly to the next of kin, or legal representative, when the veteran
has been declared to be insane or is dead.
(xi) Health and social agencies, on the authority of the veteran or
his or her duly authorized representative.
(2) In addition to the authorizations in paragraph (b)(1) of this
section, the Department of Justice, the Department
[[Page 47]]
of the Treasury, and the U.S. Postal Service may, on request, be given
pertinent information from medical records for use in connection with
investigations conducted by these departments. Each such request shall
be considered on its merits, and the information released should be the
minimum necessary in connection with the investigation conducted by
these departments.
(3) Compliance with court orders calling for the production of
medical records in connection with litigation or criminal prosecutions
will be effected in accordance with Sec. 1.511.
[13 FR 7001, Nov. 27, 1948, as amended at 32 FR 10849, July 25, 1967; 60
FR 63938, Dec. 13, 1995]
Sec. 1.514 Disclosure to private physicians and hospitals other than
Department of Veterans Affairs.
(a) When a beneficiary elects to obtain medical attention as a
private patient from a private practitioner or in a medical center other
than a Department of Veterans Affairs hospital, there may be disclosed
to such private practitioner or head of such medical center (Federal,
State, municipal, or private), such information as to the medical
history, diagnosis, findings, or treatment as is requested, including
the loan of original X-ray films, whether Department of Veterans Affairs
clinical X-rays or service department entrance and separation X-rays,
provided there is also submitted a written authorization from the
beneficiary or his or her duly authorized representative. The
information will be supplied without charge directly to the private
physician or medical center head and not through the beneficiary or
representative. In forwarding this information, it will be accompanied
by the stipulations that it is released with consent of or on behalf of
the patient and that the information will be treated as confidential, as
is customary in civilian professional medical practice.
(b) Such information may be released without charge and without
consent of the patient or his or her duly authorized representative when
a request for such information is received from:
(1) The superintendent of a State hospital for psychotic patients, a
commissioner or head of a State department of mental hygiene, or head of
a State, county, or city health department; or
(2) Any fee basis physician or institution in connection with
authorized treatment of the veteran as a Department of Veterans Affairs
beneficiary; or
(3) Any physician or medical installation treating the veteran under
emergency conditions.
[34 FR 13368, Aug. 19, 1969, as amended at 54 FR 34980, Aug. 23, 1989]
Sec. 1.514a Disclosure to private psychologists.
When a beneficiary elects to obtain therapy or analysis as a private
patient from a private psychologist, such information in the medical
record as may be pertinent may be released. Generally, only information
developed and documented by Department of Veterans Affairs psychologists
will be considered pertinent, although other information from the
medical record may be released if it is determined to be pertinent and
will serve a useful purpose to the private psychologist in rendering his
or her services. Information will be released under this section upon
receipt of the written authorization of the beneficiary or his or her
duly authorized representative. Information will be forwarded to private
psychologists directly, not through the beneficiary or representative,
without charge and with the stipulation that it is released with consent
of or on behalf of the patient and must be treated as confidential as is
customary in regular professional practice.
[34 FR 13368, Aug. 19, 1969]
Sec. 1.514b Disclosures to procurement organizations.
A VHA health care facility may disclose the name and home address of
an ``individual'' as defined in Sec. 1.460 to an authorized
representative of a ``procurement organization'' as also defined in
Sec. 1.460 for the purpose of facilitating a determination by the
procurement organization of whether the individual is a suitable
potential organ, eye, or tissue donor if:
(a) The individual is currently an inpatient in a VHA health care
facility;
[[Page 48]]
(b) The individual is, in the clinical judgment of the individual's
primary health care provider, near death or is deceased as defined in
Sec. 1.460;
(c) The VHA health care facility has a signed agreement with the
procurement organization in accordance with the applicable requirements
of the United States Department of Health and Human Services (HHS); and
(d) The VHA health care facility has confirmed with HHS that it has
certified or recertified the organ procurement organization as provided
in the applicable HHS regulations. VA medical centers must verify
annually in January of each calendar year with FDA that an eye bank or
tissue bank has complied with the FDA registration requirements of 21
CFR part 1271 and that the registration status is active before
permitting an eye bank or tissue bank to receive protected health
information.
(Authority: 38 U.S.C. 5701(k), 7332(b)(2)(E))
[72 FR 48242, Aug. 23, 2007, as amended at 73 FR 65260, Nov. 3, 2008]
Sec. 1.515 To commanding officers of State soldiers' homes.
When a request is received in a Department of Veterans Affairs
regional office, center, or medical center from the commanding officer
of a State soldiers' home for information other than information
relative to the character of the discharge from a Department of Veterans
Affairs center or medical center concerning a veteran formerly domiciled
or hospitalized therein, the provisions of Sec. 1.500 are applicable,
and no disclosure will be made unless the request is accompanied by the
authorization outlined in Sec. 1.503. However, station heads, upon
receipt of a request from the commanding officer of a State soldiers'
home for the character of the discharge of a veteran from a period of
hospital treatment or domiciliary care as a beneficiary of the
Department of Veterans Affairs, will comply with the request,
restricting the information disclosed solely to the character of the
veteran's discharge from such treatment or care. Such information will
be disclosed only upon receipt of a specific request therefor from the
commanding officer of a State soldiers' home.
[30 FR 6435, May 8, 1965]
Sec. 1.516 Disclosure of information to undertaker concerning
burial of a deceased veteran.
When an undertaker requests information believed to be necessary in
connection with the burial of a deceased veteran, such as the name and
address of the beneficiary of the veteran's Government insurance policy,
name and address of the next of kin, rank or grade of veteran and
organization in which he or she served, character of the veteran's
discharge, or date and place of birth of the veteran, and it appears
that the undertaker is holding the body awaiting receipt of the
information requested, the undertaker, in such instances, may be
considered the duly authorized representative of the deceased veteran
for the purpose of obtaining said information. In ordinary cases,
however, the undertaker will be advised that information concerning the
beneficiary of a Government insurance policy is confidential and cannot
be disclosed; the beneficiary will be advised immediately of the
inquiry, and the furnishing of the desired information will be
discretionary with the beneficiary. In no case will the undertaker be
informed of the net amount due under the policy or furnished information
not specifically mentioned in this paragraph.
[46 FR 62059, Dec. 22, 1981]
Sec. 1.517 Disclosure of vocational rehabilitation and education
information to educational institutions cooperating with the
Department of Veterans Affairs.
Requests from educational institutions and agencies cooperating with
the Department of Veterans Affairs in the vocational rehabilitation and
education of veterans for the use of vocational rehabilitation and
education records for research studies will be forwarded to central
office with the facility head's recommendation for review by the Under
Secretary for Benefits. Where the request to conduct a research study is
approved by the Under Secretary for Benefits, the facility head is
authorized by this section to
[[Page 49]]
release information for such studies from vocational rehabilitation and
education records as required: Provided, however, That any data or
information obtained shall not be published without prior approval of
the Under Secretary for Benefits and that data contained in published
material shall not identify any individual veteran.
[30 FR 6435, May 8, 1965]
Sec. 1.518 Addresses of claimants.
(a) It is the general policy of the Department of Veterans Affairs
to refuse to furnish addresses from its records to persons who desire
such information for debt collection, canvassing, harassing or for
propaganda purposes.
(b) The address of a Department of Veterans Affairs claimant as
shown by Department of Veterans Affairs files may be furnished to:
(1) Duly constituted police or court officials upon official request
and the submission of a certified copy either of the indictment returned
against the claimant or of the warrant issued for his or her arrest.
(2) Police, other law enforcement agencies, or Federal, State,
county, or city welfare agencies upon official written request showing
that the purpose of the request is to locate a parent who has deserted
his or her child or children and that other reasonable efforts to obtain
an address have failed. The address will not be released when such
disclosure would be prejudicial to the mental or physical health of the
claimant. When an address is furnished it will be accompanied by the
stipulation that it is furnished on a confidential basis and may not be
disclosed to any other individual or agency.
(c) When an address is requested that may not be furnished under
Sec. Sec. 1.500 through 1.526, the person making the request will be
informed that a letter, or in those cases involving judicial actions,
the process or notice in judicial proceedings, enclosed in an unsealed
envelope showing no return address, with the name of the addressee
thereon, and bearing sufficient postage to cover mailing costs will be
forwarded by the Department of Veterans Affairs. If a request indicates
that judicial action is involved in which a process or notice in
judicial proceedings is required to be forwarded, the Department of
Veterans Affairs will inform the person who requests the forwarding of
such a document that the envelope must bear sufficient postage to cover
costs of mailing and certified or registered mailing fees, including
cost of obtaining receipt for the certified or registered mail when
transmission by this type special mail is desired. At the time the
letter, process, or notice in judicial proceedings is forwarded, the
facility's return address will be placed on the envelope. When the
receipt for certified or registered mail or the undelivered envelope is
returned to the Department of Veterans Affairs, the original sender will
be notified thereof: However, the receipt or the envelope will be
retained by the Department of Veterans Affairs. This provision will be
applicable only when it does not interfere unduly with the functions of
the Service or division concerned. In no event will letters be forwarded
to aid in the collection of debts or for the purpose of canvassing,
harassing, or propaganda. Neither will a letter be forwarded if the
contents could be harmful to the physical or mental health of the
recipient.
(d) Subject to the conditions set forth in Sec. 1.922, the
Department of Veterans Affairs may disclose to consumer reporting
agencies information contained in a debtor's claims folder. Such
information may include the debtor's name and/or address, Department of
Veterans Affairs file number, Social Security number, and date of birth.
(Authority: 38 U.S.C. 5701(g))
[33 FR 10516, July 24, 1968 and 35 FR 5176, Mar. 27, 1970, as amended at
46 FR 62059, Dec. 22, 1981]
Sec. 1.519 Lists of names and addresses.
(a) Any organization wanting a list of names and addresses of
present or former personnel of the armed services and their dependents
from the Department of Veterans Affairs must make written application to
the Department of Veterans Affairs Controller, except lists of
educationally disadvantaged veterans should be requested from the
Director of the nearest regional office. The application must:
(1) Clearly identify the type or category of names and addresses
sought;
[[Page 50]]
(2) Furnish proof satisfactory to the Department of Veterans Affairs
that the organization seeking the list is a ``nonprofit organization.''
Normally, evidence establishing that the organization is exempt from
taxation in accordance with the provisions of 26 U.S.C. 501 or is a
governmental body or institution will be accepted as satisfying this
criteria;
(3) Contain a statement clearly setting forth the purpose for which
the list is sought, the programs and the resources the organization
proposes to devote to this purpose, and establish how such purpose is
``directly connected with the conduct of programs and the utilization of
benefits'' under title 38, U.S.C.; and
(4) Contain a certification that the organization, and all members
thereof who will have access to the list, are aware of the penalty
provisions of 38 U.S.C. 5701(f) and will not use the list for any
purpose other than that stated in the application.
(b) If the Director of the regional office concerned finds that the
organization requesting the list of names and addresses of educationally
disadvantaged veterans is a nonprofit organization and operates an
approved program of special secondary, remedial, preparatory or other
educational or supplementary assistance to veterans as provided under
subchapter V, title 38 U.S.C., then he or she may authorize the release
of such names and addresses to the organization requesting them.
(c) The Associate Deputy Assistant Secretary for Information
Resources Management, with the concurrence of the General Counsel, is
authorized to release lists of names and addresses to organizations
which have applied for such lists in accordance with paragraph (a) of
this section if he or she finds that the purpose for which the
organization desires the names and addresses is directly connected with
the conduct of programs and the utilization of benefits under title 38
U.S.C. Lists of names and addresses authorized to be released pursuant
to this paragraph shall not duplicate lists released to other elements,
segments, or chapters of the same organization.
(d) If the list requested is one that the Department of Veterans
Affairs has previously compiled or created, in the same format, to carry
out one or more of its basic program responsibilities and it is
determined that it can be released, the list may be furnished without
charge. For other types of lists, a charge will be made in accordance
with the provisions of Sec. 1.526.
(e) Upon denial of a request, the Department of Veterans Affairs
Controller or Regional Office Director will inform the requester in
writing of the denial and the reasons therefor and advise the
organization that it may appeal the denial to the General Counsel. In
each instance of a denial of a request, the denial and the reasons
therefor will be made a matter of record.
(f) Section 5701(f), title 38 U.S.C., provides that any
organization, or member thereof, which uses the names and addresses
furnished it for any purpose other than one directly connected with the
conduct of programs and the utilization of benefits under title 38
U.S.C., shall be fined not more than $500 in the case of the first
offense and not more than $5,000 in the case of the subsequent offenses.
Any instance in which there is evidence of a violation of these penal
provisions will be reported in accordance with Sec. 14.560.
(Approved by the Office of Management and Budget under control number
2900-0438)
[38 FR 15601, June 14, 1973, as amended at 46 FR 62059, Dec. 22, 1981;
49 FR 32848, Aug. 17, 1984; 56 FR 59218, Nov. 25, 1991]
Sec. 1.520 Confidentiality of social data.
Persons having access to social data will be conscious of the fact
that the family, acquaintances, and even the veteran have been willing
to reveal these data only on the promise that they will be held in
complete confidence. There will be avoided direct, ill-considered
references which may jeopardize the personal safety of these individuals
and the relationship existing among them, the patient, and the social
worker, or may destroy their mutual confidence and influence, rendering
it impossible to secure further cooperation from these individuals and
agencies. Physicians in talking with beneficiaries will not quote these
data directly but will regard them as indicating possible directions
toward which they may wish to guide the patient's
[[Page 51]]
self-revelations without reproaching the patient for his or her behavior
or arousing natural curiosity or suspicion regarding any informant's
statement. The representatives of service organizations and duly
authorized representatives of veterans will be especially cautioned as
to their grave responsibility in this connection.
[46 FR 62059, Dec. 22, 1981]
Sec. 1.521 Special restrictions concerning social security records.
Information received from the Social Security Administration may be
filed in the veteran's claims folder without special provisions. Such
information will be deemed privileged and may not be released by the
Department of Veterans Affairs except that information concerning the
amount of social security benefits paid to a claimant or the amount of
social security tax contributions made by the claimant may be disclosed
to the claimant or his or her duly authorized representative. Any
request from outside the Department of Veterans Affairs for other social
security information will be referred to the Social Security
Administration for such action as they deem proper.
[27 FR 9599, Sept. 28, 1962]
Sec. 1.522 Determination of the question as to whether disclosure
will be prejudicial to the mental or physical health of claimant.
Determination of the question when disclosure of information from
the files, records, and reports will be prejudicial to the mental or
physical health of the claimant, beneficiary, or other person in whose
behalf information is sought, will be made by the Chief Medical
Director; Chief of Staff of a hospital; or the Director of an outpatient
clinic.
[33 FR 19009, Dec. 20, 1968]
Sec. 1.523 [Reserved]
Sec. 1.524 Persons authorized to represent claimants.
A duly authorized representative will be:
(a) Any person authorized in writing by the claimant to act for him
or her,
(b) An attorney who has filed the declaration required by Sec.
14.629(b)(1) of this chapter, or
(c) His or her legally constituted fiduciary, if the claimant is
incompetent. Where for proper reasons no legally constituted fiduciary
has been or will be appointed, his or her spouse, his or her children,
or, if the claimant is unmarried, either of his or her parents shall be
recognized as the fiduciary of the claimant.
[33 FR 6536, Apr. 30, 1968]
Sec. 1.525 Inspection of records by or disclosure of information to
recognized representatives of organizations and recognized attorneys.
(a)(1) The accredited representatives of recognized organizations
(Sec. 14.627 of this chapter) holding appropriate power of attorney and
recognized attorneys (Sec. 14.629(b) of this chapter) with the written
authorization of the claimant may, subject to the restrictions imposed
by paragraph (a)(2) of this section, inspect the claims, insurance and
allied folders of any claimant upon the condition that only such
information contained therein as may be properly disclosed under
Sec. Sec. 1.500 through 1.526 will be disclosed by him or her to the
claimant or, if the claimant is incompetent, to his or her legally
constituted fiduciary. Under the same restrictions, it is permissible to
release information from and permit inspection of loan guaranty folders
in which a request for a waiver of the debt of a veteran or his or her
spouse has been received, or where there has been a denial of basic
eligibility for loan guaranty benefits. All other information in the
files shall be treated as confidential and will be used only in
determining the status of the cases inspected or in connection with the
presentation to officials of the Department of Veterans Affairs of the
claim of the claimant. The heads of field facilities and the directors
of the services concerned in Central Office will each designate a
responsible officer to whom requests for all files must be made, except
that managers of centers with insurance activities will designate two
responsible officials, recommended by the division chiefs concerned, one
responsible for claims and
[[Page 52]]
allied folders and the other for insurance files. The term claimant as
used in this paragraph includes insureds.
(2) In the case of a living veteran a representative acting under a
power of attorney from any person not acting on behalf of the veteran
will not be permitted to review the records of the veteran or be
furnished any information therefrom to which the person is not entitled,
i.e., information not relating to such person alone. Powers of attorney
submitted by the other person will be considered ``Limited'' and will be
so noted when associated with the veteran's records. The provisions of
this subparagraph are also applicable to recognized attorneys and the
requisite declarations filed by them.
(3) When power of attorney does not obtain, the accredited
representative will explain to the designated officer of the Department
of Veterans Affairs the reason for requesting information from the file,
and the information will be made available only when in the opinion of
the designated officer it is justified; in no circumstances will such
representatives be allowed to inspect the file; in such cases a contact
report will be made out and attached to the case, outlining the reasons
which justify the verbal or written release of the information to the
accredited representative.
(4) In any case where there is an unrevoked power of attorney or
declaration of representation, no persons or organizations other than
the one named in such document shall be afforded information from the
file except under the conditions set forth in Sec. 14.629(b)(2) of this
chapter. When any claimant has filed notice with the Department of
Veterans Affairs that he or she does not want his or her file inspected,
such file will not be made available for inspection.
(b)(1) Inspection of folders by accredited representatives or
recognized attorneys holding a written authorization where such cases
are being processed shall be in space assigned for such inspection.
Otherwise station heads may permit inspection of folders at the desks of
the accredited representatives, in the office(s) which they regularly
occupy.
(2) An insured or after maturity of the insurance by death of the
insured, the beneficiary, may authorize the release to a third person of
such insurance information as the insured or the beneficiary would be
entitled to receive, provided there is submitted to the Department of
Veterans Affairs, a specific authorization in writing for this purpose.
(3) Unless otherwise authorized by the insured or the beneficiary,
as the case may be, such authorized representative, recognized attorney
or accredited representative shall not release information as to the
designated beneficiary to anyone other than the insured or to the
beneficiary after death of the insured. Otherwise, information in the
insurance file shall be subject to the provisions of Sec. Sec. 1.500
through 1.526.
(4) Clinical records and medical files, including files for
outpatient treatment, may be inspected by accredited representatives or
recognized attorneys holding a written authorization only to the extent
such records or parts thereof are incorporated in the claims folder, or
are made available to Department of Veterans Affairs personnel in the
adjudication of the claim. Records or data in clinical or medical files
which are not incorporated in the claims folder or which are not made
available to Department of Veterans Affairs personnel for adjudication
purposes will not be inspected by anyone other than those employees of
the Department of Veterans Affairs whose duties require same for the
purpose of clinical diagnosis or medical treatment.
(5) Under no circumstances shall any paper be removed from a file,
except by a Department of Veterans Affairs employee, for purpose of
having an authorized copy made. Copying of material in a file shall not
be permitted except in connection with the performance of authorized
functions under the power of attorney or requisite declaration of a
recognized attorney.
(6) In any case involving litigation against the Government, whether
contemplated or initiated, inspection, subject to the foregoing, shall
be within the discretion of the General Counsel
[[Page 53]]
or Regional Counsel, except that in insurance suits under 38 U.S.C.
1975, 1984, inspection shall be within the discretion of the official
having jurisdiction of the claim. Files in such cases may be released to
the Department of Justice, but close liaison will be maintained to
insure their return intact upon termination of the litigation.
(c) Facility heads and the directors of the services concerned in
central office will be responsible for the administrative compliance
with and accomplishment of the foregoing within their jurisdiction, and
any violations of the prescribed conditions for inspection of files or
release of information therefrom will be brought to the immediate
attention of the Secretary.
(d) Any person holding power of attorney, a recognized attorney who
has filed the requisite declaration, or the accredited representative of
a recognized organization holding power of attorney shall be supplied
with a copy of each notice to the claimant respecting the adjudication
of the claim. If a claimant dies before action on the claim is
completed, the person or organization holding power of attorney or the
attorney who has filed the requisite declaration may continue to act
until the action is completed except where the power of attorney or
requisite declaration was filed on behalf of a dependent.
(e) When in developing a claim the accredited representative of a
recognized organization finds it necessary to call upon a local
representative to assemble information or evidence, he or she may make
such disclosures to the local representative as the circumstances of the
case may warrant, provided the power of attorney to the recognized
organization contains an authorization permitting such disclosure.
[13 FR 7002, Nov. 27, 1948, as amended at 31 FR 3459, Mar. 5, 1966; 32
FR 10849, July 25, 1967; 33 FR 6536, Apr. 30, 1968]
Sec. 1.526 Copies of records and papers.
(a) Any person desiring a copy of any record or document in the
custody of the Department of Veterans Affairs, which is subject to be
furnished under Sec. Sec. 1.501 through 1.526, must make written
application for such copy to the Department of Veterans Affairs
installation having custody of the subject matter desired, stating
specifically: (1) The particular record or document the copy of which is
desired and whether certified and validated, or uncertified, (2) the
purpose for which such copy is desired to be used.
(b) The types of services provided by the Department of Veterans
Affairs for which fees will be charged are identified in paragraph (i)
of this section.
(c) This section applies to the services furnished in paragraph (b)
of this section when rendered to members of the public by the Department
of Veterans Affairs. It does not apply to such services when rendered to
or for other agencies or branches of the Federal Government, or State
and local governments when furnishing the service will help to
accomplish an objective of the Department of Veterans Affairs, or when
performed in connection with a special research study or compilation
when the party requesting such services is charged an amount for the
whole job.
(d) When copies of a record or document are furnished under
Sec. Sec. 1.506, 1.507, 1.510, and 1.514, such copies shall be supplied
without charge. Moreover, free service may be provided, to the extent of
one copy, to persons who have been required to furnish original
documents for retention by the Department of Veterans Affairs.
(e) The following are circumstances under which services may be
provided free at the discretion of facility heads or responsible Central
Office officials:
(1) When requested by a court, when the copy will serve as a
substitute for personal court appearance of a Government witness.
(2) When furnishing the service free saves costs or yields income
equal to the direct costs of the agency providing the service. This
includes cases where the fee for the service would be included in a
billing against the Government (for example, in cost-type contracts, or
in the case of private physicians who are treating Government
beneficiaries at Government expense).
(3) When a service is occasional and incidental, not of a type that
is requested often, and if it is administratively determined that a fee
would be
[[Page 54]]
inappropriate in such an occasional case.
(f) When information, statistics, or reports are released or
furnished under Sec. 1.501 or Sec. 1.519, the fee charge, if any, will
be determined upon the merits of each individual application.
(g) In those cases where it is determined that a fee shall be
charged, the applicant will be advised to deposit the amount of the
lawful charge for the copy desired. The amount of such charge will be
determined in accordance with the schedule of fees prescribed in
paragraph (i) of this section. The desired copy will not be delivered,
except under court subpoena, until the full amount of the lawful charge
is deposited. Any excess deposit of $1 or more over the lawful charge
will be returned to the applicant. Excess deposits of less than $1 will
be returned upon request. When a deposit is received with an
application, such a deposit will be returned to the applicant should the
application be denied.
(h) Copies of reports or records received from other Government
departments or agencies will not be furnished except as provided in
Sec. 1.513.
(i) Fees to be charged--(1) Schedule of fees:
------------------------------------------------------------------------
Activity Fees
------------------------------------------------------------------------
(i) Duplication of document by any $0.15 per page after first 100 one-
type of reproduction process to sided pages.
produce plain one-sided paper
copies of a standard size (8\1/
2\ x 11; 8\1/
2\ x 14;
11 x 14).
(ii) Duplication of non-paper Actual direct cost to the Agency as
records, such as microforms, defined in Sec. 1.555(a)(2) of
audiovisual materials (motion this part to the extent that it
pictures, slides, laser optical pertains to the cost of
disks, video tapes, audiotapes, duplication.
etc.) computer tapes and disks,
diskettes for personal computers,
and any other automated media
output.
(iii) Duplication of documents by Actual direct cost to the Agency as
any type of reproduction process defined in Sec. 1.555(a)(2) of
not covered by paragraphs (i)(1) this part to the extent that it
(i) and (ii) of this section to pertains to the cost of
produce a copy in a form duplication.
reasonably usable by a requester.
(iv) Providing special information, Actual cost to the Agency including
statistics, reports, drawings, computer and manual search costs,
specifications, lists of names and copying costs, labor, and material
addresses (either in paper or and overhead expenses.
machine readable form), computer
or other machine readable output.
(v) Attestation under the seal of $3.00 per document so certified.
the Agency.
(vi) Providing abstracts or copies $10.00 per request.
of medical and dental records to
insurance companies for other than
litigation purposes.
(vii) Providing files under court Actual direct cost to the Agency.
subpoena.
------------------------------------------------------------------------
(Note. If VA regularly contracts for duplicating services related to
providing the requested records, such as the duplication of microfilm
or architect's plans and drawings, the contractor fees may be included
in the actual direct cost to the Agency)
(2) Benefit records. When VA benefit records are requested by a VA
beneficiary or applicant for VA benefits, the duplication fee for one
complete set of such records will be waived.
(Authority: 38 U.S.C. 5702(b))
(j) If the copy is to be transmitted by certified or registered
mail, airmail, or special delivery mail, the postal fees therefor shall
be added to the other fees provided in paragraph (i) of this section (or
the order must include postage stamps or stamped return envelopes for
the purpose).
(k) Those Department of Veterans Affairs installations not having
copying equipment are authorized to arrange with the nearest Department
of Veterans Affairs installation having such equipment to make the
necessary authorized copies of records or documents.
(l) Administration, staff office, and field facility heads are
authorized to designate employees to certify copies of records and
papers furnished under the provisions of paragraph (a) of this section.
[19 FR 3224, June 2, 1954, as amended at 32 FR 10850, July 25, 1967; 33
FR 9342, June 26, 1968; 35 FR 20001, Dec. 31, 1970; 37 FR 2676, Feb. 4,
1972; 39 FR 3938, Jan. 31, 1974; 53 FR 10376, Mar. 31, 1988; 54 FR
34980, Aug. 23, 1989]
Sec. 1.527 Administrative review.
(a) Any person may, in the event of a denial of his or her request
to inspect or obtain information from or copies of records within the
purview of Sec. Sec. 1.501
[[Page 55]]
through 1.526, appeal such denial. Such appeal, stating the
circumstances of the denial, should be addressed, as appropriate, to the
field facility, administration, or staff office head.
(b) A denial action not reversed by a field facility,
administration, or staff office head on appeal, will be referred through
normal channels to the General Counsel.
(c) The final agency decision in such appeals will be made by the
General Counsel or the Deputy General Counsel.
[32 FR 10850, July 25, 1967, as amended at 55 FR 21546, May 25, 1990]
Release of Information From Department of Veterans Affairs Records Other
Than Claimant Records
Note: Sections 1.550 through 1.559 concern the availability and
release of information from files, records, reports, and other papers
and documents in Department of Veterans Affairs custody other than those
pertaining to claims under any of the laws administered by the
Department of Veterans Affairs. As to the release of information from
Department of Veterans Affairs claimant records, see Sec. Sec. 1.500
through 1.527. Section 1.550 series implement the provisions of 5 U.S.C.
552.
[40 FR 12656, Mar. 20, 1975]
Authority: Sections 1.550 to 1.559 issued under 72 Stat. 1114; 38
U.S.C. 501.
Sec. 1.550 General.
The Department of Veterans Affairs policy is one of disclosure of
information from agency records to the extent permitted by law. This
includes the release of information which the Department of Veterans
Affairs is authorized to withhold under 5 U.S.C. 552(b) (see Sec.
1.554) if it is determined: (a) By the Secretary of Veterans Affairs or
the Deputy Secretary that disclosure of such information will serve a
useful purpose or (b) by an administration, staff office, or field
facility head or designee under Sec. 1.556(a) that disclosure will not
adversely affect the proper conduct of official business or constitute
an invasion of personal privacy.
[40 FR 12656, Mar. 20, 1975]
Sec. 1.551 [Reserved]
Sec. 1.552 Public access to information that affects the public when
not published in the Federal Register as constructive notice.
(a) Those statements of policy and interpretations adopted by the
Department of Veterans Affairs but not published in the Federal
Register, and administrative manuals and staff instructions that affect
any member of the public, unless promptly published and copies offered
for sale, will be kept currently indexed by the office of primary
program responsibility or the Manager, Administrative Services, as
determined by the Secretary or designee. Such index or indexes or
supplements thereto will be promptly published, quarterly or more
frequently, and distributed (by sale or otherwise) unless the Department
of Veterans Affairs determines by order published in the Federal
Register that publication would be unnecessary and impracticable, in
which case the Department of Veterans Affairs will nonetheless provide
copies of such index or indexes or supplements thereto on request at a
cost not to exceed the direct cost of duplication. Both the index and
the materials indexed as required by this paragraph will be made
available to the public, for inspection and copying. Public reading
facilities for this purpose will be maintained in Department of Veterans
Affairs Central Office and Department of Veterans Affairs field
facilities, open to the public during the normal duty hours of the
office in which located. Orders made in the adjudication of individual
claims under laws administered by the Department of Veterans Affairs are
confidential and privileged by statute (38 U.S.C. 5701) and so are
exempt from this requirement.
(b) When publishing or making available to the public any opinion,
order, statement of policy, interpretation, staff manual or instruction
to staff, identifying details will be deleted, and the deletion
justified in writing, to the extent required to prevent a clearly
unwarranted invasion of personal privacy.
(c) No final order, opinion, statement of policy, interpretation,
staff manual or instruction which is issued, adopted,
[[Page 56]]
or promulgated after July 4, 1967, that affects any member of the public
may be relied upon, used, or cited as precedent against any private
party unless it has been indexed and either made available or published
as provided in this section or unless that private party shall have
actual and timely notice of the terms thereof.
[32 FR 10850, July 25, 1967, as amended at 40 FR 12657, Mar. 20, 1975;
72 FR 65462, Nov. 21, 2007]
Sec. 1.553 Public access to other reasonably described records.
(a) Except for requests for records which are processed under
Sec. Sec. 1.551 and 1.552 of this part, unless otherwise provided for
in title 38, Code of Federal Regulations, all requests for records shall
be processed under paragraph (b) of this section, as well as under any
other VA law or regulation governing access to or confidentiality of
records or information. Records or information customarily furnished to
the public in the regular course of the performance of official duties
may be furnished to the public without reference to paragraph (b) of
this section. To the extent permitted by other laws and regulations, VA
will also consider making available records which it is permitted to
withhold under the FOIA if it determines that such disclosure could be
in the public interest.
(b) Reasonably described records in VA custody, or copies thereof,
other than records made available to the public under provisions of
Sec. Sec. 1.551 and 1.552 of this part, or unless otherwise provided
for in title 38, Code of Federal Regulations, requested in accordance
with published rules stating the time, place, fees (if any), and
procedures to be followed, will be made promptly available, except as
provided in Sec. 1.554 of this part, to any person upon request. Such
request must be in writing, over the signature of the requester and must
contain a reasonable description of the record desired so that it may be
located with relative ease. The request should be made to the office
concerned (having jurisdiction of the record desired) or, if not known,
to the Director or Veterans Service Center Manager in the nearest VA
regional office; the Director, or Chief, Medical Administration Service,
or other responsible official of VA medical facility where most recently
treated; or to the Department of Veterans Affairs Central Office, 810
Vermont Avenue NW., Washington, DC 20420. Personal contacts should
normally be made during the regular duty hours of the office concerned,
which are 8 a.m. to 4:30 p.m. Monday through Friday for VA Central
Office and most field facilites.
(Authority: 5 U.S.C. 552(a)(3))
[53 FR 10377, Mar. 31, 1988, as amended at 71 FR 28586, May 17, 2006]
Sec. 1.553a Time limits for Department of Veterans Affairs response
to requests for records.
(a) When a request for records made under Sec. 1.551, Sec. 1.552
or Sec. 1.553 is received it will be promptly referred for action to
the proper employee designated in accordance with Sec. 1.556 to take
initial action on granting or denying requests to inspect or obtain
information from or copies of the records described.
(b) Any such request will then be promptly evaluated and a
determination made within 10 days (excepting Saturdays, Sundays, and
legal public holidays) after the receipt of the request whether the
Department of Veterans Affairs will comply with the request. Upon
determination to comply or deny the request the person making the
request will be notified immediately of the determination and the
reasons therefor, and of the right of the person to appeal to the
Secretary of Veterans Affairs any adverse determination. Records to be
furnished will be supplied promptly.
(c) Upon receipt of such an appeal from an adverse determination it
will be evaluated and a further determination made within 20 days
(excepting Saturdays, Sundays, and legal public holidays) after receipt
of the appeal. If on appeal the denial is in whole or in part upheld the
Department of Veterans Affairs will notify the requester of the
provisions for judicial review of this determination. (See Sec. Sec.
1.557 and 1.558.)
(d) In unusual circumstances, specifically as follows, the time
limits in paragraphs (b) and (c) of this section may be extended by
written notice to the requester setting forth the reasons
[[Page 57]]
for such extension and the date on which a determination is expected to
be dispatched. The date specified will not result in an extension for
more than 10 working days. Unusual circumstances will be interpreted to
mean, but only to the extent reasonably necessary to the proper
processing of the particular request, as follows:
(1) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
Department of Veterans Affairs having substantial subject-matter
interest therein.
(e) Pursuant to section 552(a)(6), title 5 U.S.C., any person making
a request to the Department of Veterans Affairs for records under
section 552(a) (1), (2) or (3) (see Sec. Sec. 1.551, 1.552 and 1.553)
will be deemed to have exhausted his or her administrative remedies with
respect to such request if the Department of Veterans Affairs fails to
comply with the applicable time limit provisions of this section. If,
however, the Government can show exceptional circumstances exist and
that the Department of Veterans Affairs is exercising due diligence in
responding to the request, the statute also permits the court to retain
jurisdiction and allow the Department of Veterans Affairs additional
time to complete its review of the records.
(f) Requests for the release of information from files, records,
reports, and other papers and documents in Department of Veterans
Affairs custody pertaining to claims under any of the laws administered
by the Department of Veterans Affairs (covered by Sec. Sec. 1.500
through 1.527) may also be initiated under 5 U.S.C. 552. Such requests
will also be evaluated, a determination made within 10 days (excepting
Saturdays, Sundays, and legal public holidays) after the receipt of the
request whether the Department of Veterans Affairs will comply with the
request, and the requester notified immediately of the determination and
the reasons therefor, and of the right of the person to appeal to the
Secretary of Veterans Affairs any adverse determination. Records to be
furnished will be supplied promptly.
[40 FR 12657, Mar. 20, 1975]
Sec. 1.554 Exemptions from public access to agency records.
(a) The exemptions in this paragraph constitute authority to
withhold from disclosure certain categories of information in Department
of Veterans Affairs records except that any reasonably segregable
portion of a record shall be provided to any person requesting such
record after deletion of the portions which are exempt under this
paragraph.
(1) Specifically authorized under criteria established by an
Executive order to be kept secret in the interest of the national
defense or foreign policy, and are in fact properly classified pursuant
to such Executive order.
(2) Related solely to internal Department of Veterans Affairs
personnel rules and practices.
(3) Specifically exempted from disclosure by statute other than 5
U.S.C. 552b, provided that such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld.
(4) Trade secrets and commercial or financial information obtained
from any person and privileged or confidential.
(5) Interagency or intra-agency memorandums or letters which would
not be available by law to a private party in litigation with the
Department of Veterans Affairs.
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy.
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of
[[Page 58]]
such law enforcement records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential
source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law, or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(Authority: 5 U.S.C. 552(b)(7))
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of any agency
responsible for the regulation or supervision of financial institutions.
(9) Geological and geophysical information and data (including maps)
concerning wells.
(b) Information in the categories exempted under paragraph (a) of
this section, other than in paragraph (a)(3) which is applicable to
Department of Veterans Affairs claimant records, will be released only
as authorized in Sec. 1.550. The release of information from Department
of Veterans Affairs claimant records will be made only in accordance
with Sec. Sec. 1.501 through 1.526.
(c)(1) Whenever a request is made which involves access to records
described in paragraph (a)(7)(i) of this section and
(i) The investigation or proceeding involves a possible violation of
criminal law, and
(ii) There is reason to believe that
(A) The subject of the investigation or proceeding is not aware of
its pendency, and
(B) Disclosure of the existence of the records could reasonably be
expected to interfere with enforcement proceedings, the Agency may,
during only such time as that circumstance continues, treat the records
as not subject to the requirements of this section.
(2) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal identifier are
requested by a third party according to the informant's name or personal
identifier, the Department may treat the records as not subject to the
requirements of this section unless the informant's status as an
informant has been officially confirmed.
(Authority: 5 U.S.C. 552(c)(1) and (c)(2))
[32 FR 10850, July 25, 1967, as amended at 40 FR 12657, Mar. 20, 1975;
42 FR 37976, July 26, 1977; 53 FR 9442, Mar. 23, 1988]
Sec. 1.554a Predisclosure notification procedures for confidential
commercial information.
(a) General. During the conduct of its business the Department of
Veterans Affairs (VA) may acquire records which contain confidential
commercial information, as defined in paragraph (b) of this section.
Such records will not be released in response to a Freedom of
Information Act (FOIA) request, except under the provisions of this
section. This section establishes uniform VA procedures for giving
submitters predisclosure notice of requests for their records which
contain confidential commercial information that may be exempt from
disclosure under 38 CFR 1.554(a)(4). These procedures are required by
Executive Order 12600, Predisclosure Notification Procedures for
Confidential Commercial Information, dated June 23, 1987.
(b) Definitions--(1) Confidential commercial information means
records provided to the government by a submitter that arguably contain
material
[[Page 59]]
exempt from release under Exemption 4 of the FOIA, 5 U.S.C. 552 (b)(4),
as implemented by Sec. 1.554 of this part, because disclosure could
reasonably be expected to cause substantial competitive harm.
(2) Submitter means any person or entity who provides confidential
commercial information to the government. The term ``submitter''
includes, but is not limited to corporations, State governments, and
foreign governments.
(c) Notification to submitters of confidential commercial
information. When a request is received, for a submitter's record(s), or
information which contains confidential commercial information, and the
request is being processed under the FOIA, 5 U.S.C. 552, the submitter
will be promptly notified in writing of the request when required by
paragraph (d) of this section. The notification will advise the
submitter that a request for its record(s) has been received and is
being processed under the FOIA. The notice will describe the exact
nature of the record(s) requested or will provide to the submitter
copies of the record(s) or portions thereof containing the requested
confidential commercial information. It will also inform the submitter
of the opportunity to object to the disclosure in writing within 10
working days, and of the requirements for such a written objection, as
described in paragraph (f) of this section. The notification will be
sent by certified mail, return receipt requested.
(d) When notification is required. (1) For confidential commercial
information submitted to VA prior to January 1, 1988, notification to
submitters is required whenever:
(i) The records are less than 10 years old and the requested
information has been designated by the submitter as confidential
commercial information; or
(ii) VA facility, administration, or staff office which has custody
of the requested records has reason to believe that disclosure of the
requested information could reasonably be expected to cause substantial
competitive harm.
(2) For confidential commercial information submitted to VA on or
after January, 1, 1988, notification is required whenever:
(i) The submitter has in good faith designated the requested records
as confidential information in accordance with paragraph (e) of this
section; or
(ii) VA facility, administration, or staff office which has custody
of the requested records has reason to believe that disclosure could
reasonably be expected to cause substantial competitive harm.
(e) Designation by submitters of information as confidential
commercial information. (1) When business records are provided to VA,
the submitter may appropriately designate any records or portions
thereof which contain confidential commercial information, the
disclosure of which could reasonably be expected to cause substantial
competitive harm. This designation may be made at the time the
information or record is given to VA or within a reasonable period of
time thereafter, but not later than 60 days after receipt of the
information by VA. Information so designated will be clearly identified
by marking it with the words ``confidential commercial information'' or
by an accompanying detailed written description of the specific kinds of
information that is designated. If a complete document or record is
designated, the cover page of the document or record will be clearly
marked ``This entire (document, record, etc.) consists of confidential
commercial information.'' If only portions of documents are designated,
only those specific designated portions will be conspicuously annotated
as ``confidential commercial information.''
(2) A designation described in paragraph (e)(1) of this section will
remain in effect for a period of not more than 10 years after submission
to VA, unless the submitter provides acceptable justification for a
longer specific period. If a shorter designation period is adequate, the
submitter's designation should include the earlier expiration date.
Whenever possible, the submitter's designation should be supported by a
statement or certification by an officer or authorized representative of
the submitter that the records are in fact confidential commercial
information and have not been published or made available to the public.
[[Page 60]]
(f) Opportunity to object to disclosure. (1) When notification to a
submitter is made pursuant to paragraph (c) of this section, the
submitter or designee may object to the disclosure of any specified
portion of the record(s). Such objection will be in writing, will be
addressed to the VA official who provided notice, will identify the
specific record(s) or portion(s) of records that should not be
disclosed, will specify all grounds upon which disclosure is opposed,
and will explain in detail why the information is considered to be a
trade secret or confidential commercial information, i.e., why
disclosure of the specified records could reasonably be expected to
cause substantial competitive harm. Information provided by a submitter
pursuant to this paragraph may itself be subject to disclosure under the
FOIA.
(2) Any objection to disclosure must be submitted within 10 working
days after receipt by the submitter of notification as provided for in
paragraph (c) of this section.
(3) If an objection to disclosure is received within the 10 working
day time period, careful consideration will be given to all specified
grounds for nondisclosure prior to making an administrative
determination whether to disclose the record. When it is determined to
disclose the requested record(s) or portions of records which are the
subject of an objection, the submitter will be provided a written
statement of the VA decision, the reason(s) that the submitter's
objections to disclosure were overruled, a description or copy of the
exact information or record(s) to be disclosed which were the subject of
an objection, and the specified date of disclosure. The date of
disclosure will not be less than 10 working days from the date this
notice is placed into mail delivery channels.
(g) Notices to requester. (1) When a request is received for records
that may contain confidential commercial information protected by FOIA
exemption (b)(4), 5 U.S.C. 552(B)(4), the requester will be notified
that the request is being processed under the provisions of this
regulation and, as a consequence, there may be a delay in receiving a
response.
(2) Whenever a submitter is notified, pursuant to paragraph (c) of
this section, that VA has received a request for records which had been
provided by such submitter, and that such request was being processed
under the FOIA, the requester will be notified that the submitter is
being provided an opportunity to comment on the request. The notice to
the requester should not include any of the specific information
contained in the records being requested.
(3) Whenever VA notifies a submitter of a final decision, the
requester will also be notified by separate correspondence. This
notification to the requester may be contained in VA's FOIA decision.
(h) Notices of lawsuit. Whenever a FOIA requester brings suit
seeking to compel disclosure of confidential commercial information, the
submitter of the information will be promptly notified.
(i) Exceptions to the notification requirements. The predisclosure
notification requirements in paragraph (c) of this section need not be
followed if:
(1) It is determined that the record(s) or information should not be
disclosed;
(2) The record(s) requested have been published or have been
officially made available to the public;
(3) Disclosure of the record(s) or information is required by law
(other than the FOIA, 5 U.S.C. 552);
(4) Disclosure is required by an Agency rule that:
(i) Was adopted pursuant to notice and public comment;
(ii) Specifies narrow classes of records submitted to VA that are to
be released under the FOIA; and
(iii) Provides in exceptional circumstances for notice when the
submitter provides written justification, at the time the information is
submitted or a reasonable time thereafter, that disclosure of the
information could reasonably be expected to cause substantial
competitive harm;
(5) The record(s) requested are not designated by the submitter as
exempt from disclosure in accordance with paragraph (e) of this section,
and the submitter had an opportunity to do so at the time of submission
of the
[[Page 61]]
record(s) or a reasonable time thereafter, and VA does not have
substantial reason to believe that disclosure of the information would
result in competitive harm; or
(6) The designation made by the submitter in accordance with
paragraph (e) of this section appears obviously frivolous, except that,
in such case, VA must still provide the submitter with advance written
notice of any final administrative disclosure determination not less
than 10 working days prior to the specified disclosure date.
(Approved by the Office of Management and Budget under control number
2900-0393)
(Authority: 38 U.S.C. 501; 5 U.S.C. 552(b)(4): E.O. 12600 (52 FR 23781))
[57 FR 2229, Jan. 21, 1992]
Sec. 1.555 Fees.
(a) Definitions of terms. For the purpose of this section, the
following definitions apply:
(1) Commercial use request means a request from or on behalf of one
who seeks information for a use or purpose that furthers the commercial,
trade or profit interests of the requester or the person on whose behalf
the request is made. To determine whether a request properly belongs in
this category, consideration must be given to the use to which a
requester will put the documents requested. Where the use of the records
sought is not clear in the request or where there is reasonable cause to
doubt the use to which the requester will put the records sought,
additional information may be sought from the requester before assigning
the request to a specific category.
(2) Direct costs means those expenditures which VA actually incurs
in searching for and duplicating (and in the case of commercial use
requests, reviewing) documents to respond to a Freedom of Information
Act (FOIA) request. Direct costs include, for example, the salary of the
employee performing work, i.e., the basic rate of pay for the employee,
plus 16 percent of that rate to cover benefits, and the cost of
operating duplicating machinery. Not included in direct costs are
overhead expenses such as costs of space, and heating or lighting of the
facility in which the records are stored.
(3) Duplication means the process of making a copy of a document
necessary to respond to a FOIA request. Such copies can take the form of
paper copy, microform, audiovisual materials or machine readable
documentation (e.g., magnetic tape or disk), among others. The copy
provided must be in a form that is reasonably usable by requesters.
(4) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of graduate higher
education, an institution of undergraduate higher education, an
institution of professional education, and an institution of vocational
education, which operates a program or programs of scholarly research.
To determine whether a request properly belongs in this category, the
request must be evaluated to ensure that it is apparent from the nature
of the request that it serves a scholarly research goal of the
institution, rather than an individual goal of the requester or a
commercial goal of the institution.
(5) Non-commercial scientific institution means an institution that
is not operated on a commercial basis (as that term is referenced under
Commercial use request of this paragraph) and which is operated solely
for the purpose of conducting scientific research, the results of which
are not intended to promote any particular product or industry.
(6) Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term news means information that is
about current events or that would be of current interest to the public.
Examples of news media entities include television or radio stations
broadcasting to the public at large, and publishers of periodicals (but
only in those instances when they can qualify as disseminators of news)
who make their products available for purchase or subscription by the
general public. These examples are not intended to be all inclusive. As
traditional methods of news delivery evolve (e.g., electronic
dissemination of newspapers through telecommunications services), such
alternative media will be included in this category.
[[Page 62]]
Freelance journalists may be regarded as working for a news organization
if they can demonstrate a solid basis for expecting publication through
that organization, even though not actually employed by it. A
publication contract would be the clearest proof, but the requester's
past publication history can be considered also. In any case,
freelancers who do not qualify for inclusion in the representative of
the news media category may seek a reduction or waiver of fees under
paragraph (f) of this section.
(7) Review means the process of examining documents located in
response to a commercial use request (see definition of commercial use
request in this section) to determine whether any portion of any
document located is permitted to be withheld. It also includes
processing any documents for disclosure in response to a commercial use
request, e.g., doing all that is necessary to excise them and otherwise
prepare them for release. The term review does not include time spent
resolving general legal or policy issues regarding the application of
exemptions.
(8) Search means all the time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within documents. Searches may be done
manually or by computer using existing programs. The most efficient and
least expensive manner of searching for material will be used to
minimize costs to VA and the requester. For example, line-by-line
searches will not be conducted when duplicating an entire document is
the least expensive and quicker method of complying with a request. The
term search does not cover the time spent to review documents to
determine whether all or portions thereof can be withheld under one of
the nine categories of exemptions identified in Sec. 1.554 of this
part.
(b) Fees to be charged. (1) Except as provided in paragraphs (c),
(d), (f) and (g) of this section, the Department of Veterans Affairs
will charge fees that recoup the full allowable direct costs for
responding to each request from the public. Such fees will be charged in
accordance with the schedule of fees in paragraph (e) of this section,
and other requirements or restrictions in this regulation. The most
efficient and least costly methods will be used to comply with requests
for documents made under the FOIA.
(2) If it is estimated that charges for duplication determined by
using the fee schedule in Sec. 1.555(e) of this part are likely to
exceed $25, the requester will be notified of the estimated amount of
fees, unless the requester has indicated in advance his or her
willingness to pay fees as high as those anticipated. Such notice will
offer the requester the opportunity to confer with Department personnel
with the object of reformulating the request to meet his or her needs at
a lower cost.
(3) Each administration and staff office upon approval of the
Secretary is authorized to contract with private sector services to
locate, reproduce, and disseminate records in response to FOIA requests
when that is the most efficient and least costly method. If a contractor
is used, the ultimate cost to the requester can be no greater than it
would if the administration, staff office, or field facility performed
the task, itself. In no case may an administration, staff office, or
field facility contract out responsibilities which the FOIA provides
that they alone may discharge, such as determining the applicability of
an exemption, or determining whether to waive or reduce fees.
(4) When documents that would be responsive to a request are
maintained for distribution by agencies operating statutory-based fee
schedule programs, in which the agency is required to set the level of
fees for particular types of records, such as the National Technical
Information Service or the Government Printing Office, the requester of
such documents will be informed of the steps necessary to obtain records
from those sources, rather than from VA.
(c) Restrictions on assessing fees. With the exception of commercial
use requests no charges will be assessed for the first 100 pages of
duplication and the first two hours of search time. Moreover, no fees
are to be charged any requester, including commercial use requesters, if
the cost of collecting the fee is equal to or greater than the fee
itself. These provisions work together
[[Page 63]]
so that, except for commercial use requests, fees will not be assessed
until the free search and duplication have been provided. For example,
if a request takes two hours and ten minutes of search time and results
in 105 reproduced pages of documents, fees can be charged for only 10
minutes of search time and for only five pages of reproduction. If this
cost were equal to or less than the cost to VA of billing the requester
and processing the fee collected, no charges would be assessed. (NOTE:
The cost of collecting fees are VA's administrative costs of receiving
and recording a requester's remittance, and processing the fee for
deposit in the Treasury Department's special account. The cost is
determined to be negligible. The per-transaction costs to the Treasury
to handle such remittances is negligible and will not be considered in
the Department's determination.)
(1) For purposes of the restriction on assessing fees, the word
pages refers to one-sided paper copies of the standard sizes 8\1/
2\ x 11 or 8\1/2\ x 14 or 11
x 14. Accordingly, requesters will not be
entitled to 100 microfiche or 100 computer disks free. One microfiche
containing the equivalent of 100 pages or 100 pages of computer printout
might meet the terms of the restriction.
(2) The term search time in this context is based on manual
searches. To calculate the computer search time for the purpose of
applying the two-hour search restriction, the hourly cost of operating
the computer's central processing unit will be combined with the
operator's hourly salary, plus 16 percent of the salary. When the cost
of the search (including the operator time and the cost of the computer
to process a request) equals the equivalent dollar amount of two hours
of the salary of the person performing the search, i.e., the operator,
charges will begin to be assessed for a computer search.
(d) Categories of requesters and fees to be charged each category.
There are four categories of FOIA requesters: Commercial use requesters;
educational and non-commercial scientific institutional requesters;
requesters who are representatives of news media; and all other
requesters. Specific levels of fees will be charged for each of these
categories as follows:
(1) Commercial use requesters. When a request for documents for
commercial use is received, the full direct costs of searching for,
reviewing for release, and duplicating the records sought will be
charged to the requester. Commercial use requesters are not entitled to
two hours of free search time nor 100 free pages of reproduced
documents. Moreover, the commercial use requester will be charged the
cost of searching for and reviewing records even if there is ultimately
no disclosure of records. The requester must reasonably describe the
records sought.
(2) Educational and non-commercial scientific institution
requesters. These requesters will be charged only for the cost of
reproduction, excluding charges for the first 100 pages. In order to be
considered a member of this category, a requester must show that the
request is being made as authorized by and under the auspices of a
qualifying institution and that the records are not sought for a
commercial use. If the request is from an educational institution, the
requester must show that the records sought are in furtherance of
scholarly research. If the request is from a non-commercial scientific
institution, the requester has to show that the records are sought in
furtherance of scientific research. Information necessary to support a
claim of being categorized as an educational or non-commercial
scientific institution requester will be provided by the requester, and
the requester must reasonably describe the records sought.
(3) Representatives of news media. These requesters will be charged
for the cost of reproduction, only, excluding charges for the first 100
pages. To be included in this category, a requester must fall within the
definition of a representative of the news media specified in paragraph
(a)(vi) of this section, and the request must not be made for commercial
use. A request for records supporting the news dissemination function of
the requester will not be considered to be a request that is for
commercial use. Requesters must reasonably describe the records sought.
[[Page 64]]
(4) All other requesters. Any requester that does not fit into any
of the categories in this section will be charged fees which recover the
full reasonable direct cost of searching for and reproducing records
that are responsive to the request, except that the first 100 pages of
reproduction and the first two hours of search time will be furnished
without charge. In addition, under certain circumstances specified in
paragraph (f) of this section, fees will be waived or reduced at the
discretion of field facility heads, their designee, or responsible
Central Office officials. Requests from VA beneficiaries, applicants for
VA benefits, or other individuals for records retrievable by their name
or other personal identifier will initially be processed under 38 U.S.C.
5701 and 5 U.S.C. 552a and will be assessed fees in accordance with the
applicable fee provisions of Sec. 1.526(i) or Sec. 1.577(f) of this
part. To the extent that records are not disclosable under these
provisions, the disclosure of such records will be evaluated under
Sec. Sec. 1.550 through 1.559 of this part, and fees will be assessed
under paragraph (e) of this section. Requesters must reasonably describe
the records sought.
(e) Schedule of fees:
------------------------------------------------------------------------
Activity Fees
------------------------------------------------------------------------
(1) Duplication of documents by any $0.15 per page.
type of reproduction process to
produce plain one-sided paper
copies of a standard size (8\1/
2\ x 11; 8\1/
2\ x 14;
11 x 14).
(2) Duplication of non-paper Actual direct cost to the Agency.
records, such as microforms, (See paragraph (a)(2) of this
audiovisual materials (motion section and, if costs are likely
pictures, slides, laser optical to exceed $25.00, paragraph (b)(2)
disks, video tapes, audiotapes, of this section.
etc.) computer tapes and disks,
diskettes for personal computers,
and any other automated media
output.
(3) Duplication of documents by any Actual direct cost to the Agency.
type of reproduction process not (See paragraph (a)(2) of this
covered by paragraphs (e)(1) and section and, if costs are likely
(2) of this section to produce a to exceed $25.00, paragraph (b)(2)
copy in a form reasonably usable of this section.
by the requester.
(4) Document search by manual (non- Basic hourly salary rate of the
automated) methods. employee(s) performing the search,
plus 16 percent. (If costs are
likely to exceed $25.00, see
paragraph (g)(2) of this section.)
(Note--If a department, staff office or field station uses exclusively a
single class of personnel, e.g., all administrative/clerical or all
professional/executive, an average rate for the range of grades
involved may be used).
(5) Document search using automated Actual direct cost to perform
methods, such as by computer. search. (See paragraph (c)(2) of
this section, and, if costs are
likely to exceed $25.00, see
paragraph (g)(2) of this section.)
(6) Document review (use only for Basic hourly salary rate of
commercial use requesters). employee(s) performing initial
review to determine whether to
release document(s) or portions of
records, plus 16 percent.
(Note. Charge for document reviews covers only the time spent reviewing
the document(s) at the initial administrative level to determine
applicability of a specific FOIA exemption to a particular record or
portion of a record. It does not cover any review incurred at the
administrative appeal level once the initial exemptions are applied.
However, records or portions of records withheld in full under an
exemption which is subsequently determined not to apply may be reviewed
again to determine the applicability of other exemptions not previously
considered. The cost for such a subsequent review may be properly
assessed).
(7) Other charges: Certifying that Where applicable, assess under
records are true copies; Sending provisions of Sec. Sec.
records by special methods such as 1.526(i) and (j) of this part,
express mail. otherwise actual direct cost of
service performed.
------------------------------------------------------------------------
(f) Waiving or reducing fees. (1) Fees for records and services
provided in response to a FOIA request will be waived or reduced when it
is determined by responsible Central Office officials or field station
heads or their
[[Page 65]]
designee that furnishing the document(s) is in the public interest
because it is likely to contribute significantly to public understanding
of the operations or activities of the government and is not primarily
in the commercial interest of the requester.
(2) The following factors will be considered in sequence in
determining whether disclosure of information is in the public interest
because it is likely to contribute significantly to the public
understanding of the operations or activities of the government:
(i) The subject of the request: Whether the subject of the requested
records concerns the operations or activities of the government;
(ii) The informative value of the information to be disclosed:
Whether the disclosure is likely to contribute to an understanding of
government operations or activities;
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure: Whether disclosure of the
requested information will contribute to public understanding; and
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute significantly to public
understanding of government operations or activities.
(3) The following factors will be considered in sequence in
determining whether disclosure of information is primarily in the
commercial interest of the requester:
(i) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(ii) The primary interest in disclosure: Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is primarily in the commercial interest of the requester.
(4) An appeal from an adverse fee waiver or reduction determination
will be processed in the same manner as described in Sec. 1.557 of this
part.
(g) Other administrative considerations to improve assessment and
collection of fees--(1) Charging interest--notice and rate. The
Department of Veterans Affairs may charge interest to those requesters
who fail to timely pay fees assessed in accordance with these
regulations. Determination to charge interest will be made by the
responsible Central Office official or field facility head or designee.
Interest will be assessed on the unpaid bill beginning on the 31st day
following the day on which the original building was sent. Interest will
be at the rate prescribed in section 3717 of title 31 U.S.C., and will
accrue from the date of the billing. Accounting procedures ensure that a
requester who has remitted the full amount within the time period is
properly credited with the payment. The fact that the fee has been
received by VA, even if not processed, will suffice to stay the accrual
of interest.
(2) Charges for unsuccessful search. When it is determined by the
responsible Central Office official or field facility head or designee,
charges for searching may be assessed, even if records are not located
to satisfy a request or if records located are determined to be exempt
from disclosure. If it is determined that search charges are likely to
exceed $25, the requester will be notified of the estimated amount of
fees, unless the requester has indicated in advance a willingness to pay
fees as high as those anticipated. Such notice will offer the requester
the opportunity to confer with agency personnel with the object of
reformulating the request to meet his or her needs at a lower cost.
(3) Aggregating requests. When the responsible Central Office
official or field facility head or designee reasonably believes that a
requester or, on rare occasions, a group of requesters acting in
concert, is attempting to break a request down into a series of requests
for the purpose of evading the assessment of fees, the responsible
Central Office official, or field facility head or designee may
aggregate (combine) any such requests and charge accordingly. One
element to consider in determining whether a belief would be reasonable
is the time period in which the requests occurred. For example, it is
reasonable to presume that multiple requests within a 30-day time period
[[Page 66]]
that seek portion(s) of the same document(s) is an attempt to avoid
payment of charges. For requests made over a longer period, however,
such presumption becomes harder to sustain. In each case, there must be
a solid basis for determining that aggregation is warranted. Caution
will be exercised before aggregating requests from more than one
requester. There must be a concrete basis on which to conclude that the
requesters are acting in concert and are acting specifically to avoid
payment. In no case will multiple requests on unrelated subjects from
one requester be aggregated.
(4) Advance payments. The Department of Veterans Affairs may not
require a requester to make an advance payment, i.e., payment before
work is commenced or continued on a request, unless:
(i) The allowable charges that a requester may be required to pay
are likely to exceed $250. Then, the Department of Veterans Affairs
should either notify the requester of the likely cost and obtain
satisfactory assurance of full payment, or require an advance payment of
an amount up to the full estimated charges in the case of requesters
with no history of payment; or
(ii) A requester has previously failed to pay a fee charged in a
timely fashion (i.e., within 30 days of the date of the billing). Then,
the Department of Veterans Affairs may require the requester to pay the
full amount owed, plus any applicable interest as provided in paragraph
(g)(1) of this section, or to demonstrate that he or she has, in fact,
paid the fee, and to make an advance payment of the estimated fee before
the Department begins to process a new request or a pending request from
that requester.
(iii) If a requester is required to make advance payments, as
described in this section, the time limits prescribed in Sec. 1.553a of
this part, for responding to initial requests and appeals from initial
denials, will begin only after the Department has received the advance
fee payments.
(5) Debt collection. In the event of non-payment of billed charges
for disclosure of records, the procedures authorized by the Debt
Collection Act of 1982 (Pub. L. 97-365) may be used. This may include
disclosure to consumer reporting agencies and use of collection
agencies.
(Authority: 5 U.S.C. 552(a)(4)(A))
[53 FR 10377, Mar. 31, 1988]
Sec. 1.556 Requests for other reasonably described records.
Each administration, staff office, and field facility head will
designate an employee(s) who will be responsible for initial action on
(granting or denying) requests to inspect or obtain information from or
copies of records under their jurisdiction and within the purview of
Sec. 1.553. This responsibility includes maintaining a uniform listing
of such requests. Data logged will consist of: Name and address of
requester; date of receipt of request; brief description of request;
action taken on request, granted or denied; citation of the specific
section when request is denied; and date of reply to the requester. In
the field a denial of any such request may be made only by the Director
or the designated employee and in Central Office only by the
administration or staff office head or designee. The letter notifying
the requester of the denial will be signed by the official making the
denial decision. Any legal question arising in a field station
concerning the release of information will be referred to the
appropriate Regional Counsel for disposition as contemplated by Sec.
13.401* of this chapter. In Central Office such legal questions will be
referred to the General Counsel. Any administrative question will be
referred through administrative channels to the appropriate
administration or staff office head. All denials or proposed denials at
the Central Office level will be coordinated with the Director,
Information Service as well as the General Counsel.
---------------------------------------------------------------------------
*Editorial Note: At 42 FR 41410, Aug. 17, 1977, Sec. 13.401 was
removed.
[40 FR 12658, Mar. 20, 1975]
Sec. 1.557 Administrative review.
(a) Upon denial of a request, the responsible Department of Veterans
Affairs official or designated employee will inform the requester in
writing of
[[Page 67]]
the denial, cite the specific exemption in Sec. 1.554 upon which the
denial is based, set forth the names and titles or positions of each
person responsible for the denial of such request, and advise that the
denial may be appealed to the General Counsel.
(b) The final agency decision in such appeals will be made by the
General Counsel or the Deputy General Counsel.
[40 FR 12658, Mar. 20, 1975, as amended at 55 FR 21546, May 25, 1990]
Sec. Sec. 1.558-1.559 [Reserved]
Safeguarding Personal Information in Department of Veterans Affairs
Records
Note: Sections 1.575 through 1.584 concern the safeguarding of
individual privacy from the misuse of information from files, records,
reports, and other papers and documents in Department of Veterans
Affairs custody. As to the release of information from Department of
Veterans Affairs claimant records see Sec. 1.500 series. As to the
release of information from Department of Veterans Affairs records other
than claimant records see Sec. 1.550 series. Section 1.575 series
implement the provisions of Pub. L. 93-579, December 31, 1974, adding a
section 552a to title 5 U.S.C. providing that individuals be granted
access to records concerning them which are maintained by Federal
agencies, and for other purposes.
Source: 40 FR 33944, Aug. 12, 1975, unless otherwise noted.
Sec. 1.575 Social security numbers in veterans' benefits matters.
(a) Except as provided in paragraph (b) of this section, no one will
be denied any right, benefit, or privilege provided by law because of
refusal to disclose to the Department of Veterans Affairs a social
security number.
(b) VA shall require mandatory disclosure of a claimant's or
beneficiary's social security number (including the social security
number of a dependent of a claimant or beneficiary) on necessary forms
as prescribed by the Secretary as a condition precedent to receipt or
continuation of receipt of compensation or pension payable under the
provisions of chapters 11, 13 and 15 of title 38, United States Code,
provided, however, that a claimant shall not be required to furnish VA
with a social security number for any person to whom a social security
number has not been assigned. VA may also require mandatory disclosure
of an applicant's social security number as a condition for receiving
loan guaranty benefits and a social security number or other taxpayer
identification number from existing direct and vendee loan borrowers and
as a condition precedent to receipt of a VA-guaranteed loan, direct loan
or vendee loan, under chapter 37 of title 38, United States Code. (Pub.
L. 97-365, sec. 4)
(c) A person requested by VA to disclose a social security number
shall be told, as prescribed by Sec. 1.578(c), whether disclosure is
voluntary or mandatory. The person shall also be told that VA is
requesting the social security number under the authority of title 38
U.S.C., or in the case of existing direct or vendee loan borrowers,
under the authority of 26 U.S.C. 6109(a) in conjunction with sections
145 and 148 of Pub. L. 98-369, or in the case of loan applicants, under
the authority of section 4 of Pub. L. 97-365. The person shall also be
told that it will be used in the administration of veterans' benefits in
the identification of veterans or persons claiming or receiving VA
benefits and their records, that it may be used in making reports to the
Internal Revenue Service where required by law, and to determine whether
a loan guaranty applicant has been identified as a delinquent taxpayer
by the Internal Revenue Service, and that such taxpayers may have their
loan applications rejected, and that it may be used to verify social
security benefit entitlement (including amounts payable) with the Social
Security Administration and, for other purposes where authorized by both
title 38 U.S.C., and the Privacy Act of 1974, (Pub. L. 93-579), or,
where required by another statute. (Pub. L. 97-365, sec. 4)
(Authority: 38 U.S.C. 5101)
[44 FR 22068, Apr. 13, 1979, as amended at 51 FR 21750, June 16, 1986;
56 FR 25044, June 3, 1991]
Sec. 1.576 General policies, conditions of disclosure, accounting of
certain disclosures, and definitions.
(a) The Department of Veterans Affairs will safeguard an individual
[[Page 68]]
against an invasion of personal privacy. Except as otherwise provided by
law or regulation its officials and employees will:
(1) Permit an individual to determine what records pertaining to him
or her will be collected, maintained, used, or disseminated by the
Department of Veterans Affairs.
(2) Permit an individual to prevent records pertaining to him or
her, obtained by the Department of Veterans Affairs for a particular
purpose, from being used or made available for another purpose without
his or her consent.
(3) Permit an individual to gain access to information pertaining to
him or her in Department of Veterans Affairs records, to have a copy
made of all or any portion thereof, and to correct or amend such
records.
(4) Collect, maintain, use, or disseminate any record of
identifiable personal information in a manner that assures that such
action is for a necessary and lawful purpose, that the information is
correct and accurate for its intended use, and that adequate safeguards
are provided to prevent misuse of such information.
(5) Permit exemptions from records requirements provided in 5 U.S.C.
552a only where an important public policy need for such exemption has
been determined pursuant to specific statutory authority.
(b) The Department of Veterans Affairs will not disclose any record
contained in a system of records by any means of communication to any
person or any other agency except by written request of or prior written
consent of the individual to whom the record pertains unless such
disclosure is:
(1) To those officers and employees of the agency which maintains
the record and who have a need for the record in the performance of
their duties;
(2) Required under 5 U.S.C. 552;
(3) For a routine use of the record compatible with the purpose for
which it was collected;
(4) To the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity pursuant to title 13 U.S.C.;
(5) To a recipient who has provided the Department of Veterans
Affairs with advance adequate written assurance that the record will be
used solely as a statistical research or reporting record, and the
record is to be transferred in a form that is not individually
identifiable;
(6) To the National Archives of the United States as a record which
has sufficient historical or other value to warrant its continued
preservation by the U.S. Government, or for evaluation by the
Administrator of General Services or designee to determine whether the
record has such value;
(7) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, and if the head of the agency or instrumentality has made a
written request to the Department of Veterans Affairs specifying the
particular portion desired and the law enforcement activity for which
the record is sought;
(8) To a person pursuant to a showing of compelling circumstances
affecting the health or safety of an individual if upon such disclosure
notification is transmitted to the last known address of such
individual;
(9) To either House of Congress, or, to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee of Congress or subcommittee of any such joint committee;
(10) To the Comptroller General, or any authorized representatives,
in the course of the performance of the duties of the General Accounting
Office; or
(11) Pursuant to the order of a court of competent jurisdiction.
(c) With respect to each system of records (i.e., a group of records
from which information is retrieved by the name of the individual or by
some identifying number, symbol, or other identifying particular
assigned to the individual) under Department of Veterans Affairs
control, the Department of Veterans Affairs will (except for disclosures
made under paragraph (b)(1) or (2) of this section) keep an accurate
accounting as follows:
(1) For each disclosure of a record to any person or to another
agency made under paragraph (b) of this section,
[[Page 69]]
maintain information consisting of the date, nature, and purpose of each
disclosure, and the name and address of the person or agency to whom the
disclosure is made;
(2) Retain the accounting made under paragraph (c)(1) of this
section for at least 5 years or the life of the record, whichever is
longer, after the disclosure for which the accounting is made;
(3) Except for disclosures made under paragraph (b)(7) of this
section, make the accounting under paragraph (c)(1) of this section
available to the individual named in the record at his or her request;
and
(4) Inform any person or other agency about any correction or
notation of dispute made by the agency in accordance with Sec. 1.579 of
any record that has been disclosed to the person or agency if an
accounting of the disclosure was made.
(d) For the purposes of Sec. Sec. 1.575 through 1.584, the parent
of any minor, or the legal guardian of any individual who has been
declared incompetent due to physical or mental incapacity or age by a
court of competent jurisdiction, may act on behalf of the individual.
(e) Section 552a(i), title 5 U.S.C., provides that:
(1) Any officer or employee of the Department of Veterans Affairs,
who by virtue of his or her employment or official position, has
possession of, or access to, Department of Veterans Affairs records
which contain individually identifiable information the disclosure of
which is prohibited by 5 U.S.C. 552a or by Sec. 1.575 series
established thereunder, and who knowing that disclosure of the specific
material is so prohibited, willfully discloses the material in any
manner to any person or agency not entitled to receive it, shall be
guilty of a misdemeanor and fined not more than $5,000.
(2) Any officer or employee of the Department of Veterans Affairs
who willfully maintains a system of records without meeting the notice
requirements of 5 U.S.C. 552a(e)(4) (see Sec. 1.578(d)) shall be guilty
of a misdemeanor and fined not more than $5,000.
(3) Any person who knowingly and willfully requests or obtains any
record concerning an individual from the Department of Veterans Affairs
under false pretenses shall be guilty of a misdemeanor and fined not
more than $5,000.
(f) For purposes of Sec. 1.575 series the following definitions
apply:
(1) The term agency includes any executive department, military
department, Government corporation, Government controlled corporation,
or other establishment in the executive branch of the government
(including the Executive Office of the President), or any independent
regulatory agency.
(2) The term individual means a citizen of the United States or an
alien lawfully admitted for permanent residence.
(3) The term maintain includes maintain, collect, use, or
disseminate.
(4) The term record means any item, collection, or grouping of
information about an individual that is maintained by an agency,
including, but not limited to, his or her education, financial
transactions, medical history, and criminal or employment history and
that contains his or her name, or the identifying number, symbol, or
other identifying particular assigned to the individual, such as a
finger or voice print or a photograph.
(5) The term system of records means a group of any records under
the control of any agency from which information is retrieved by the
name of the individual or by some identifying number, symbol, or other
identifying particular assigned to the individual.
(6) The term statistical record means a record in a system of
records maintained for statistical research or reporting purposes only
and not used in whole or in part in making any determination about an
identifiable individual except as provided by section 8 of title 13
U.S.C.
(7) The term routine use means, with respect to the disclosure of a
record, the use of such record for a purpose which is compatible with
the purpose for which it was collected.
(g) When the Department of Veterans Affairs provides by a contract
for the operation by or on behalf of the Department of Veterans Affairs
of a system of records to accomplish a Department of Veterans Affairs
function, the Department of Veterans Affairs will,
[[Page 70]]
consistent with its authority, cause the requirements of 5 U.S.C. 552a
(as required by subsection (m)) and those of the Sec. 1.575 series to
be applied to such system. For the purposes of 5 U.S.C. 552a(i) and
Sec. 1.576(e) any such contractor and any employee of such contractor,
if such contract is agreed to on or after September 27, 1975, will be
considered to be an employee of the Department of Veterans Affairs.
(h) The Department of Veterans Affairs will, for the purposes of 5
U.S.C. 552a, consider that it maintains any agency record which it
deposits with the Administrator of General Services for storage,
processing, and servicing in accordance with section 3103 of title 44
U.S.C. Any such record will be considered subject to the provisions of
Sec. 1.575 series implementing 5 U.S.C. 552a and any other applicable
Department of Veterans Affairs regulations. The Administrator of General
Services is not authorized to disclose such a record except to the
Department of Veterans Affairs, or under regulations established by the
Department of Veterans Affairs which are not inconsistent with 5 U.S.C.
552a.
(i) The Department of Veterans Affairs will, for the purposes of 5
U.S.C. 552a, consider that a record is maintained by the National
Archives of the United States if it pertains to an identifiable
individual and was transferred to the National Archives prior to
September 27, 1975, as a record which has sufficient historical or other
value to warrant its continued preservation by the United States
Government. Such records are not subject to the provisions of 5 U.S.C.
552a except that a statement generally describing such records (modeled
after the requirements relating to records subject to subsections
(e)(4)(A) through (G) of 5 U.S.C. 552a) will be published in the Federal
Register.
(j) The Department of Veterans Affairs will also, for the purposes
of 5 U.S.C. 552a, consider that a record is maintained by the National
Archives of the United States if it pertains to an identifiable
individual and is transferred to the National Archives on or after
September 27, 1975, as a record which has sufficient historical or other
value to warrant its continued preservation by the United States
Government. Such records are exempt from the requirements of 5 U.S.C.
552a except subsections (e)(4) (A) through (G) and (e)(9) thereof.
(Authority: 38 U.S.C. 501)
[40 FR 33944, Aug. 12, 1975, as amended at 40 FR 58644, Dec. 18, 1975;
47 FR 16323, Apr. 16, 1982]
Sec. 1.577 Access to records.
(a) Except as otherwise provided by law or regulation any individual
upon request may gain access to his or her record or to any information
pertaining to him or her which is contained in any system of records
maintained by the Department of Veterans Affairs. The individual will be
permitted, and upon his or her request, a person of his or her own
choosing permitted to accompany him or her, to review the record and
have a copy made of all or any portion thereof in a form comprehensible
to him or her. The Department of Veterans Affairs will require, however,
a written statement from the individual authorizing discussion of that
individual's record in the accompanying person's presence.
(b) Any individual will be notified, upon request, if any Department
of Veterans Affairs system of records named contains a record pertaining
to him or her. Such request must be in writing, over the signature of
the requester. The request must contain a reasonable description of the
Department of Veterans Affairs system or systems of records involved, as
described at least annually by notice published in the Federal Register
describing the existence and character of the Department of Veterans
Affairs system or systems of records pursuant to Sec. 1.578(d). The
request should be made to the office concerned (having jurisdiction over
the system or systems of records involved) or, if not known, to the
Director or Department of Veterans Affairs Officer in the nearest
Department of Veterans Affairs regional office, or to the Department of
Veterans Affairs Central Office, 810 Vermont Avenue, NW., Washington, DC
20420. Personal contact should normally be made during the regular duty
hours of the office concerned, which are 8:00 a.m. to 4:30 p.m., Monday
[[Page 71]]
through Friday for Department of Veterans Affairs Central Office and
most field facilities. Identification of the individual requesting the
information will be required and will consist of the requester's name,
signature, address, and claim, insurance or other identifying file
number, if any, as a minimum. Additional identifying data or documents
may be required in specified categories as determined by operating
requirements and established and publicized by the promulgation of
Department of Veterans Affairs regulations. (5 U.S.C. 552a(f)(1))
(c) The department or staff office having jurisdiction over the
records involved will establish appropriate disclosure procedures and
will notify the individual requesting disclosure of his or her record or
information pertaining to him or her of the time, place and conditions
under which the Department of Veterans Affairs will comply to the extent
permitted by law and Department of Veterans Affairs regulation. (5
U.S.C. 552a(f)(2))
(d) Access to sensitive material in records, including medical and
psychological records, is subject to the following special procedures.
When an individual requests access to his or her records, the Department
of Veterans Affairs official responsible for administering those records
will review them and identify the presence of any sensitive records.
Sensitive records are those that contain information which may have a
serious adverse effect on the individual's mental or physical health if
they are disclosed to him or her. If, on review of the records, the
Department of Veterans Affairs official concludes that there are
sensitive records involved, the official will refer the records to a
Department of Veterans Affairs physician, other than a rating board
physician, for further review. If the physician who reviews the records
believes that disclosure of the information directly to the individual
could have an adverse effect on the physical or mental health of the
individual, the responsible Department of Veterans Affairs official will
then advise the requesting individual: (1) That the Department of
Veterans Affairs will disclose the sensitive records to a physician or
other professional person selected by the requesting individual for such
redisclosure as the professional person may believe is indicated, and
(2) in indicated cases, that the Department of Veterans Affairs will
arrange for the individual to report to a Department of Veterans Affairs
facility for a discussion of his or her records with a designated
Department of Veterans Affairs physician and for an explanation of what
is included in the records. Following such discussion, the records
should be disclosed to the individual; however, in those extraordinary
cases where a careful and conscientious explanation of the information
considered harmful in the record has been made by a Department of
Veterans Affairs physician and where it is still the physician's
professional medical opinion that physical access to the information
could be physically or mentally harmful to the patient, physical access
may be denied. Such a denial situation should be an unusual, very
infrequent occurrence. When denial of a request for direct physical
access is made, the responsible Department of Veterans Affairs official
will: (1) Promptly advise the individual making the request of the
denial; (2) state the reasons for the denial of the request (e.g., 5
U.S.C. 552a(f)(3), 38 U.S.C. 5701(b)(1)); and (3) advise the requester
that the denial may be appealed to the General Counsel and of the
procedure for such an appeal.(Authority: 5 U.S.C. 552a(f)(3))
(e) Nothing in 5 U.S.C. 552a, however, allows an individual access
to any information compiled in reasonable anticipation of civil action
or proceeding. (5 U.S.C. 552a(d)(5))
(f) Fees to be charged, if any, to any individual for making copies
of his or her record shall not include the cost of any search for and
review of the record, and will be as follows:
------------------------------------------------------------------------
Activity Fees
------------------------------------------------------------------------
(1) Duplication of documents by any $0.15 per page after first 100 one-
type of reproduction process to sided pages.
produce plain one-sided paper
copies of a standard size (8\1/
2\ x 11; 8\1/
2\ x 14;
11x14).
[[Page 72]]
(2) Duplication of non-paper Actual direct cost to the Agency as
records, such as microforms, defined in Sec. 1.555(a)(2) of
audiovisual materials (motion this part to the extent that it
pictures, slides, laser optical pertains to the cost of
disks, video tapes, audio tapes, duplication.
etc.), computer tapes and disks,
diskettes for personal computers,
and any other automated media
output.
(3) Duplication of document by any Actual direct cost to the Agency as
type of reproduction process not defined in Sec. 1.555(a)(2) of
covered by paragraphs (f)(1) or this part to the extent that it
(2) of this section to produce a pertains to the cost of
copy in a form reasonably usable duplication.
by the requester.
------------------------------------------------------------------------
Note. Fees for any activities other than duplication by any type of
reproducing process will be assessed under the provisions of Sec.
1.526(i) or (j) of this part of any other applicable law.)
(g) When VA benefit records, which are retrievable by name or
individual identifier of a VA beneficiary or applicant for VA benefits,
are requested by the individual to whom the record pertains, the
duplication fee for one complete set of such records will be waived.
(Authority: 5 U.S.C. 552a(f)(5)) (38 U.S.C. 501)
[40 FR 33944, Aug. 12, 1975, as amended at 47 FR 16323, Apr. 16, 1982;
53 FR 10380, Mar. 31, 1988; 55 FR 21546, May 25, 1990]
Sec. 1.578 [Reserved]
Sec. 1.579 Amendment of records.
(a) Any individual may request amendment of any Department of
Veterans Affairs record pertaining to him or her. Not later than 10 days
(excluding Saturdays, Sundays, and legal public holidays) after the date
or receipt of such request, the Department of Veterans Affairs will
acknowledge in writing such receipt. The Department of Veterans Affairs
will complete the review to amend or correct a record as soon as
reasonably possible, normally within 30 days from the receipt of the
request (excluding Saturdays, Sundays, and legal public holidays) unless
unusual circumstances preclude completing action within that time. The
Department of Veterans Affairs will promptly either:
(1) Correct any part thereof which the individual believes is not
accurate, relevant, timely or complete; or
(2) Inform the individual of the Department of Veterans Affairs
refusal to amend the record in accordance with his or her request, the
reason for the refusal, the procedures by which the individual may
request a review of that refusal by the Secretary or designee, and the
name and address of such official.
(Authority: 5 U.S.C. 552a(d)(2))
(b) The administration or staff office having jurisdiction over the
records involved will establish procedures for reviewing a request from
an individual concerning the amendment of any record or information
pertaining to the individual, for making a determination on the request,
for an appeal within the Department of Veterans Affairs of an initial
adverse Department of Veterans Affairs determination, and for whatever
additional means may be necessary for each individual to be able to
exercise fully, his or her right under 5 U.S.C. 552a.
(1) Headquarters officials designated as responsible for the
amendment of records or information located in Central Office and under
their jurisdiction include, but are not limited to: Secretary; Deputy
Secretary, as well as other appropriate individuals responsible for the
conduct of business within the various Department of Veterans Affairs
administrations and staff offices. These officials will determine and
advise the requester of the identifying information required to relate
the request to the appropriate record, evaluate and grant or deny
requests to amend, review initial adverse determinations upon request,
and assist requesters desiring to amend or appeal initial adverse
determinations or learn further of the provisions for judicial review.
(2) The following field officials are designated as responsible for
the amendment of records or information located in facilities under
their jurisdiction, as appropriate: The Director of
[[Page 73]]
each Center, Domiciliary, Medical Center, Outpatient Clinic, Regional
Office, Supply Depot, and Regional Counsels. These officials will
function in the same manner at field facilities as that specified in the
preceding subparagraph for headquarters officials in Central Office.
(Authority: 5 U.S.C. 552a(f)(4))
(c) Any individual who disagrees with the Department of Veterans
Affairs refusal to amend his or her record may request a review of such
refusal. The Department of Veterans Affairs will complete such review
not later than 30 days (excluding Saturdays, Sundays, and legal public
holidays) from the date on which the individual request such review and
make a final determination unless, for good cause shown, the Secretary
extends such 30-day period. If, after review, the Secretary or designee
also refuses to amend the record in accordance with the request the
individual will be advised of the right to file with the Department of
Veterans Affairs a concise statement setting forth the reasons for his
or her disagreement with the Department of Veterans Affairs refusal and
also advise of the provisions for judicial review of the reviewing
official's determination. (5 U.S.C. 552a(g)(1)(A))
(d) In any disclosure, containing information about which the
individual has filed a statement of disagreement, occurring after the
filing of the statement under paragraph (c) of this section, the
Department of Veterans Affairs will clearly note any part of the record
which is disputed and provide copies of the statement (and, if the
Department of Veterans Affairs deems it appropriate, copies of a concise
statement of the Department of Veterans Affairs reasons for not making
the amendments requested) to persons or other agencies to whom the
disputed record has been disclosed. (5 U.S.C. 552a(d)(4)) (38 U.S.C.
501)
[47 FR 16324, Apr. 16, 1982]
Sec. 1.580 Administrative review.
(a) Upon denial or a request under 38 CFR 1.577 or 1.579, the
responsible Department of Veterans Affairs official or designated
employee will inform the requester in writing of the denial, cite the
reason or reasons and the Department of Veterans Affairs regulations
upon which the denial is based, and advise that the denial may be
appealed to the General Counsel.
(b) The final agency decision in such appeals will be made by the
General counsel or the Deputy General Counsel.
(Authority: 38 U.S.C. 501)
[40 FR 33944, Aug. 12, 1975, as amended at 47 FR 16324, Apr. 16, 1982;
55 FR 21546, May 25, 1990]
Sec. 1.581 [Reserved]
Sec. 1.582 Exemptions.
(a) Certain systems of records maintained by the Department of
Veterans Affairs are exempted from provisions of the Privacy Act in
accordance with exemptions (j) and (k) of 5 U.S.C. 552a.
(b) Exemption of Inspector General Systems of Records. The
Department of Veterans Affairs provides limited access to Inspector
General Systems of Records as indicated.
(1) The following systems of records are exempted pursuant to the
provisions of 5 U.S.C. 552a(j)(2) from subsections (c)(3) and (4), (d),
(e)(1), (2) and (3), (e)(4) (G), (H) and (I), (e)(5) and (8), (f) and
(g) of 5 U.S.C. 552a; in addition, the following systems of records are
exempted pursuant to the provisions of 5 U.S.C. 552a(k)(2) from
subsections (c)(3), (d), (e)(1), (e)(4) (G), (H), and (I), and (f) of 5
U.S.C. 552a:
(i) Investigation Reports of Persons Allegedly Involved in
Irregularities Concerning VA and Federal Laws, Regulations, Programs,
etc.--VA (11 VA51); and
(ii) Inspector General Complaint Center Records--VA (66VA53).
(2) These exemptions apply to the extent that information in those
systems is subject to exemptions pursuant to 5 U.S.C. 552a (j)(2) and
(k)(2).
(3) For the reasons set forth, the systems of records listed under
paragraph (b)(1) of this section are exempted under sections 552a (j)(2)
and (k)(2) from the following provisions of 5 U.S.C. 552a:
(i) 5 U.S.C. 552a(c)(3) requires that upon request, an agency must
give an individual named in a record an accounting which reflects the
disclosure
[[Page 74]]
of the record to other persons or agencies. This accounting must state
the date, nature and purpose of each disclosure of the record and the
name and address of the recipient. The application of this provision
would alert subjects to the existence of the investigation and identify
that such persons are subject of that investigation. Since release of
such information to subjects would provide them with significant
information concerning the nature of the investigation, it could result
in the altering or destruction of derivative evidence which is obtained
from third parties, improper influencing of witnesses, and other
activities that could impede or compromise the investigation.
(ii) 5 U.S.C. 552a(c)(4), (d), (e)(4) (G) and (H), (f) and (g)
relate to an individual's right to be notified of the existence of
records pertaining to such individual; requirements for identifying an
individual who requests access to records; the agency procedures
relating to access to records and the amendment of information contained
in such records; and the civil remedies available to the individual in
the event of adverse determinations by an agency concerning access to or
amendment of information contained in record systems. This system is
exempt from the foregoing provisions for the following reasons: To
notify an individual at the individual's request of the existence of
records in an investigative file pertaining to such individual or to
grant access to an investigative file could interfere with investigative
and enforcement proceedings, threaten the safety of individuals who have
cooperated with authorities, constitute an unwarranted invasion of
personal privacy of others, disclose the identity of confidential
sources, reveal confidential information supplied by these sources, and
disclose investigative techniques and procedures.
(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the
categories of sources of records in each system of records. The
application of this provision could disclose investigative techniques
and procedures and cause sources to refrain from giving such information
because of fear of reprisal, or fear of breach of promises of anonymity
and confidentiality. This could compromise the ability to conduct
investigations and to identify, detect and apprehend violators. Even
though the agency has claimed an exemption from this particular
requirement, it still plans to generally identify the categories of
records and the sources for these records in this system. However, for
the reasons stated in paragraph (b)(3)(ii) of this section, this
exemption is still being cited in the event an individual wants to know
a specific source of information.
(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual that is relevant and
necessary to accomplish a purpose of the agency required by statute or
Executive order. These systems of records are exempt from the foregoing
provisions because:
(A) It is not possible to detect the relevance or necessity of
specific information in the early stages of a criminal or other
investigation.
(B) Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary may ultimately be determined to be
unnecessary. It is only after the information is evaluated that the
relevance and necessity of such information can be established.
(C) In any investigation the Inspector General may obtain
information concerning the violations of laws other than those within
the scope of his/her jurisdiction. In the interest of effective law
enforcement, the Inspector General should retain this information as it
may aid in establishing patterns of criminal activity and provide leads
for those law enforcement agencies charged with enforcing other segments
of civil or criminal law.
(v) 5 U.S.C. 552a(e)(2) requires an agency to collect information to
the greatest extent practicable directly from the subject individual
when the information may result in adverse determinations about an
individual's rights, benefits, and privileges under Federal programs.
The application of this provision would impair investigations of illegal
acts, violations of the rules of conduct, merit system and any other
misconduct for the following reasons:
[[Page 75]]
(A) In order to successfully verify a complaint, most information
about a complainant or an individual under investigation must be
obtained from third parties such as witnesses and informers. It is not
feasible to rely upon the subject of the investigation as a source for
information regarding his/her activities because of the subject's rights
against self-incrimination and because of the inherent unreliability of
the suspect's statements. Similarly, it is not always feasible to rely
upon the complainant as a source of information regarding his/her
involvement in an investigation.
(B) The subject of an investigation will be alerted to the existence
of an investigation if an attempt is made to obtain information from the
subject. This would afford the individual the opportunity to conceal any
criminal activities to avoid apprehension.
(vi) 5 U.S.C. 552a(e)(3) requires that an agency must inform the
subject of an investigation who is asked to supply information of:
(A) The authority under which the information is sought and whether
disclosure of the information is mandatory or voluntary;
(B) The purposes for which the information is intended to be used;
(C) The routine uses which may be made of the information; and
(D) The effects on the subject, if any, of not providing the
requested information. The reasons for exempting this system of records
from the foregoing provision are as follows:
(1) The disclosure to the subject of the purposes of the
investigation as stated in paragraph (b)(3)(vi)(B) of this paragraph
would provide the subject with substantial information relating to the
nature of the investigation and could impede or compromise the
investigation.
(2) If the complainant or the subject were informed of the
information required by this provision, it could seriously interfere
with undercover activities requiring disclosure of the authority under
which the information is being requested. This could conceivably
jeopardize undercover agents' identities and impair their safety, as
well as impair the successful conclusion of the investigation.
(3) Individuals may be contacted during preliminary information
gathering in investigations before any individual is identified as the
subject of an investigation. Informing the individual of the matters
required by this provision would hinder or adversely affect any present
or subsequent investigations.
(vii) 5 U.S.C. 552a(e)(5) requires that records be maintained with
such accuracy, relevance, timeliness, and completeness as is reasonably
necessary to assure fairness to the individual in making any
determination about an individual. Since the law defines maintain to
include the collection of information, complying with this provision
would prevent the collection of any data not shown to be accurate,
relevant, timely, and complete at the moment of its collection. In
gathering information during the course of an investigation it is not
always possible to determine this prior to collection of the
information. Facts are first gathered and then placed into a logical
order which objectively proves or disproves criminal behavior on the
part of the suspect. Material which may seem unrelated, irrelevant,
incomplete, untimely, etc., may take on added meaning as an
investigation progresses. The restrictions in this provision could
interfere with the preparation of a complete investigative report.
(viii) 5 U.S.C. 552a(e)(8) requires an agency to make reasonable
efforts to serve notice on an individual when any record on such
individual is made available to any person under compulsory legal
process when such process becomes a matter of public record. The notice
requirement of this provision could prematurely reveal an ongoing
criminal investigation to the subject of the investigation.
(c) Exemption of Loan Guaranty Service, Veterans Benefits
Administration, Systems of Records. The Department of Veterans Affairs
provides limited access to Loan Guaranty Service, Veterans Benefits
Administration, systems of records as indicated:
(1) The following systems of records are exempted pursuant to the
provisions of 5 U.S.C. 552a(k)(2) from subsections (c)(3), (d), (e)(1)
and (e)(4) (G), (H) and (I) and (f):
[[Page 76]]
(i) Loan Guaranty Fee Personnel and Program Participant Records--VA
(17VA26); and
(ii) Loan Guaranty Home Condominium and Mobile Home Loan Applicant
Records and Paraplegic Grant Application Records--VA (55VA26).
(2) These exemptions apply to the extent that information in these
systems is subject to exemption pursuant to 5 U.S.C. 552a(k)(2).
(3) For the reasons set forth, the systems of records listed under
paragraph (c)(1) of this section are exempted under 5 U.S.C. 552a(k)(2)
from the following provisions of 5 U.S.C. 552a:
(i) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request. These accountings must state the date, nature and purpose
of each disclosure of the record and the name and address of the
recipient. The application of this provision would alert subjects of an
investigation to the existence of the investigation and that such
persons are subjects of that investigation. Since release of such
information to subjects of an investigation would provide the subjects
with significant information concerning the nature of the investigation,
it could result in the altering or destruction of documentary evidence,
improper influencing of witnesses and other activities that could impede
or compromise the investigation.
(ii) 5 U.S.C. 552a(d), (e)(4) (G) and (H) and (f) relate to an
individual's right to be notified of the existence of records pertaining
to such individual; requirements for identifying an individual who
requests access to records; and the agency procedures relating to access
to records and the contest of information contained in such records.
This system is exempt from the foregoing provisions for the following
reasons: To notify an individual at the individual's request of the
existence of records in an investigative file pertaining to such
individual or to grant access to an investigative file could interfere
with investigative and enforcement proceedings; constitute an
unwarranted invasion of the personal privacy of others; disclose the
identity of confidential sources and reveal confidential information
supplied by these sources and disclose investigative techniques and
procedures.
(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the
categories of sources of records in each system of records. The
application of this provision could disclose investigative techniques
and procedures and cause sources to refrain from giving such information
because of fear of reprisal, or fear of breach of promises of anonymity
and confidentiality. This would compromise the ability to conduct
investigations. Even though the agency has claimed an exemption from
this particular requirement, it still plans to generally identify the
categories of records and the sources for these records in this system.
However, for the reasons stated above, this exemption is still being
cited in the event an individual wanted to know a specific source of
information.
(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual that is relevant and
necessary to accomplish a purpose of the agency required by statute or
Executive order. This system of records is exempt from the foregoing
provision because:
(A) It is not possible to detect relevance or necessity of specific
information in the early stages of an investigation.
(B) Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary when collected may ultimately be
determined to be unnecessary. It is only after the information is
evaluated that the relevance and necessity of such information can be
established.
(C) In interviewing persons or obtaining other forms of evidence
during an investigation, information may be supplied to the investigator
which relates to matters incidental to the main purpose of the
investigation but which is appropriate in a thorough investigation.
Oftentimes, such information cannot readily be segregated.
(4) The following system of records is exempt pursuant to the
provisions of 5 U.S.C. 552a(k)(5) from subsections (c)(3), (d), (e)(1),
(e)(4) (G), (H) and (I) and (f): Loan Guaranty Fee Personnel
[[Page 77]]
and Program Participant Records--VA (17 VA 26).
(5) This exemption applies to the extent that information in this
system is subject to exemption pursuant to 5 U.S.C. 552a(k)(5).
(6) For the reasons set forth, the system of records listed in
paragraph (c)(4) of this section is exempt under 5 U.S.C. 552a(k)(5)
from the following provisions of 5 U.S.C. 552a:
(i) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of
disclosures of records available to individuals named in the records at
their request. These accountings must state the date, nature and purpose
of each disclosure of the record and the name and address of the
recipient. The application of this provision would alert subjects of
background suitability investigations to the existence of the
investigation and reveal that such persons are subjects of that
investigation. Since release of such information to subjects of an
investigation would provide the subjects with significant information
concerning the nature of the investigation, it could result in revealing
the identity of a confidential source.
(ii) 5 U.S.C. 552a(d), (e)(4) (G) and (H) and (f) relate to an
individual's right to be notified of the existence of records pertaining
to such individual; requirements for identifying an individual who
requests access to records; and the agency procedures relating to access
to records and the contest of information contained in such records.
This system is exempt from the foregoing provisions for the following
reasons: To notify an individual at the individual's request of the
existence of records in an investigative file pertaining to such an
individual or to grant access to an investigative file would disclose
the identity of confidential sources and reveal confidential information
supplied by these sources.
(iii) 5 U.S.C. 552a(e)(4)(I) requires the publication of the
categories of sources of records in each system of records. The
application of this provision could disclose sufficient information to
disclose the identity of a confidential source and cause sources to
refrain from giving such information because of fear of reprisal, or
fear of breach of promises of anonymity and confidentiality. This would
compromise the ability to conduct background suitability investigations.
(iv) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its
records only such information about an individual that is relevant and
necessary to accomplish a purpose of the agency required by statute or
Executive order. This system of records is exempt from the foregoing
provision because:
(A) It is not possible to detect relevance and necessity of specific
information from a confidential source in the early stages of an
investigation.
(B) Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary when collected may ultimately be
determined to be unnecessary. It is only after the information is
evaluated that the relevance and necessity of such information can be
established regarding suitability for VA approval as a fee appraiser or
compliance inspector.
(C) In interviewing persons or obtaining other forms of evidence
during an investigation for suitability for VA approval, information may
be supplied to the investigator which relates to matters incidental to
the main purpose of the investigation but which is appropriate in a
thorough investigation. Oftentimes, such information cannot readily be
segregated and disclosure might jeopardize the identity of a
confidential source.
(d) Exemption of Police and Security Records. VA provides limited
access to one Security and Law Enforcement System of Records, Police and
Security Records--VA (103VA07B).
(1) The investigations records and reports contained in this System
of Records are exempted [pursuant to 5 U.S.C. 552a(j)(2) of the Privacy
Act of 1974] from Privacy Act subsections (c)(3) and (c)(4); (d); (e)(1)
through (e)(3), (e)(4)(G) through (e)(4)(I), (e)(5), and (e)(8); (f);
and (g); in addition, they are exempted [pursuant to 5 U.S.C. 552a(k)(2)
of the Privacy Act of 1974] from Privacy Act subsections (c)(3); (d);
(e)(1), (e)(4)(G) through (e)(4)(I); and (f).
(2) These records contained in the Police and Security Records--VA
[[Page 78]]
(103VA076B) are exempted for the following reasons:
(i) The application of Privacy Act subsection (c)(3) would alert
subjects to the existence of the investigation and reveal that they are
subjects of that investigation. Providing subjects with information
concerning the nature of the investigation could result in alteration or
destruction of evidence which is obtained from third parties, improper
influencing of witnesses, and other activities that could impede or
compromise the investigation.
(ii) The application of Privacy Act subsections (c)(4); (d);
(e)(4)(G) and (e)(4)(H); (f); and (g) could interfere with investigative
and enforcement proceedings, threaten the safety of individuals who have
cooperated with authorities, constitute an unwarranted invasion of
personal privacy of others, disclose the identity of confidential
sources, reveal confidential information supplied by these sources, and
disclose investigative techniques and procedures.
(iii) The application of Privacy Act subsection (e)(4)(I) could
disclose investigative techniques and procedures and cause sources to
refrain from giving such information because of fear of reprisal, or
fear of breach of promises of anonymity and confidentiality. This could
compromise the ability to conduct investigations and to identify, detect
and apprehend violators. Even though the agency has claimed an exemption
from this particular requirement, it still plans to generally identify
the categories of records and the sources of these records in this
system. However, for the reason stated in paragraph (d)(2)(ii) of this
section, this exemption is still being cited in the event an individual
wants to know a specific source of information.
(iv) These records contained in the Police and Security Records--VA
(103VA076B) are exempt from Privacy Act subsection (e)(1) because it is
not possible to detect the relevance or necessity of specific
information in the early stages of a criminal or other investigation.
Relevance and necessity are questions of judgment and timing. What
appears relevant and necessary may ultimately be determined to be
unnecessary. It is only after the information is evaluated that the
relevance and necessity of such information can be established. In any
investigation, the Office of Security and Law Enforcement may obtain
information concerning violations of laws other than those within the
scope of its jurisdiction. In the interest of effective law enforcement,
the Office of Security and Law Enforcement should retain this
information as it may aid in establishing patterns of criminal activity
and provide leads for those law enforcement agencies charged with
enforcing other segments of civil or criminal law.
(v) The application of Privacy Act subsection (e)(2) would impair
investigations of illegal acts, violations of the rules of conduct,
merit system and any other misconduct for the following reasons:
(A) In order to successfully verify a complaint, most information
about a complainant or an individual under investigation must be
obtained from third parties such as witnesses and informers. It is not
feasible to rely upon the subject of the investigation as a source for
information regarding his/her activities because of the subject's rights
against self-incrimination and because of the inherent unreliability of
the suspect's statements. Similarly, it is not always feasible to rely
upon the complainant as a source of information regarding his/her
involvement in an investigation.
(B) The subject of an investigation will be alerted to the existence
of an investigation if an attempt is made to obtain information from the
subject. This would afford the individual the opportunity to conceal any
criminal activities to avoid apprehension.
(vi) The reasons for exempting these records in the Police and
Security Records--VA (103VA07B) from Privacy Act subsection (e)(3) are
as follows:
(A) The disclosure to the subject of the purposes of the
investigation would provide the subject with substantial information
relating to the nature of the investigation and could impede or
compromise the investigation.
(B) Informing the complainant or the subject of the information
required by this provision could seriously interfere with undercover
activities, jeopardize the identities of undercover agents and
[[Page 79]]
impair their safety, and impair the successful conclusion of the
investigation.
(C) Individuals may be contacted during preliminary information
gathering in investigations before any individual is identified as the
subject of an investigation. Informing the individual of the matters
required by this provision would hinder or adversely affect any present
or subsequent investigations.
(vii) Since the Privacy Act defines ``maintain'' to include the
collection of information, complying with subsection (e)(5) would
prevent the collection of any data not shown to be accurate, relevant,
timely, and complete at the moment of its collection. In gathering
information during the course of an investigation, it is not always
possible to make this determination prior to collecting the information.
Facts are first gathered and then placed into a logical order which
objectively proves or disproves criminal behavior on the part of the
suspect. Material that may seem unrelated, irrelevant, incomplete,
untimely, etc., may take on added meaning as an investigation
progresses. The restrictions in this provision could interfere with the
preparation of a complete investigative report.
(viii) The notice requirement of Privacy Act subsection (e)(8) could
prematurely reveal an ongoing criminal investigation to the subject of
the investigation.
(Authority: 5 U.S.C. 552a (j) and (k); 38 U.S.C. 501)
[48 FR 29847, June 29, 1983, as amended at 68 FR 35298, June 13, 2003]
Sec. Sec. 1.583-1.584 [Reserved]
Inventions by Employees of Department of Veterans Affairs
Authority: Sections 1.650 to 1.666 issued under sect. 1, 66 Stat.
811, 72 Stat. 1114; 35 U.S.C. 266; 15 U.S.C. 3710a; 38 U.S.C. 501; E.O.
10096, E.O. 10930, 15 FR 389; 3 CFR 1949-1953 Comp.
Expanded Remote Access to Computerized Veterans Claims Records by
Accredited Representatives
Sec. 1.600 Purpose.
(a) Sections 1.600 through 1.603 establish policy, assign
responsibilities and prescribe procedures with respect to:
(1) When, and under what circumstances, VA will grant authorized
claimants' representatives read-only access to the automated Veterans
Benefits Administration (VBA) claims records of those claimants whom
they represent;
(2) The exercise of authorized access by claimants' representatives;
and
(3) The bases and procedures for disqualification of a
representative for violating any of the requirements for access.
(b) VBA will grant access to its automated claimants' claims records
from locations outside Regional Offices under the following conditions.
Access will be provided:
(1) Only to individuals and organizations granted access to
automated claimants' records under Sec. Sec. 1.600 through 1.603;
(2) Only to the claims records of VA claimants whom the organization
or individual represents as reflected in the claims file;
(3) Solely for the purpose of the representative assisting the
individual claimant whose records are accessed in a claim for benefits
administered by VA; and
(4) On a read-only basis. Individuals authorized access to VBA
automated claims records under Sec. Sec. 1.600 through 1.603 will not
be permitted to modify the data.
(c)(1) Access will be authorized only to the inquiry commands of the
Benefits Delivery Network which provide access to the following
categories of data:
(i) Beneficiary identification data such as name, social security
number, sex, date of birth, service number and related service data; and
(ii) Claims history and processing data such as folder location,
claim status, claim establishment date, claim processing history, award
data, rating data, including service-connected medical conditions,
income data, dependency data, deduction data, payment data, educational
facility and program data (except chapter 32 benefits), and education
program contribution and delimiting data (except chapter 32 benefits).
[[Page 80]]
(2) Access to this information will currently be through the inquiry
commands of BINQ (BIRLS (Beneficiaries Identification and Records
Location Subsystem) Inquiry), SINQ (Status Inquiry), MINQ (Master Record
Inquiry), PINQ (Pending Issue Inquiry) and TINQ (Payment History
Inquiry). The identifying information received from BIRLS to
representative inquiries will be limited to file number, veteran's name,
date of death, folder location and transfer date of folder, insurance
number, insurance type, insurance lapse date and insurance folder
jurisdiction.
(d) Sections 1.600 through 14.603 are not intended to, and do not:
(1) Waive the sovereign immunity of the United States; or
(2) Create, and may not be relied upon to create, any right or
benefit, substantive or procedural, enforceable at law against the
United States or the Department of Veterans Affairs.
[59 FR 47084, Sept. 14, 1994. Redesignated and amended at 73 FR 29870,
29879, May 22, 2008]
Sec. 1.601 Qualifications for access.
(a) An applicant for read-only access to VBA automated claims
records from a location other than a VA Regional Office must be:
(1) An organization, representative, attorney or agent approved or
accredited by VA under Sec. Sec. 14.626 through 14.635; or
(2) An attorney of record for a claimant in proceedings before the
Court of Veterans Appeals or subsequent proceedings who requests access
to the claimant's automated claims records as part of the representation
of the claimant.
(b) The hardware, modem and software utilized to obtain access, as
well as their location, must be approved in advance by VBA.
(c) Each individual and organization approved for access must sign
and return a notice provided by the Regional Office Director (or the
Regional Office Director's designee) of the Regional Office of
jurisdiction for the claim. The notice will specify the applicable
operational and security requirements for access and an acknowledgment
that the breach of any of these requirements is grounds for
disqualification from access.
[59 FR 47084, Sept. 14, 1994. Redesignated at 73 FR 29870, May 22, 2008]
Sec. 1.602 Utilization of access.
(a) Once an individual or organization has been issued the necessary
passwords to obtain read-only access to the automated claims records of
individuals represented, access will be exercised in accordance with the
following requirements:
(1) The individual or organization will obtain access only from
equipment and software approved in advance by the Regional Office from
the location where the individual or organization primarily conducts its
representation activities which also has been approved in advance;
(2) The individual will use only his or her assigned password to
obtain access;
(3) The individual will not reveal his or her password to anyone
else, or allow anyone else to use his or her password;
(4) The individual will access only the VBA automated claims records
of VA claimants who are represented by the person obtaining access or by
the organization employing the person obtaining access;
(5) The individual will access a claimant's automated claims record
solely for the purpose of representing that claimant in a claim for
benefits administered by VA;
(6) Upon receipt of the password, the individual will destroy the
hard copy; no written or printed record containing the password will be
retained; and
(7) The individual and organization will comply with all security
requirements VBA deems necessary to ensure the integrity and
confidentiality of the data and VBA's automated computer systems.
(b) An organization granted access shall ensure that all employees
provided access in accordance with these regulations will receive
regular, adequate training on proper security, including the items
listed in Sec. 1.603(a). Where an individual such as an attorney or
registered agent is granted access, he or she will regularly review the
security requirements for the system as set forth in these regulations
and in
[[Page 81]]
any additional materials provided by VBA.
(c) VBA may, at any time without notice:
(1) Inspect the computer hardware and software utilized to obtain
access and their location;
(2) Review the security practices and training of any individual or
organization granted access under these regulations; and
(3) Monitor an individual's or organization's access activities. By
applying for, and exercising, the access privileges under Sec. Sec.
1.600 through 1.603, the applicant expressly consents to VBA monitoring
the access activities of the applicant at any time.
[59 FR 47084, Sept. 14, 1994. Redesignated and amended at 73 FR 29870,
29879, May 22, 2008]
Sec. 1.603 Disqualification.
(a) The Regional Office Director or the Regional Office Director's
designee may revoke an individual's or an organization's access
privileges to a particular claimant's records because the individual or
organization no longer represents the claimant, and, therefore, the
beneficiary's consent is no longer in effect. The individual or
organization is no longer entitled to access as a matter of law under
the Privacy Act, 5 U.S.C. 552a, and 38 U.S.C. 5701 and 7332. Under these
circumstances, the individual or organization is not entitled to any
hearing or to present any evidence in opposition to the revocation.
(b) The Regional Office Director or the Regional Office Director's
designee may revoke an individual's or an organization's access
privileges either to an individual claimant's records or to all
claimants' records in the VBA automated claims benefits systems if the
individual or organization:
(1) Violates any of the provisions of Sec. Sec. 1.600 through
1.603;
(2) Accesses or attempts to access data for a purpose other than
representation of an individual veteran;
(3) Accesses or attempts to access data other than the data
specified in these regulations;
(4) Accesses or attempts to access data on a VA beneficiary who is
not represented either by the individual who obtains access or by the
organization employing the individual who obtains access;
(5) Utilizes unapproved computer hardware or software to obtain or
attempt to obtain access to VBA computer systems;
(6) Modifies or attempts to modify data in the VBA computer systems.
(c) If VBA is considering revoking an individual's access under
Sec. 1.603(b), and that individual works for an organization, the
Regional Office of jurisdiction will notify the organization of the
pendency of the action.
(d) After an individual's access privileges are revoked, if the
conduct which resulted in revocation was such that it merits reporting
to an appropriate governmental licensing organization such as a State
bar, the VBA Regional Office of jurisdiction will immediately inform the
licensing organization in writing of the fact that the individual's
access privileges were revoked and the reasons why.
(e) The VBA Regional Office of jurisdiction may temporarily suspend
access privileges prior to any determination on the merits of the
proposed revocation where the Regional Office Director or the Director's
designee determines that such immediate suspension is necessary in order
to protect the integrity of the system or confidentiality of the data in
the system from a reasonably foreseeable compromise. However, in such
case, the Regional Office shall offer the individual or organization an
opportunity to respond to the charges immediately after the temporary
suspension.
[59 FR 47084, Sept. 14, 1994. Redesignated and amended at 73 FR 29870,
29879, May 22, 2008]
Inventions by Employees of Department of Veterans Affairs
Authority: Sections 1.650 to 1.666 issued under sect. 1, 66 Stat.
811, 72 Stat. 1114; 35 U.S.C. 266; 15 U.S.C. 3710a; 38 U.S.C. 501; E.O.
10096, E.O. 10930, 15 FR 389; 3 CFR 1949-1953 Comp.
Sec. 1.650 Purpose.
The purpose of these regulations is to prescribe the procedure to be
followed in determining and protecting the respective rights of the
United States
[[Page 82]]
Government and of Department of Veterans Affairs employees who make
inventions.
[21 FR 10377, Dec. 28, 1956, as amended at 61 FR 29658, June 12, 1996]
Sec. 1.651 Definitions.
The terms as used in the regulations concerning inventions by
employees of the Department of Veterans Affairs are defined as follows:
(a) The term invention includes any art, machine, manufacture,
design, or composition of matter, or any new and useful improvement
thereof, or any variety of plant, which is or may be patentable under
the patent laws of the United States.
(b) The term employee or Government employee means any officer or
employee, civilian or military, of the Department of Veterans Affairs.
Part-time, without compensation (WOC) employees and part-time
consultants are included.
(c) The term Secretary of Commerce means the Under Secretary of
Commerce for Technology.
[21 FR 10377, Dec. 28, 1956, as amended at 31 FR 5291, Apr. 2, 1966; 61
FR 29658, June 12, 1996]
Sec. 1.652 Criteria for determining rights to employee inventions.
(a) The criteria to be applied in determining the respective rights
of the Government and of the employee-inventor in and to any invention
subject to these provisions shall be in accordance with the Uniform
Patent Policy regulations found at 37 CFR 501.6 and 501.7.
(b) Ownership in and to inventions arising under Cooperative
Research and Development Agreements (CRADAs) pursuant to 15 USC 3710a
shall be governed by the provisions of the pertinent CRADA, as
authorized by the Federal Technology Transfer Act.
(Authority: 15 U.S.C. 3710a; 37 CFR part 501)
[61 FR 29658, June 12, 1996]
Sec. 1.653 Delegation of authority.
The General Counsel, Deputy General Counsel or Assistant General
Counsel for Professional Staff Group IV is authorized to act for the
Secretary of Veterans Affairs in matters concerning patents and
inventions, unless otherwise required by law. The determination of
rights to an invention as between the Government and the employee where
there is no cooperative research and development agreement shall be made
by the General Counsel, Deputy General Counsel or the Assistant General
Counsel for Professional Staff Group IV, in accordance with 37 CFR part
500.
[62 FR 14822, Mar. 28, 1997]
Sec. 1.654 Patenting of inventions.
Any invention owned by the Government under the criteria as set
forth in 37 CFR 501.6 should be protected by an application for a
domestic patent and other necessary documents executed by the employee
inventor prepared by or through the General Counsel, Deputy General
Counsel or Assistant General Counsel for Professional Staff Group IV,
unless some other agency has primary interest or it is decided to
dedicate the invention to the public. Such dedication requires approval
of the Secretary of Commerce. Applications on behalf of the Government
for foreign patents may be made if determined to be in the public
interest. The payment of necessary expenses in connection with any
application filed or patent obtained under this section by the
Department of Veterans Affairs is authorized.
[31 FR 5291, Apr. 2, 1966, as amended at 54 FR 26027, June 21, 1989; 61
FR 29658, June 12, 1996; 62 FR 14822, Mar. 28, 1997]
Sec. 1.655 Government license in invention of employee.
If an invention is made by an employee and it is determined that the
employee inventor is entitled to full ownership under 37 CFR 501.6,
subject to a nonexclusive, irrevocable, royalty-free license in the
Government with power to grant sublicenses for all Governmental
purposes, it shall be the duty of the employee inventor to notify the
Office of General Counsel of the status of the patent application,
including the patent application number, so that the Department may
protect the interests reserved to the Government under 37 CFR 501.6.
[61 FR 29658, June 12, 1996]
[[Page 83]]
Sec. 1.656 Information to be submitted by inventor.
(a) In the case of an invention or believed invention, the inventor
will prepare a statement for submission to his or her immediate
superior. It will be submitted regardless of where the ownership is
believed to exist. The statement will consist of two parts:
(1) One part of the statement will be a disclosure of the invention
sufficient to permit the preparation of a patent applicant. It shall
consist of a description, including where applicable, of the parts or
components of the invention as shown on the drawings or blueprints,
accompanied further by a description of the construction and operation
of the invention. Photographs of the invention may be included. The
inventor should state pertinent prior art known to him or her, and set
forth in detail as clearly as possible the respects which his or her
invention differs.
(2) The other part of the statement will set forth the circumstances
attending the making of the invention. It will include the full name and
address of the inventor; the grade and title of his or her position;
whether full time or part time; his or her duties at the time the
invention was made; the facts pertinent to a determination whether the
invention bore a direct relation to or was made in consequence of such
official duties; whether there was, and if so, the terms of any special
agreement or understanding with respect to use or manufacture of his or
her invention; date of the invention; when and where it was conceived,
constructed and tested; whether it was made entirely during working
hours; whether, and to what extent there was a contribution by the
Government of any of the following: Facilities; equipment; materials or
supplies; funds; information; time or services of other Government
employees on duty. When the invention is disclosed through publication,
or in consultation with a manufacturer or attorney, simultaneous
notification of the publication shall be given to the Office of General
Counsel. A copy of the article will accompany the notification.
(b) The inventor's immediate superior shall promptly review the
statement of the employee inventor for completeness and accuracy, and
shall certify that the employee's statement of circumstances attending
the invention is or is not correct, giving reasons if pertinent. The
file should then be submitted through the facility head (or
administration heads or top staff officials in the case of Central
Office employees) to the General Counsel together with any comments or
recommendations.
[61 FR 29658, June 12, 1996]
Sec. 1.657 Determination of rights.
The General Counsel, Deputy General Counsel or Assistant General
Counsel for Professional Staff Group IV will make a determination of
rights subject to review where required by the Secretary of Commerce.
The determination will be in accordance with 37 CFR 501.7.
[61 FR 29658, June 12, 1996, as amended at 62 FR 14822, Mar. 28, 1997]
Sec. 1.658 Right of appeal.
In accordance with 37 CFR 501.8, the employee has a right of appeal
to the Secretary of Commerce within 30 days of receipt of the
Department's determination of ownership rights. The decision reached by
the Secretary of Commerce will be communicated to the employee.
[61 FR 29658, June 12, 1996]
Sec. 1.659 Relationship to incentive awards program.
Procedures set out in the regulations concerning inventions by
employees of the Department of Veterans Affairs are not affected by the
submission or proposed submission of an employee suggestion or idea on
an item which may be patentable. Consideration of an item for a
determination of ownership rights and also for an incentive award will
proceed simultaneously, usually on separate correspondence. An employee
suggestion or copies and extracts of the file may be forwarded to the
General Counsel by the reviewing or awarding authority, or by the
facility head, for an ownership determination where the employee idea or
suggestion involves
[[Page 84]]
an invention. The employee shall be directed to submit a disclosure of
invention in accordance with these regulations if such has not been
previously submitted.
[31 FR 5291, Apr. 2, 1966, as amended at 61 FR 29659, June 12, 1996]
Sec. 1.660 Expeditious handling.
No patent may be granted where the invention has been in public use
or publicly disclosed for more than one year before filing of a patent
application. Hence, submissions involving inventions should be made as
promptly as possible in order to avoid delay which might jeopardize
title to the invention or impair the rights of the inventor or the
Government.
[61 FR 29659, June 12, 1996]
Sec. 1.661 Information to be kept confidential.
All information pertaining to inventions and pending patent
applications is confidential, and employees having access to such
information are forbidden to disclose or reveal the same except as
required in the performance of their official duties.
[21 FR 10378, Dec. 28, 1956. Redesignated at 61 FR 29659, June 12, 1996]
Sec. 1.662 Provisions of regulations made a condition of employment.
The provisions of the regulations concerning inventions by employees
of the Department of Veterans Affairs shall be a condition of employment
of all employees.
[21 FR 10378, Dec. 28, 1956. Redesignated at 61 FR 29659, June 12, 1996]
Sec. 1.663 Licensing of Government-owned inventions.
(a) The licensing of Government-owned inventions under VA control
and custody will be conducted pursuant to the regulations on the
licensing of Government-owned inventions contained in 37 CFR part 404,
and 15 U.S.C. 3710a, as appropriate.
(b) Any person whose application for a license in an invention under
VA control and custody has been denied; whose license in such an
invention has been modified or terminated, in whole or in part; or who
timely filed a written objection in response to a proposal to grant an
exclusive or partially exclusive license in an invention under VA
control or custody, may, if damaged, appeal any decision or
determination concerning the grant, denial, interpretation,
modification, or termination of a license to the Secretary of Veterans
Affairs. Such appeal shall be in writing; shall set forth with
specificity the basis of the appeal; and shall be postmarked not later
than 60 days after the action being appealed. Upon request of the
appellant, such appeal may be considered by one to three persons
appointed on a case-by-case basis by the Secretary of Veterans Affairs.
Such a request will be granted only if it accompanies the written
appeal. Appellant may appear and be represented by counsel before such a
panel, which will sit in Washington, DC. If the appeal challenges a
decision to grant an exclusive or partially exclusive license in an
invention under VA control or custody, the licensee shall be furnished a
copy of the appeal, shall be given the opportunity to respond in
writing, may appear and be represented by counsel at any hearing
requested by appellant, and may request a hearing if appellant has not,
under the same terms and conditions, at which the appellant may also
appear and be represented by counsel.
[61 FR 29659, June 12, 1996]
Sec. Sec. 1.664-1.666 [Reserved]
Administrative Control of Funds
Source: 48 FR 30622, July 5, 1983, unless otherwise noted.
Sec. 1.670 Purpose.
The following regulations establish a system of administrative
controls for all appropriations and funds available to the Department of
Veterans Affairs to accomplish the following purposes:
(a) Establish an administrative subdivision of controls to restrict
obligations and expenditures against each appropriation or fund to the
amount of the apportionment or the reapportionment; and
(b) Fix responsibility for the control of appropriations or funds to
high level officials who bear the responsibility for
[[Page 85]]
apportionment or reapportionment control.
(Authority: 31 U.S.C. 1514)
Sec. 1.671 Definitions.
For the purpose of Sec. Sec. 1.670 through 1.673, the following
definitions apply:
(a) Administrative subdivision of funds. An administrative
subdivision of funds is any administrative subdivision of an
appropriation or fund which makes funds available in a specified amount
for the purpose of controlling apportionments or reapportionments.
(b) Allotment. An allotment is an authorization by the Director,
Office of Budget and Finance, to department and staff office heads
(allottees) to incur obligations within specified amounts, during a
specified period, pursuant to an Office of Management and Budget
apportionment or reapportionment action. The creation of an obligation
in excess of an allotment is a violation of the administrative
subdivision of funds.
(c) Allowance. An allowance is a subdivision below the allotment
level, and is a guideline which may be issued by department or staff
office heads (allottees) to facility directors and other officials,
showing the expenditure pattern or operating budget they will be
expected to follow in light of the program activities contemplated by
the overall VA budget or plan of expenditure. The creation of an
obligation in excess of an allowance is not a violation of the
administrative subdivision of funds.
(Authority: 31 U.S.C. 1514)
Sec. 1.672 Responsibilities.
(a) The issuance of an allotment to the administration and staff
office heads (allottees) is required and is the responsibility of the
Director, Office of Budget and Finance. The sum of such allotments shall
not be in excess of the amount indicated in the apportionment or
reapportionment document.
(b) The issuance of an allowance is discretionary with department or
staff office heads (allottees), as an allowance is merely a management
device which allottees may utilize in carrying out their
responsibilities. Allottees are responsible for keeping obligations
within the amounts of their allotments, whether allowances are issued or
not.
(c) The Director, Office of Budget and Finance, is responsible for
requesting apportionments and reapportionments from the Office of
Management and Budget. Administration and staff heads shall promptly
request that an appropriation or fund be reapportioned if feasible
whenever it appears that obligations may exceed the level of the
apportionment.
(Authority: 31 U.S.C. 1514)
Sec. 1.673 Responsibility for violations of the administrative
subdivision of funds.
(a) In the event an allotment or an apportionment is exceeded except
in the circumstances described in paragraph (b) of this section, the
following factors will be considered in determining which official, or
officials, are responsible for the violation.
(1) Knowledge of circumstances which could lead to an allotment or
apportionment being exceeded;
(2) Whether the official had received explicit instructions to
continue or cease incurring obligations;
(3) Whether any action was taken in contravention of or with
disregard for, instructions to monitor obligations incurred;
(4) Whether the official had the authority to curtail obligations by
directing a change in the manner of operations of the department or
staff office; or
(5) Any other facts which tend to fix the responsibility for the
obligations which resulted in the allotment or apportionment being
exceeded.
(b) In the event that the sum of the allotments made in a particular
fiscal year exceeds the amount apportioned by the Office of Management
and Budget, and the apportionment is subsequently exceeded because of
this action, the official who made the excess allotments will be the
official responsible for the violation.
(Authority: 31 U.S.C. 1514)
Use of Official Mail in the Location and Recovery of Missing Children
Source: 52 FR 10889, Apr. 6, 1987, unless otherwise noted.
[[Page 86]]
Sec. 1.700 Purpose.
Sections 1.700 through 1.705 of this title provide a Missing
Children Official Mail Program in the Department of Veterans Affairs.
(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)
[60 FR 48387, Sept. 19, 1995]
Sec. 1.701 Contact person for missing children official mail program.
The Department of Veterans Affairs contact person for the Missing
Children Official Mail Program is: Mrs. Roslynd R. Stewart, Information
Management Service (045A4), Office of Policy and Program Assistance,
Office of Information Resources Management, Office of Management,
Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC
20420-0001. Telephone: (202) 565-8949.
(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)
[60 FR 48388, Sept. 19, 1995]
Sec. 1.702 Policy.
(a) The Department of Veterans Affairs will supplement and expand
the national effort to assist in the location and recovery of missing
children by maximizing the economical use of missing children
information in domestic official mail and publications directed to
members of the public and Department of Veterans Affairs employees.
(b) The Department of Veterans Affairs will insert pictures and
biographical information related to missing children in a variety of
official mail originating at the Department of Veterans Affairs
automation centers. In addition, pictures and biographical information
are printed in self-mailers and other Department of Veterans Affairs
publications (newsletters, bulletins, etc.).
(c) The National Center for Missing and Exploited Children (National
Center) is the sole source from which the Department of Veterans Affairs
will acquire the camera-ready and other photographic and biographical
materials to be disseminated for use by Department of Veterans Affairs
organizational units. The information is ordered and disseminated by
Information Management Service.
(d) The Department of Veterans Affairs will remove all printed
inserts and other materials from circulation or other use within a
three-month period from the date the National Center notifies the
Department of Veterans Affairs that a child whose picture and
biographical information have been made available to the Department of
Veterans Affairs has been recovered or that permission of the parent(s)
or guardian to use the child's photograph and biographical information
has been withdrawn. The National Center is responsible for immediately
notifying the Department of Veterans Affairs contact person, in writing,
of the need to withdraw from circulation official mail and other
materials related to a particular child. Photographs which were
reasonably current as of the time of the child's disappearence shall be
the only acceptable form of visual medium or pictorial likeness used in
official mail.
(e) The Department of Veterans Affairs will give priority to
official mail that is addressed to:
(1) Members of the public that will be received in the United
States, its territories and possessions; and
(2) Inter- and intra-agency publications and other media that will
also be widely disseminated to Department of Veterans Affairs employees.
(f) The Department of Veterans Affairs will avoid repetitive
mailings of material to the same individuals.
(g) All Department of Veterans Affairs employee suggestions and/or
recommendations for additional cost-effective opportunities to use
photographs and biographical data on missing children will be provided
to the Department of Veterans Affairs contact person.
(h) These shall be the sole regulations for the Department of
Veterans Affairs and its component organizational units.
(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301).
[52 FR 10889, Apr. 6, 1987, as amended at 60 FR 48388, Sept. 19, 1995]
Sec. 1.703 Percentage estimate.
It is the Department of Veterans Affairs objective that 20 percent
of its first class official mail addressed to the
[[Page 87]]
public contain missing children photographs and information.
(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)
[60 FR 48388, Sept. 19, 1995]
Sec. 1.704 [Reserved]
Sec. 1.705 Restrictions on use of missing children information.
Missing children pictures and biographical data shall not be:
(a) Printed on official envelopes and other materials ordered and
stocked in quantities that represent more than a 90-day supply.
(b) Printed on blank pages or covers of publications that may be
included in the Superintendent of Documents Sales Program or be
distributed to depository libraries.
(c) Inserted in any envelope or publication the contents of which
may be construed to be inappropriate for association with the missing
children program.
(d) Inserted in any envelope where the insertion would increase the
postage cost for the item being mailed.
(e) Placed on letter-size envelopes on the official indicia, the
area designated for optical character readers (OCRs), bar code read
area, and return address area in accordance with the Office of Juvenile
Justice and Delinquency Prevention guidelines and U.S. Postal Service
standards.
(Authority: 39 U.S.C. 3220(a)(2), 5 U.S.C. 301)
[52 FR 10889, Apr. 6, 1987, as amended at 60 FR 48388, Sept. 19, 1995]
Homeless Claimants
Sec. 1.710 Homeless claimants: Delivery of benefit payments
and correspondence.
(a) All correspondence and all checks for benefits payable to
claimants under laws administered by the Department of Veterans Affairs
shall be directed to the address specified by the claimant. The
Department of Veterans Affairs will honor for this purpose any address
of the claimant in care of another person or organization or in care of
general delivery at a United States post office. In no event will a
claim or payment of benefits be denied because the claimant provides no
mailing address.
(Authority: 38 U.S.C. 5103; 5120)
(b) To ensure prompt delivery of benefit payments and
correspondence, claimants who seek personal assistance from Veterans
Benefits Counselors when filing their claims shall be counseled as to
the importance of providing his or her current mailing address and, if
no address is provided, the procedures for delivery described in
paragraph (d) of this section.
(Authority: 38 U.S.C. 5103; 5120)
(c) The Department of Veterans Affairs shall prepare and distribute
to organizations specially serving the needs of veterans and the
homeless, including but not limited to shelters, kitchens and private
outreach facilities, information encouraging such organizations to
counsel individuals on the importance of providing mailing addresses to
the Department of Veterans Affairs and advising them of this regulation.
(Authority: 38 U.S.C. 5103; 5120)
(d) If a claimant fails or refuses to provide a current mailing
address to the Department of Veterans Affairs, all correspondence and
any checks for benefits to which the claimant is entitled will be
delivered to the Agent Cashier of the regional office which adjudicated
or is adjudicating the claim in the case of compensation, pension or
survivors' benefits, to the Agent Cashier of the Department of Veterans
Affairs facility closest to the educational institution or training
establishment attended by a claimant in the case of education benefits,
or to the Agent Cashier of any other Department of Veterans Affairs
facility deemed by the Agency to be appropriate under the circumstances
of the particular case. The claimant, within 30 days after issuance, may
obtain delivery of any check or correspondence held by an Agent Cashier
upon presentation of proper identification. Checks unclaimed after 30
days will be returned to the Department of the Treasury and the
correspondence to the regional office or facility of jurisdiction.
Thereafter, the claimant must request the reissuance of any
[[Page 88]]
such check or item of correspondence by written notice to the Department
of Veterans Affairs.
(Authority: 38 U.S.C. 5103; 5120)
[53 FR 22654, June 17, 1988]
Sec. Sec. 1.780-1.783 [Reserved]
Part-Time Career Employment Program
Source: 44 FR 55172, Sept. 25, 1979, unless otherwise noted.
Sec. 1.891 Purpose of program.
Many individuals in society possess great productive potential which
goes unrealized because they cannot meet the requirements of a standard
workweek. Permanent part-time employment also provides benefits to other
individuals in a variety of ways, such as providing older individuals
with a gradual transition into retirement, providing employment
opportunities to handicapped individuals or others who requires a
reduced workweek, providing parents opportunities to balance family
responsibilities with the need for additional income, and assisting
students who must finance their own education or vocational training. In
view of this, the Department of Veterans Affairs will operate a part-
time career employment program, consistent with the needs of its
beneficiaries and its responsibilities.
(Authority: 5 U.S.C. 3401 note)
Sec. 1.892 Review of positions.
Positions becoming vacant, unless excepted as provided by Sec.
1.897, will be reviewed to determine the feasibility of converting them
to part-time. Among the criteria which may be used when conducting this
review are:
(a) Mission requirements.
(b) Workload.
(c) Employment ceilings and budgetary considerations.
(d) Availability of qualified applicants willing to work part time.
(e) Other criteria based on local needs and circumstances.
(Authority: 5 U.S.C. 3402)
Sec. 1.893 Establishing and converting part-time positions.
Position management and other internal reviews may indicate that
positions may be either converted from full-time or initially
established as part-time positions. Criteria listed in Sec. 1.892 may
be used during these reviews. If a decision is made to convert to or to
establish a part-time position, regular position management and
classification procedures will be followed.
(Authority: 5 U.S.C. 3402)
Sec. 1.894 Annual goals and timetables.
An departmentwide plan for promoting part-time employment
opportunities will be developed annually. This plan will establish
annual goals and set interim and final deadlines for achieving these
goals. This plan will be applicable throughout the agency, but may be
supplemented by field facilities.
(Authority: 5 U.S.C. 3402)
Sec. 1.895 Review and evaluation.
The part-time career employment program will be reviewed through
regular employment reports to determine levels of part-time employment.
This program will also be designated an item of special interest to be
reviewed during personnel management reviews.
(Authority: 5 U.S.C. 3402)
[61 FR 38571, July 25, 1996]
Sec. 1.896 Publicizing vacancies.
When applicants from outside the Federal service are desired, part-
time vacancies may be publicized through various recruiting means, such
as:
(a) Federal Job Information Centers.
(b) State Employment offices.
(c) VA Recruiting Bulletins.
(Authority: 5 U.S.C. 3402)
Sec. 1.897 Exceptions.
The Secretary of Veterans Affairs, or designees, may except
positions from inclusion in this program as necessary to carry out the
mission of the Department.
(Authority: 5 U.S.C. 3402)
[[Page 89]]
Standards for Collection, Compromise, Suspension or Termination of
Collection Effort, and Referral of Civil Claims for Money or Property
Authority: Sections 1.900 through 1.953 are issued under the
authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, 5302, 5302A,
5314, and as noted in specific sections.
Source: 32 FR 2613, Feb. 8, 1967, unless otherwise noted.
Sec. 1.900 Prescription of standards.
(a) The standards contained in Sec. Sec. 1.900 through 1.953 are
issued pursuant to the Federal Claims Collection Standards, issued by
the Department of the Treasury (Treasury) and the Department of Justice
(DOJ) in parts 900 through 904 of 31 CFR, as well as other debt
collection authority issued by Treasury in part 285 of 31 CFR, and apply
to the collection, compromise, termination, and suspension of debts owed
to VA, and the referral of such debts to Treasury (or other Federal
agencies designated by Treasury) for offset and collection action and to
DOJ for litigation, unless otherwise stated in this part or in other
statutory or regulatory authority, or by contract.
(b) Standards and policies regarding the classification of debt for
accounting purposes (for example, write-off of uncollectible debt) are
contained in the Office of Management and Budget's Circular A-129
(Revised), ``Policies for Federal Credit Programs and Non-Tax
Receivables.''
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62191, Oct. 25, 2004]
Sec. 1.901 No private rights created.
Sections 1.900 through 1.953 do not create any right or benefit,
substantive or procedural, enforceable at law or in equity by a party
against the United States, its agencies, its officers, or any other
person, nor shall the failure of VA to comply with any of the provisions
of Sec. Sec. 1.900 through 1.953 be available to any debtor as a
defense.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62191, Oct. 25, 2004]
Sec. 1.902 Antitrust, fraud, and tax and interagency claims.
(a) The standards in Sec. Sec. 1.900 through 1.953 relating to
compromise, suspension, and termination of collection activity do not
apply to any debt based in whole or in part on conduct in violation of
the antitrust laws or to any debt involving fraud, the presentation of a
false claim, or misrepresentation on the part of the debtor or any party
having an interest in the claim. Only the Department of Justice (DOJ)
has the authority to compromise, suspend, or terminate collection
activity on such claims. The standards in Sec. Sec. 1.900 through 1.953
relating to the administrative collection of claims do apply, but only
to the extent authorized by DOJ in a particular case. Upon
identification of a claim based in whole or in part on conduct in
violation of the antitrust laws or any claim involving fraud, the
presentation of a false claim, or misrepresentation on the part of the
debtor or any party having an interest in the claim, VA shall promptly
refer the case to DOJ. At its discretion, DOJ may return the claim to VA
for further handling in accordance with the standards in Sec. Sec.
1.900 through 1.953.
(b) Sections 1.900 through 1.953 do not apply to tax debts.
(c) Sections 1.900 through 1.953 do not apply to claims between
Federal agencies.
(d) Federal agencies should attempt to resolve interagency claims by
negotiation in accordance with Executive Order 12146 (3 CFR, 1980 Comp.,
pp. 409-412).
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62192, Oct. 25, 2004]
Sec. 1.903 Settlement, waiver, or compromise under other statutory
or regulatory authority.
Nothing in Sec. Sec. 1.900 through 1.953 precludes VA settlement,
waiver, compromise, or other disposition of any claim under statutes and
implementing regulations other than subchapter II of chapter 37 of Title
31 of the United States Code (Claims of the United States Government)
and the standards in Title 31 CFR parts 900 through 904. See, for
example, the Federal Medical Care Recovery Act (42 U.S.C. 2651 et
[[Page 90]]
seq.) and applicable regulations, 28 CFR part 43. In such cases, the
laws and regulations that are specifically applicable to claims
collection activities of VA generally take precedence over 31 CFR parts
900 through 904.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62192, Oct. 25, 2004]
Sec. 1.904 Form of payment.
Claims may be paid in the form of money or, when a contractual basis
exists, VA may demand the return of specific property or the performance
of specific services.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62192, Oct. 25, 2004]
Sec. 1.905 Subdivision of claims not authorized.
Debts may not be subdivided to avoid the monetary ceiling
established by 31 U.S.C. 3711(a)(2). A debtor's liability arising from a
particular transaction or contract shall be considered as a single debt
in determining whether the debt is one of less than $100,000 (excluding
interest, penalties, and administrative costs) or such higher amount as
the Attorney General shall from time to time prescribe for purposes of
compromise, suspension, or termination of collection activity.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62192, Oct. 25, 2004]
Sec. 1.906 Required administrative proceedings.
(a) In applying Sec. Sec. 1.900 through 1.953, VA is not required
to omit, foreclose, or duplicate administrative proceedings required by
contract or other laws or regulations.
(b) Nothing contained in Sec. Sec. 1.900 through 1.953 is intended
to foreclose the right of any debtor to an administrative proceeding,
including appeals, waivers, and hearings provided by statute, contract,
or VA regulation (see 38 U.S.C. 3720(a)(4) and 5302 and 42 U.S.C. 2651-
2653).
(Authority: 38 U.S.C. 501, 3720(a)(4), 5302; 42 U.S.C. 2651 through
2653)
[69 FR 62192, Oct. 25, 2004]
Sec. 1.907 Definitions.
(a) The definitions and construction found in the Federal Claims
Collection Standards in 31 CFR 900.2(a) through (d), and the definitions
in the provisions on administrative wage garnishment in 31 CFR 285.11(c)
shall apply to Sec. Sec. 1.900 through 1.953, except as otherwise
stated.
(b) As used in Sec. Sec. 1.900 through 1.953, referral for
litigation means referral to the Department of Justice for appropriate
legal actions, except in those specified instances where a case is
referred to a VA Regional Counsel for legal action.
(c) As used in Sec. Sec. 1.900 through 1.953, VA benefit program
means medical care, home loan, and benefits payment programs
administered by VA under Title 38 of the United States Code, except as
otherwise stated.
(d) As used in Sec. Sec. 1.900 through 1.953, Treasury means the
United States Department of the Treasury.
(Authority: 31 U.S.C. 3701, 3711; 38 U.S.C. 501, 5316)
[69 FR 62192, Oct. 25, 2004]
Standards for Collection of Claims
Authority: Sections 1.900 through 1.953 are issued under the
authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, and as noted
in specific sections.
Source: 32 FR 2613, Feb. 8, 1967, unless otherwise noted.
Sec. 1.910 Aggressive collection action.
(a) VA will take aggressive collection action on a timely basis,
with effective follow-up, to collect all claims for money or property
arising from its activities.
(b) In accordance with 31 U.S.C. 3711(g) and the procedures set
forth at 31 CFR 285.12, VA shall transfer to Treasury any non-tax debt
or claim that has been delinquent for a period of 180 days or more so
that Treasury may take appropriate action to collect the debt or
terminate collection action. This requirement does not apply to any debt
that:
(1) Is in litigation or foreclosure;
(2) Will be disposed of under an approved asset sale program;
[[Page 91]]
(3) Has been referred to a private collection contractor for a
period of time acceptable to the Secretary of the Treasury;
(4) Is at a debt collection center for a period of time acceptable
to the Secretary of the Treasury;
(5) Will be collected under internal offset procedures within 3
years after the debt first became delinquent; or
(6) Is exempt from this requirement based on a determination by the
Secretary of the Treasury that exemption for a certain class of debt is
in the best interest of the United States. VA may request that the
Secretary of the Treasury exempt specific classes of debts.
(c) In accordance with 31 U.S.C. 3716(c)(6) and the procedures set
forth in 31 CFR part 285, VA shall notify Treasury of all past due,
legally enforceable non-tax debt that is over 180 days delinquent for
purposes of administrative offset, including tax refund offset and
federal salary offset. (Procedures for referral to Treasury for tax
refund offset are found at 31 CFR 285.2 and procedures for referral to
Treasury for federal salary offset are found at 38 CFR 1.995 and 31 CFR
285.7.)
(Authority: 31 U.S.C. 1311, 1316; 38 U.S.C. 501, 5314; 31 CFR part 285)
[69 FR 62192, Oct. 25, 2004]
Sec. 1.911 Collection of debts owed by reason of participation in
a benefits program.
(a) Scope. This section applies to the collection of debts resulting
from an individual's participation in a VA benefit or home loan program.
It does not apply to VA's other debt collection activities. Standards
for the demand for payment of all other debts owed to VA are set forth
in Sec. 1.911a. School liability debts are governed by Sec. 21.4009 of
this title.
(b) Written demands. When VA has determined that a debt exists by
reason of an administrative decision or by operation of law, VA shall
promptly demand, in writing, payment of the debt. VA shall notify the
debtor of his or her rights and remedies and the consequences of failure
to cooperate with collection efforts. Generally, one demand letter is
sufficient, but subsequent demand letters may be issued as needed.
(c) Rights and remedies. Subject to limitations referred to in this
paragraph, the debtor has the right to informally dispute the existence
or amount of the debt, to request waiver of collection of the debt, to a
hearing on the waiver request, and to appeal the Department of Veterans
Affairs decision underlying the debt. These rights can be exercised
separately or simultaneously. Except as provided in Sec. 1.912a
(collection by offset), the exercise of any of these rights will not
stay any collection proceeding.
(1) Informal dispute. This means that the debtor writes to the
Department of Veterans Affairs and questions whether he or she owes the
debt or whether the amount is accurate. The Department of Veterans
Affairs will, as expeditiously as possible, review the accuracy of the
debt determination. If the resolution is adverse to the debtor, he or
she may also request waiver of collection as indicated in paragraphs
(c)(2) and (3) of this section.
(2) Request for waiver; hearing on request. The debtor has the right
to request waiver of collection, in accordance with Sec. 1.963 or Sec.
1.964, and the right to a hearing on the request. Requests for waivers
must be filed in writing. A waiver request must be filed within the time
limit set forth in 38 U.S.C. 5302. If waiver is granted, in whole or in
part, the debtor has a right to refund of amounts already collected up
to the amount waived.
(3) Appeal. In accordance with parts 19 and 20 of this title, the
debtor may appeal the decision underlying the debt.
(d) Notification. The Department of Veterans Affairs shall notify
the debtor in writing of the following:
(1) The exact amount of the debt;
(2) The specific reasons for the debt, in simple and concise
language;
(3) The rights and remedies described in paragraph (c) of this
section, including a brief explanation of the concept of, and
requirements for, waiver;
(4) That collection may be made by offset from current or future VA
benefit payments (see Sec. 1.912a). In addition, the debtor shall be
advised of any policies with respect to the use of credit
[[Page 92]]
bureaus, debt collection centers, and collection agencies; any other
remedies to enforce payment of the debt, including administrative wage
garnishment, Federal salary offset, tax refund offset, and litigation;
and the requirement that any debt delinquent for more than 180 days be
transferred to Treasury for administrative offset or collection.
(5) That interest and administrative costs may be assessed in
accordance with Sec. 1.915, as appropriate;
(6) That the debtor shall have the opportunity to inspect and copy
records; and
(7) That the debtor shall have the opportunity to enter into a
repayment agreement.
(e) Sufficiency of notification. Notification is sufficient when
sent by ordinary mail directed to the debtor's last known address and
not returned as undeliverable by postal authorities.
(f) Further explanation. Further explanation may be found for--
(1) Appellate rights, in parts 19 and 20 of this title;
(2) Notification of any decision affecting the payment of benefits
or granting relief, in Sec. 3.103(e);
(3) Right to appeal a waiver decision, in Sec. 1.958;
(4) Refund to a successful waiver applicant of money already
collected, in Sec. 1.967; and
(5) The assessment of interest and administrative costs, in Sec.
1.915.
(Authority: 38 U.S.C. 501, 5302, 5314)
[48 FR 1055, Jan. 10, 1983; 48 FR 6336, Feb. 11, 1983. Redesignated and
amended at 52 FR 42105, Nov. 3, 1987; 54 FR 34980, Aug. 23, 1989; 69 FR
62193, Oct. 25, 2004]
Sec. 1.911a Collection of non-benefit debts.
(a) This section is written in accordance with 31 CFR 901.2 and
applies to the demand for payment of all debts, except those debts
arising out of participation in a VA benefit or home loan program.
Procedures for the demand for payment of VA benefit or home loan program
debts are set forth in Sec. 1.911.
(b) Written demand as described in paragraph (c) of this section
shall be made promptly upon a debtor of VA in terms that inform the
debtor of the consequences of failing to cooperate with VA to resolve
the debt. Generally, one demand letter is sufficient, but subsequent
letters may be issued. In determining the timing of the demand letter,
VA should give due regard to the need to refer debts promptly to the
Department of Justice for litigation, in accordance with Sec. Sec.
1.950 through 1.953. When necessary to protect VA's interest (for
example, to prevent the running of a statute of limitations), written
demand may be preceded by other appropriate actions under 38 CFR 1.900
through 1.953, including immediate referral for litigation.
(c) The written demand letter shall inform the debtor of:
(1) The basis for the indebtedness and any rights the debtor may
have to seek review within VA, including the right to request waiver;
(2) The applicable standards for imposing any interest or other late
payment charges;
(3) The date by which payment should be made to avoid interest and
other late payment charges and enforced collection, which generally
should not be more than 30 days from the date that the demand letter is
mailed;
(4) The name, address, and phone number of a contact person or
office within the agency;
(5) The opportunity to inspect and copy VA records related to the
debt; and
(6) The opportunity to make a written agreement to repay the debt.
(d) In addition to the items listed in paragraph (c) of this
section, VA should include in the demand letter VA's willingness to
discuss alternative methods of payment and its policies with respect to
the use of credit bureaus, debt collection centers, and collection
agencies. The letter should also indicate the agency's remedies to
enforce payment of the debt (including assessment of interest,
administrative costs and penalties, administrative garnishment, Federal
salary offset, tax refund offset, administrative offset, and litigation)
and the requirement that any debt delinquent for more than 180 days be
transferred to Treasury for collection.
(e) VA should respond promptly to communications from debtors and
[[Page 93]]
should advise debtors who dispute debts, or request waiver, to furnish
available evidence to support their contentions.
(f) Prior to referring a debt for litigation, VA should advise each
debtor determined to be liable for the debt that, unless the debt can be
collected administratively, litigation may be initiated. This
notification may be given as part of a demand letter under paragraph (c)
of this section or in a separate letter.
(g) When VA learns that a bankruptcy petition has been filed with
respect to a debtor, before proceeding with further collection action,
VA should immediately seek legal advice from either VA's General Counsel
or Regional Counsel concerning the impact of the Bankruptcy Code on any
pending or contemplated collection activities. Unless VA determines that
the automatic stay imposed at the time of filing pursuant to 11 U.S.C.
362 has been lifted or is no longer in effect, in most cases collection
activity against the debtor should stop immediately.
(1) After VA seeks legal advice, a proof of claim should be filed in
most cases with the bankruptcy court or the Trustee. VA should refer to
the provisions of 11 U.S.C. 106 relating to the consequences on
sovereign immunity of filing a proof of claim.
(2) If VA is a secured creditor, it may seek relief from the
automatic stay regarding its security, subject to the provisions and
requirements of 11 U.S.C. 362.
(3) Offset is prohibited in most cases by the automatic stay.
However, VA should seek legal advice from VA's General Counsel or
Regional Counsel to determine whether payments to the debtor and
payments of other agencies available for offset may be frozen by VA
until relief from the automatic stay can be obtained from the bankruptcy
court. VA also should seek legal advice from VA's General Counsel or
Regional Counsel to determine whether recoupment is available.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62193, Oct. 25, 2004]
Sec. 1.912 Collection by offset.
(a) Authority and scope. In accordance with the procedures set forth
in 31 CFR 901.3, as well as 31 CFR part 285, VA shall collect debts by
administrative offset from payments made by VA to a debtor indebted to
VA. Also in accordance with 31 CFR 901.3(b), as well as 31 CFR part 285,
VA shall refer past due, legally enforceable non-tax debts which are
over 180 days delinquent to Treasury for collection by centralized
administrative offset (further procedures are set forth in paragraph (g)
of this section). This section does not pertain to offset from either VA
benefit payments made under the authority of 38 U.S.C. 5314 or from
current salary, but does apply to offset from all other VA payments,
including an employee's final salary check and lump-sum leave payment.
Procedures for offset from benefit payments are found in Sec. 1.912a.
Procedures for offset from current Federal salary are found in
Sec. Sec. 1.980 through 1.995. NOTE: VA cannot offset, or refer for the
purpose of offset, either under the authority of this section or under
any other authority found in Sec. Sec. 1.900 through 1.953 and
Sec. Sec. 1.980 through 1.995, any VA home loan program debt described
in 38 U.S.C. 3726 unless the requirements set forth in that section have
been met.
(b) Notification. Prior to initiation of administrative offset, if
not provided in the initial notice of indebtedness, VA is required to
provide the debtor with written notice of:
(1) The nature and amount of the debt;
(2) VA's intention to pursue collection by offset procedures from
the specified VA payment, the date of commencement of offset, and the
exact amount to be offset;
(3) The opportunity to inspect and copy VA records pertaining to the
debt;
(4) The right to contest either the existence or amount of the debt
or the proposed offset schedule, or if applicable, to request a waiver
of collection of the debt, or to request a hearing on any of these
matters;
(5) That commencement of offset will begin, unless the debtor makes
a written request for the administrative relief discussed in paragraph
(b)(4) of this section within 30 days of the date of this notice; and
[[Page 94]]
(6) The oppportunity to enter into a written agreement with VA to
repay the debt in lieu of offset.
(c) Deferral of offset. (1) If the debtor, within 30 days of the
date of the notification required by paragraph (b) of this section,
disputes in writing the existence or amount of the debt or the amount of
the scheduled offset, offset shall not commence until the dispute is
reviewed and a decision is rendered by VA adverse to the debtor.
(2) If the debtor, within 30 days of the date of the required
notification by VA, requests in writing the waiver of collection of the
debt in accordance with Sec. 1.963, Sec. 1.963a, or Sec. 1.964,
offset shall not commence until VA has made an initial decision to deny
the waiver request.
(3) If the debtor, within 30 days of the required notification by
VA, requests in writing a hearing on the issues found in paragraphs
(c)(1) and (2) of this section, offset shall not commence until a
decision is rendered by VA on the issue which is the basis of the
hearing.
(d) Exceptions. (1) Offset may commence prior to either resolution
of a dispute or decision on a waiver request as discussed in paragraph
(c) of this section, if collection of the debt would be jeopardized by
deferral of offset (for example, if VA first learns of the debt when
there is insufficient time before a final payment would be made to the
debtor to allow for prior notice and opportunity for review or waiver
consideration). In such a case, notification pursuant to paragraph (b)
of this section shall be made at the time offset begins or as soon
thereafter as possible. VA shall promptly refund any money that has been
collected that is ultimately found not to have been owed to the
Government.
(2) If the United States has obtained a judgment against the debtor,
offset may commence without the notification required by paragraph (b)
of this section. However, a waiver request filed in accordance with the
time limits and other requirements of Sec. 1.963, Sec. 1.963a, or
Sec. 1.964 will be considered, even if filed after a judgment has been
obtained against the debtor. If waiver is granted, in whole or in part,
refund of amounts already collected will be made in accordance with
Sec. 1.967.
(3) The procedures set forth in paragraph (b) of this section may be
omitted when the debt arises under a contract that provides for notice
and other procedural protections.
(4) Offset may commence without the notification required by
paragraph (b) of this section when the offset is in the nature of a
recoupment. As defined in 31 CFR 900.2(d), recoupment is a special
method for adjusting debts arising under the same transaction or
occurrence.
(e) Hearing. (1) After a debtor requests a hearing, VA shall notify
the debtor of the form of the hearing to be provided; i.e., whether the
hearing will either be oral or paper. If an oral hearing is determined
to be proper by the hearing official, the notice shall set forth the
date, time, and location of the hearing. If the hearing is to be a paper
review, the debtor shall be notified that he or she should submit his or
her position and arguments in writing to the hearing official by a
specified date, after which the record shall be closed. This date shall
give the debtor reasonable time to submit this information.
(2) Unless otherwise required by law, an oral hearing under this
paragraph is not required to be a formal evidentiary type of hearing.
(3) A debtor who requests a hearing shall be provided an oral
hearing if VA determines that the matter cannot be resolved by review of
documentary evidence. Whenever an issue of credibility or veracity is
involved, an oral hearing will always be provided the debtor. For
example, the credibility or veracity of a debtor is always an issue
whenever the debtor requests a waiver of collection of the debt. Thus, a
hearing held in conjunction with a waiver request will always be an oral
hearing. If a determination is made to provide an oral hearing, the
hearing official may offer the debtor the opportunity for a hearing by
telephone conference call. If this offer is rejected or if the hearing
official declines to offer a telephone conference call, the debtor shall
be provided an oral hearing permitting the personal appearance of the
debtor, his
[[Page 95]]
or her personal representative, and witnesses. Witnesses shall testify
under oath or affirmation.
(4) In all other cases where a debtor requests a hearing, a paper
hearing shall be provided. The debtor shall be provided an opportunity
to submit material for the record. A paper hearing shall consist of a
review of the written evidence of record by the designated hearing
official.
(f) Statutes of limitation; multiple debts. When collecting multiple
debts by administrative offset, VA shall apply the recovered amounts to
those debts in accordance with the best interests of the United States,
as determined by the facts and circumstances of the particular case,
paying special attention to applicable statutes of limitation. In
accordance with 31 CFR 901.3(a)(4), VA may not initiate offset to
collect a debt more than 10 years after VA's right to collect the debt
first accrued (with certain exceptions as specified in 31 CFR
901.3(a)(4)).
(g) Centralized administrative offset. (1) When VA refers delinquent
debts to Treasury for centralized administrative offset in accordance
with 31 CFR part 285, VA must certify that:
(i) The debts are past due and legally enforceable; and
(ii) VA has complied with all due process requirements under 31
U.S.C. 3716(a) and paragraphs (b) and (c) of this section.
(2) Payments that are prohibited by law from being offset are exempt
from centralized administrative offset.
(h) Computer Matching and Privacy Act waiver. In accordance with 31
U.S.C. 3716(f), the Secretary of the Treasury may waive the provisions
of the Computer Matching and Privacy Protection Act of 1988 concerning
matching agreements and post-match notification and verification (5
U.S.C. 552a(o) and (p)) for centralized administrative offset upon
receipt of a certification from a creditor agency that the due process
requirements enumerated in 31 U.S.C. 3716(a) and paragraphs (b) and (c)
of this section have been met. The certification of a debt in accordance
with paragraph (g) of this section will satisfy this requirement. If
such a waiver is granted, only the Data Integrity Board of the
Department of the Treasury is required to oversee any matching
activities, in accordance with 31 U.S.C. 3716(g).
(i) Requests by creditor agencies for offset. Unless the offset
would not be in VA's best interest, or would otherwise be contrary to
law, VA will comply with requests by creditor agencies to offset VA
payments (except for current salary or benefit payments) made to a
person indebted to the creditor agency. However, before VA may initiate
offset, the creditor agency must certify in writing to VA that the
debtor has been provided:
(1) Written notice of the type and amount of the debt and the intent
of the creditor agency to use administrative offset to collect the debt;
(2) The opportunity to inspect and copy agency records related to
the debt;
(3) The opportunity for review within the agency of the
determination of the indebtedness; and
(4) The opportunity to make a written agreement to repay the debt.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[52 FR 42105, Nov. 3, 1987, as amended at 54 FR 34980, Aug. 23, 1989; 69
FR 62194, Oct. 25, 2004]
Sec. 1.912a Collection by offset--from VA benefit payments.
(a) Authority and scope. VA shall collect debts governed by Sec.
1.911 of this part by offset against any current or future VA benefit
payments to the debtor. Unless paragraphs (c) or (d) of this section
apply, offset shall commence promptly after notification to the debtor
as provided in paragraph (b) of this section. Certain military service
debts shall be collected by offset against current or future
compensation or pension benefit payments to the debtor under authority
of 38 U.S.C. 5301(c), as provided in paragraph (e) of this section.
(b) Notification. Unless paragraph (d) of this section applies,
offset shall not commence until the debtor has been notified in writing
of the matters described in Sec. 1.911(c) and (d) and paragraph (c) of
this section.
(c) Deferral of offset. (1) If the debtor, within thirty days of the
date of the notification required by paragraph (b) of this section,
disputes, in writing, the
[[Page 96]]
existence or amount of the debt in accordance with Sec. 1.911(c)(1),
offset shall not commence until the dispute is reviewed as provided in
Sec. 1.911(c)(1) and unless the resolution is adverse to the debtor.
(2) If the debtor, within thirty days of the date of notification
required by paragraph (b) of this section, requests, in writing, waiver
of collection in accordance with Sec. 1.963 or Sec. 1.964, as
applicable, offset shall not commence until the Department of Veterans
Affairs has made an initial decision on waiver.
(3) If the debtor, within thirty days of the notification required
by paragraph (b) of this section, requests, in writing, a hearing on the
waiver request, no decision shall be made on the waiver request until
after the hearing has been held.
(4) VA will pursue collection action once an adverse initial
decision is reached on the debtor's request for waiver and/or the
debtor's informal dispute (as described in Sec. 1.911(c)(1)) concerning
the existence or amount of the debt, even if the debtor subsequently
pursues appellate relief in accordance with parts 19 and 20 of this
title.
(d) Exceptions. Offset may commence prior to the resolution of a
dispute or a decision on a waiver request if collection of the debt
would be jeopardized by deferral of offset. In such case, notification
pursuant to Sec. 1.911(d) shall be made at the time offset begins or as
soon thereafter as possible.
(Authority: 38 U.S.C. 5314, Ch. 37)
(e) Offset of military service debts. (1) In accordance with 38
U.S.C. 5301(c), VA shall collect by offset from any current or future
compensation or pension benefits payable to a veteran under laws
administered by VA, the uncollected portion of the amount of any
indebtedness associated with the veteran's participation in a plan
prescribed in subchapter I or II of 10 U.S.C. chapter 73.
(2) Offsets of a veteran's compensation or pension benefit payments
to recoup indebtedness to the military services as described in
paragraph (e)(1) of this section shall only be made by VA when the
military service owed the debt has:
(i) Determined the amount of the indebtedness of the veteran;
(ii) Certified to VA that due process in accordance with the
procedures prescribed in 31 U.S.C. 3716 have been provided to the
veteran; and
(iii) Requested collection of the total debt amount due.
(3) Offset from any compensation or pension benefits under the
authority of 38 U.S.C. 5301(c) shall not exceed 15% of the net monthly
compensation or pension benefit payment. The net monthly compensation or
pension benefit payment is defined as the authorized monthly
compensation or pension benefit payment less all current deductions.
(Authority: 38 U.S.C. 5301(c) and 5314)
[48 FR 1055, Jan. 10, 1983, as amended at 52 FR 42106, Nov. 3, 1987; 57
FR 47263, Oct. 15, 1992; 69 FR 62194, Oct. 25, 2004]
Sec. 1.913 Liquidation of collateral.
(a) VA should liquidate security or collateral through the exercise
of a power of sale in the security instrument or a nonjudicial
foreclosure, and apply the proceeds to the applicable debt, if the
debtor fails to pay the debt within 180 days after demand and if such
action is in the best interest of the United States. Collection from
other sources, including liquidation of security or collateral, is not a
prerequisite to requiring payment by a surety, insurer, or guarantor,
unless such action is expressly required by statute or contract.
(b) When VA learns that a bankruptcy petition has been filed with
respect to a debtor, VA should seek legal advice from VA's General
Counsel or Regional Counsel concerning the impact of the Bankruptcy
Code, including, but not limited to, 11 U.S.C. 362, to determine the
applicability of the automatic stay and the procedures for obtaining
relief from such stay prior to proceeding under paragraph (a) of this
section.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62195, Oct. 25, 2004]
Sec. 1.914 Collection in installments.
(a) Whenever feasible, VA shall collect the total amount of a debt
in one
[[Page 97]]
lump sum. If a debtor is financially unable to pay a debt in one lump
sum, VA may accept payment in regular installments. VA should obtain
financial statements from debtors who represent that they are unable to
pay in one lump sum and independently verify such representations
whenever possible. If VA agrees to accept payments in regular
installments, VA should obtain a legally enforceable written agreement
from the debtor that specifies all of the terms of the arrangement and
contains a provision accelerating the debt in the event of default.
(b) The size and frequency of installment payments should bear a
reasonable relation to the size of the debt and the debtor's ability to
pay. If possible, the installment payments should be sufficient in size
and frequency to liquidate the debt in 3 years or less.
(c) Security for deferred payments should be obtained in appropriate
cases. However, VA may accept installment payments if the debtor refuses
to execute a written agreement or to give security.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62195, Oct. 25, 2004]
Sec. 1.915 Interest, administrative costs, and penalties.
(a) Except as otherwise provided by statute, contract, or other
regulation to the contrary, and subject to 38 U.S.C. 3485(e) and 5302,
VA shall assess:
(1) Interest on all indebtedness to the United States arising out of
participation in a VA benefit, medical care, or home loan program under
authority of Title 38, U.S. Code.
(2) Interest and administrative costs of collection on such debts
described in paragraph (a)(1) of this section where repayment has become
delinquent (as defined in 31 CFR 900.2(b)), and
(3) Interest, administrative costs, and penalties in accordance with
31 CFR 901.9 on all debts other than those described in paragraph (a)(1)
of this section.
(b) Every party entering into an agreement with the Department of
Veterans Affairs for repayment of indebtedness in installments shall be
advised of the interest charges to be added to the debt. All debtors
being provided notice of indebtedness, including those entering into
repayment agreements, shall be advised that upon the debt becoming
delinquent, or in the case of repayment of already delinquent debts,
interest and the administrative costs of collection will be added to the
principal amount of the debt.
(c) The rate of interest charged by VA shall be based on the rate
established annually by the Secretary of the Treasury in accordance with
31 U.S.C. 3717 and shall be adjusted annually by VA on the first day of
the calendar year. Once the rate of interest has been determined for a
particular debt, the rate shall remain in effect throughout the duration
of repayment of that debt. When a debtor defaults on a repayment
agreement and seeks to enter into a new agreement, VA may require
payment of interest at a new rate that reflects the current value of
funds to the Treasury at the time the new agreement is executed.
Interest shall not be compounded, that is, interest shall not be charged
on accrued interest and administrative costs required by this section.
If, however, a debtor defaults on a previous repayment agreement,
interest and administrative costs that accrued but were not collected
under the defaulted agreement shall be added to the principal under the
new agreement.
(d) Interest on amounts covered by this section shall accrue from
the date the initial notice of the debt is mailed to the debtor.
Notification shall be considered sufficient when effected by ordinary
mail, addressed to the last known address, and such notice is not
returned as undeliverable by postal authorities.
(e) Interest under this section shall not be charged if the debt is
paid in full within 30 days of mailing of the initial notice described
in paragraph (b) of this section. Once interest begins to accrue, and
after expiration of the time period for payment of the debt in full to
avoid assessment of interest and administrative costs, any amount
received toward the payment of such debt shall be first applied to
payment of outstanding administrative cost charges and then to accrued
interest or costs, and then to principal, unless a different rule is
prescribed by statute, contract, or other regulation.
[[Page 98]]
(f) All or any part of the interest and administrative costs
assessed under this section are subject to consideration for waiver
under section 5302 of title 38 U.S.C., and appropriate administrative
procedures.
(1) In general, interest and administrative costs may be waived only
when the principal of the debt on which they are assessed is waived by a
Committee on Waivers and Compromises. However, VA may forbear collection
of interest and administrative costs, exclusive of collection of the
principal of the debt on which they are assessed, as well as terminate
further assessment of interest and administrative costs when the
collection of such interest and costs are determined to be not in the
government's best interest. Collection of interest and administrative
costs shall not be considered to be in the best interest of the
government when the amount of assessed interest and administrative cost
is so large that there is a reasonable certainty that the original debt
will never be repaid. The determination to forbear collection of
interest and administrative cost, exclusive of collection of the
principal of the debt, shall be made by the Chief of the Fiscal activity
at the station responsible for the collection of the debt. Such a
determination is not within the jurisdiction of a Committee on Waivers
and Compromises.
(2) [Reserved]
(g) Administrative costs assessed under this section shall be the
average costs of collection of similar debts, or actual collection costs
as may be accurately determined in the particular case. No
administrative costs of collection will be assessed under this section
in any cases where the indebtedness is paid in full prior to the 30-day
period specified in paragraph (e) of this section, or in any case where
a repayment plan is proposed by the debtor and accepted by VA within
that 30-day period, unless such repayment agreement becomes delinquent
(as defined in 31 CFR 900.2(b)).
(Authority: 31 U.S.C. 3717; 38 U.S.C. 501, 5302, 5315)
[46 FR 62057, Dec. 22, 1981, as amended at 52 FR 42107, Nov. 3, 1987.
Redesignated and amended at 69 FR 62195, Oct. 25, 2004]
Sec. 1.916 Disclosure of debt information to consumer reporting
agencies (CRA).
(a) The Department of Veterans Affairs may disclose all information
determined to be necessary, including the name, address, Department of
Veterans Affairs file number, Social Security number, and date of birth,
to consumer reporting agencies for the purpose of--
(1) Obtaining the location of an individual indebted to the United
States as a result of participation in any benefits program administered
by VA or indebted in any other manner to VA;
(2) Obtaining a consumer report in order to assess an individuals
ability to repay a debt when such individual has failed to respond to
the Department's demand for repayment or when such individual has
notified the Department that he/she will not repay the indebtedness; or
(3) Obtaining the location of an individual in order to conduct
program evaluation studies as required by 38 U.S.C. 527 or any other
law.
(b) Information disclosed by the Department of Veterans Affairs
under paragraph (a) of this section to consumer reporting agencies shall
neither expressly nor implicitly indicate that an individual is indebted
to the United States nor shall such information be recorded by consumer
reporting agencies in a manner that reflects adversely upon the
individual. Prior to disclosing this information, the Department of
Veterans Affairs shall ascertain that consumer reporting agencies with
which it contracts are able to comply with this requirement. The
Department of Veterans Affairs shall also make reasonable efforts to
insure compliance by its contractor with this requirement.
(c) Subject to the conditions set forth in paragraph (d) of this
section, information concerning individuals may be disclosed to consumer
reporting agencies for inclusion in consumer reports pertaining to the
individual, or for the purpose of locating the individual. Disclosure of
the fact of indebtedness will be made if the individual fails to respond
in accordance with written demands for repayment, or refuses to repay a
debt to the United States. In
[[Page 99]]
making any disclosure under this section, VA will provide consumer
reporting agencies with sufficient information to identify the
individual, including the individual's name, address, if known, date of
birth, VA file number, and Social Security number.
(d)(1) Prior to releasing information under paragraph (c) of this
section, the Department of Veterans Affairs will send a notice to the
individual. This notice will inform the individual that--
(i) The Department of Veterans Affairs has determined that he or she
is indebted to the Department of Veterans Affairs;
(ii) The debt is presently delinquent; and
(iii) The fact of delinquency may be reported to consumer reporting
agencies after 30 days have elapsed from the date of the notice.
(2)(i) In accordance with Sec. 1.911 and Sec. 1.911a, VA shall
notify each individual of the right to dispute the existence and amount
of the debt and to request a waiver of the debt, if applicable.
(ii) If the Department of Veterans Affairs has not previously
notified the individual of the rights described in paragraph (d)(2)(i)
of this section, the Department of Veterans Affairs will include this
information in the notice described in paragraph (d)(1) of this section.
The individual shall be afforded a minimum of 30 days from the date of
the notice to respond to it before information is reported to consumer
reporting agencies.
(3) The Department of Veterans Affairs will defer reporting
information to a consumer reporting agency if the individual disputes
the existence or amount of any debt or requests waiver of the debt
within the time limits set forth in paragraph (d)(2)(ii) of this
section. The Department of Veterans Affairs will review any dispute and
notify the individual of its findings. If the original decision is
determined to be correct, or if the individual's request for waiver is
denied, the Department of Veterans Affairs may report the fact of
delinquency to a consumer reporting agency. However, the individual
shall be afforded 30 days from date of the notice of the agency's
determination to repay the debt.
(4) Nothing in this section affects an individual's right to appeal
an agency decision to the Board of Veterans Appeals. However,
information concerning the debt may be disclosed while an appeal is
pending before the Board of Veterans Appeals.
(5) Upon request, the Department of Veterans Affairs will notify an
individual--
(i) Whether information concerning a debt has been reported to
consumer reporting agencies;
(ii) Of the name and address of each consumer reporting agency to
which information has been released; and
(iii) Of the specific information released.
A notice of the right to request this information will be sent with the
notice described in paragraph (d)(1) of this section.
(e) Subsequent to disclosure of information to consumer reporting
agencies as described in paragraph (c) of this section, the Department
of Veterans Affairs shall:
(1) Notify on a monthly basis each consumer reporting agency
concerned of any substantial change in the status or amount of
indebtedness.
(2) Promptly verify any and all information disclosed if so
requested by the consumer reporting agency concerned.
(f) In the absence of a different rule prescribed by statute,
contract, or other regulation, an indebtedness is considered delinquent
if not paid by the individual by the date due specified in the notice of
indebtedness, unless satisfactory arrangements are made by such date.
(g) Notification shall be considered sufficient when effected by
ordinary mail, addressed to the last known address, and such notice is
not returned as undeliverable by postal authorities.
(h) The Privacy Act (5 U.S.C. 552a) does not apply to any contract
between the Department of Veterans Affairs and a consumer reporting
agency, nor does it apply to a consumer reporting agency and its
employees. See 38 U.S.C. 5701(i). This paragraph does not relieve the
Department of Veterans Affairs of its obligation to comply with the
Privacy Act.
(i) The term ``consumer reporting agency'' means any person or
agency
[[Page 100]]
which, for monetary fees, dues, or on a cooperative nonprofit basis,
regularly engages in whole or in part in the practice of assembling or
evaluating consumer credit information or other information on consumers
for the purpose of furnishing consumer reports to third parties or to
other consumer reporting agencies. The term ``consumer reporting
agency'' shall also mean any person or agency which serves as a
marketing agent under arrangements enabling third parties to obtain such
information from consumer reporting agencies, or which obtain such
information for the purpose of furnishing it to consumer reporting
agencies.
(Authority: 31 U.S.C. 3711(e); 38 U.S.C. 501, 5701(g) and (i))
[46 FR 62058, Dec. 22, 1981, as amended at 52 FR 42107, Nov. 3, 1987.
Redesignated and amended at 69 FR 62195, Oct. 25, 2004]
Sec. 1.917 Contracting for collection services.
(a) VA has authority to contract for collection services to recover
delinquent debts, provided that:
(1) The authority to resolve disputes, compromise claims, suspend or
terminate collection and refer the matter for litigation shall be
retained by VA;
(2) The contractor shall be subject to 38 U.S.C. 5701, and to the
Privacy Act of 1974, as amended, to the extent specified in 5 U.S.C.
552a(m), and to applicable Federal and State laws and regulations
pertaining to debt collection practices, such as the Fair Debt
Collection Practices Act, 15 U.S.C. 1692 et seq.
(3) The contractor shall be required to strictly account for all
amounts collected;
(4) Upon returning an account to VA for subsequent referral to the
Department of Justice for litigation, the contractor must agree to
provide any data contained in its files relating to Sec. 1.951.
(b) In accordance with 31 U.S.C. 3718(d), or as otherwise permitted
by law, collection service contracts may be funded in the following
manner:
(1) VA may fund a collection service contract on a fixed-fee basis
(i.e., payment of a fixed fee determined without regard to the amount
actually collected under the contract). Payment of the fee under this
type of contract must be charged to available appropriations;
(2) VA may also fund a collection service contract on a contingent-
fee basis (i.e., by including a provision in the contract permitting the
contractor to deduct its fee from amounts collected under the contract).
The fee should be based upon a percentage of the amount collected,
consistent with prevailing commercial practice;
(3) VA may enter into a contract under paragraph (b)(1) of this
section only if and to the extent that funding for the contract is
provided for in advance by an appropriation act or other legislation,
except that this requirement does not apply to the use of a revolving
fund authorized by statute;
(4) Except as authorized under paragraphs (b)(2) and (b)(5) of this
section, or unless otherwise specifically provided by law, VA shall
deposit all amounts recovered under collection service contracts for
Loan Guaranty debts into the Loan Guaranty Revolving Fund, and for all
other debts in the Treasury as miscellaneous receipts pursuant to 31
U.S.C. 3302.
(5) For benefit overpayments recovered under collection service
contract, VA, pursuant to 31 U.S.C. 3302, shall deposit:
(i) Amounts equal to the original overpayments in the appropriations
account from which the overpayments were made, and
(ii) Amount of interest or administrative costs in the Treasury as
miscellaneous receipts.
(c) VA shall use government-wide debt collection contracts to obtain
debt collection services provided by private collection contractors.
However, VA may refer debts to private collection contractors pursuant
to a contract between VA and a private collection contractor only if
such debts are not subject to the requirement to transfer debts to
Treasury for debt collection. See 31 U.S.C. 3711(g), 31 CFR 285.12(e),
and 38 CFR 1.910.
(d) VA may enter into contracts for locating and recovering assets
of the United States, such as unclaimed assets.
(e) VA may enter into contracts for debtor asset and income search
reports. In accordance with 31 U.S.C. 3718(d),
[[Page 101]]
such contracts may provide that the fee a contractor charges the agency
for such services may be payable from the amounts recovered, unless
otherwise prohibited by statute.
(Authority: 31 U.S.C. 3718; 38 U.S.C. 501)
[52 FR 42107, Nov. 3, 1987. Redesignated and amended at 69 FR 62195,
Oct. 25, 2004]
Sec. 1.918 Use and disclosure of mailing addresses.
(a) When attempting to locate a debtor in order to compromise or
collect a debt in accordance with Sec. Sec. 1.900 through 1.953, VA may
send a request to the Secretary of the Treasury, or his/her designee, in
order to obtain the debtor's most current mailing address from the
records of the Internal Revenue Service.
(b) VA is authorized to use mailing addresses obtained under
paragraph (a) of this section to enforce collection of a delinquent debt
and may disclose such mailing addresses to other agencies and to
collection agencies for collection purposes.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[52 FR 42108, Nov. 3, 1987. Redesignated and amended at 69 FR 62196,
Oct. 25, 2004]
Sec. 1.919 Administrative offset against amounts payable from Civil
Service Retirement and Disability Fund, Federal Employees Retirement
System (FERS), final
salary check, and lump sum leave payments.
(a) Unless otherwise prohibited by law or regulation, and in
accordance with 31 CFR 901.3(d), VA may request that money which is due
and payable to a debtor from either the Civil Service Retirement and
Disability Fund or FERS be administratively offset in reasonable amounts
in order to collect, in one full payment or a minimal number of
payments, debts that are owed to VA by the debtor. Such requests shall
be made to the appropriate officials at the Office of Personnel
Management (OPM) in accordance with such regulations prescribed by the
Director of OPM. (See 5 CFR 831.1801 through 831.1808). In addition, VA
may also offset against a Federal employee's final salary check and lump
sum leave payment. See Sec. 1.912 for procedures for offset against a
final salary check and lump sum leave payment.
(b) When making a request to the Office of Personnel Management for
administrative offset under paragraph (a) of this section, VA shall
include a written certification that:
(1) The debtor owes VA a debt, including the amount of the debt;
(2) VA has complied with the applicable statutes, regulations, and
procedures of the Office of Personnel Management; and
(3) VA has complied with Sec. Sec. 1.911, 1.911a, 1.912, 1.912a,
and 31 CFR 901.3, to the extent applicable, including any required
hearing or review.
(c) Once VA decides to request administrative offset from the Civil
Service Retirement and Disability Fund or Federal Employees Retirement
System (FERS) under paragraph (a) of this section, it shall make the
request as soon as possible after completion of the applicable
procedures in order that the Office of Personnel Management may identify
the debtor's account in anticipation of the time when the debtor
requests or becomes eligible to receive payments from the Fund or FERS.
This will satisfy any requirement that offset be initiated prior to
expiration of the applicable statutes of limitations. At such time as
the debtor makes a claim for payments from the Fund or FERS, if at least
a year has elapsed since the offset request was originally made, the
debtor should be permitted to offer a satisfactory repayment plan in
lieu of offset upon establishing that such offset will create financial
hardship.
(d) If VA collects all or part of the debt by other means before
deductions are made or completed in accordance with paragraph (a) of
this section, VA shall promptly act to modify or terminate its request
for offset under paragraph (a) of this section.
(e) The Office of Personnel Management is neither required nor
authorized by this section to review the merits of VA's determination
with respect to the amount and validity of the debt waiver under 5
U.S.C. 5584 or 38 U.S.C. 5302, or
[[Page 102]]
providing or not providing an oral hearing.
(Authority: 5 U.S.C. 8461; 31 U.S.C. 3711, 3716; 38 U.S.C. 501)
[52 FR 42108, Nov. 3, 1987. Redesignated and amended at 69 FR 62196,
Oct. 25, 2004]
Sec. 1.920 Referral of VA debts.
(a) When authorized, VA may refer an uncollectible debt to another
Federal or State agency for the purpose of collection action. Collection
action may include the offsetting of the debt from any current or future
payment, except salary (see paragraph (e) of this section), made by such
Federal or State agency to the person indebted to VA.
(b) VA must certify in writing that the individual owes the debt,
the amount and basis of the debt, the date on which payment became due,
and the date VA's right to collect the debt first accrued.
(c) This certification will also state that VA provided the debtor
with written notice of:
(1) The nature and amount of the debt;
(2) VA's intention to pursue collection by offset procedures;
(3) The opportunity to inspect and copy VA records pertaining to the
debt;
(4) The right to contest both the existence and amount of the debt
and to request a waiver of collection of the debt (if applicable), as
well as the right to a hearing on both matters;
(5) The opportunity to enter into a written agreement with VA for
the repayment of the debt; and
(6) Other applicable notices required by Sec. Sec. 1.911, 1.911a,
1.912, and 1.912a.
(d) The written certification required by paragraphs (b) and (c) of
this section will also contain (for all debts) a listing of all actions
taken by both VA and the debtor subsequent to the notice, as well as the
dates of such actions.
(e) The referral by VA of a VA debt to another agency for the
purpose of salary offset shall be done in accordance with 38 CFR 1.980
through 1.995 and regulations prescribed by the Director of the Office
of Personnel Management (OPM) in 5 CFR part 550, subpart K.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[52 FR 42108, Nov. 3, 1987. Redesignated and amended at 69 FR 62196,
Oct. 25, 2004]
Sec. 1.921 Analysis of costs.
VA collection procedures should provide for periodic comparison of
costs incurred and amounts collected. Data on costs and corresponding
recovery rates for debts of different types and in various dollar ranges
should be used to compare the cost effectiveness of alternative
collection techniques, establish guidelines with respect to points at
which costs of further collection efforts are likely to exceed
recoveries, assist in evaluating offers in compromise, and establish
minimum debt amounts below which collection efforts need not be taken.
(Authority: 31 U.S.C. 3711-3719; 38 U.S.C. 501)
[69 FR 62196, Oct. 25, 2004]
Sec. 1.922 Exemptions.
(a) Sections 1.900 through 1.953, to the extent they reflect
remedies or procedures prescribed by the Debt Collection Act of 1982 and
the Debt Collection Improvement Act of 1996, such as administrative
offset, use of credit bureaus, contracting for collection agencies, and
interest and related charges, do not apply to debts arising under, or
payments made under, the Internal Revenue Code of 1986, as amended (26
U.S.C. 1 et seq.); the Social Security Act (42 U.S.C. 301 et seq.),
except to the extent provided under 42 U.S.C. 404 and 31 U.S.C. 3716(c);
or the tariff laws of the United States. These remedies and procedures,
however, may be authorized with respect to debts that are exempt from
the Debt Collection Act of 1982 and the DCIA of 1996, to the extent that
they are authorized under some other statute or the common law.
(b) This section should not be construed as prohibiting the use of
Sec. Sec. 1.900 through 1.953 when collecting debts owed by persons
employed by agencies administering the laws cited in paragraph (a) of
this section unless the debt arose under those laws.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62196, Oct. 25, 2004]
[[Page 103]]
Sec. 1.923 Administrative wage garnishment.
(a) In accordance with the procedures set forth in 31 U.S.C. 3720D
and 31 CFR 285.11, VA or Treasury may request that a non-Federal
employer garnish the disposable pay of an individual to collect
delinquent non-tax debt owed to VA. VA may pursue wage garnishment
independently in accordance with this section or VA or Treasury may
pursue garnishment after VA refers a debt to Treasury in accordance with
Sec. 1.910 of this part and 31 CFR 285.12. For the purposes of this
section, any reference to Treasury also includes any private collection
agency under contract to Treasury.
(b) At least 30 days prior to the initiation of garnishment
proceedings, VA or Treasury shall send a written notice, as described in
31 CFR 285.11(e), by first class mail to the debtor's last known
address. This notice shall inform the debtor of:
(1) The nature and amount of the debt;
(2) The intention of VA or Treasury to initiate proceedings to
collect the debt through deductions from the debtor's pay until the debt
and all accumulated interest, and other late payment charges, are paid
in full, and;
(3) An explanation of the debtor's rights, including the
opportunity:
(i) To inspect and copy VA records pertaining to the debt;
(ii) To enter into a written repayment agreement with VA or Treasury
under terms agreeable to VA or Treasury, and;
(iii) To a hearing in accordance with 31 CFR 285.11(f) and paragraph
(c) of this section concerning the existence or amount of the debt or
the terms of the proposed repayment schedule under the garnishment
order. However, the debtor is not entitled to a hearing concerning the
terms of the proposed repayment schedule if these terms have been
established by written agreement under paragraph (b)(3)(ii) of this
section.
(c) Any hearing conducted as part of the administrative wage
garnishment process shall be conducted by the designated hearing
official in accordance with the procedures set forth in 31 CFR
285.11(f). This hearing official may be any VA hearing official. This
hearing official may also conduct administrative wage garnishment
hearings for other Federal agencies.
(1) The hearing may be oral or written as determined by the
designated hearing official. The hearing official shall provide the
debtor with a reasonable opportunity for an oral hearing when the
hearing official determines that the issue in dispute cannot be resolved
by review of documentary evidence, for example, when the validity of the
claim turns on the issue of credibility or veracity. The hearing
official shall establish the time and place of any oral hearing. At the
debtor's option, an oral hearing may be conducted either in person or by
telephone conference call. A hearing is not required to be a formal,
evidentiary-type hearing, but witnesses who testify in oral hearings
must do so under oath or affirmation. While it is not necessary to
produce a transcript of the hearing, the hearing official must maintain
a summary record of the proceedings. All travel expenses incurred by the
debtor in connection with an in-person hearing shall be borne by the
debtor. VA or Treasury shall be responsible for all telephone expenses.
In the absence of good cause shown, a debtor who fails to appear at a
hearing will be deemed as not having timely filed a request for a
hearing.
(2) If the hearing official determines that an oral hearing is not
necessary, then he/she shall afford the debtor a ``paper hearing.'' In a
``paper hearing,'' the hearing official will decide the issues in
dispute based upon a review of the written record.
(3) If the debtor's written request for a hearing is received by
either VA or Treasury within 15 business days following the mailing of
the notice described in paragraph (b) of this section, then VA or
Treasury shall not issue a withholding order as described in paragraph
(d) of this section until the debtor is afforded the requested hearing
and a decision rendered. If the debtor's written request for a hearing
is not received within 15 business days following the mailing of the
notice described in paragraph (b) of this section, then the hearing
official shall provide a hearing to the debtor, but will not
[[Page 104]]
delay issuance of a withholding order as described in paragraph (d) of
this section, unless the hearing official determines that the delay in
filing was caused by factors beyond the debtor's control.
(4) The hearing official shall notify the debtor of:
(i) The date and time of a telephone conference hearing;
(ii) The date, time, and location of an in-person oral hearing, or;
(iii) The deadline for the submission of evidence for a written
hearing.
(5) Except as provided in paragraph (c)(6)of this section, VA or
Treasury shall have the burden of going forward to prove the existence
or amount of the debt, after which the debtor must show, by a
preponderance of the evidence, that no debt exists or that the amount of
the debt is incorrect. In general, this means that the debtor must show
that it is more likely than not that a debt does not exist or that the
amount of the debt is incorrect. The debtor may also present evidence
that terms of the repayment agreement are unlawful, would cause a
financial hardship, or that collection of the debt may not be pursued
due to operation of law.
(6) If the debtor has previously contested the existence and/or
amount of the debt in accordance with Sec. 1.911(c)(1) or Sec.
1.911a(c)(1) and VA subsequently rendered a decision upholding the
existence or amount of the debt, then such decision shall be
incorporated by reference and become the basis of the hearing official's
decision on such matters.
(7) The hearing official shall issue a written decision as soon as
practicable, but not later than 60 days after the date on which the
request for such hearing was received by VA or Treasury. The decision
will be the final action for the purposes of judicial review under the
Administrative Procedure Act (5 U.S.C. 701 et seq.). The decision shall
include:
(i) A summary of the facts presented;
(ii) The hearing official's findings, analysis, and conclusions,
and;
(iii) The terms of the repayment schedule, if applicable.
(d) In accordance with 31 CFR 285.11(g) and (h), VA or Treasury
shall send a Treasury-approved withholding order and certification form
by first class mail to the debtor's employer within 30 days after the
debtor fails to make a timely request for a hearing. If a timely request
for a hearing has been filed by the debtor, then VA or Treasury shall
send a withholding order and certification form by first class mail to
the debtor's employer within 30 days after a final decision is made to
proceed with the garnishment. The employer shall complete and return the
certification form as described in 31 CFR 285.11(h).
(e) After receipt of the garnishment order, the employer shall
withhold the amount of garnishment as described in 31 CFR 285.11(i) from
all disposable pay payable to the applicable debtor during each pay
period.
(f) A debtor whose wages are subject to a wage withholding order
under 31 CFR 285.11 may request a review, under the procedures set forth
in 31 CFR 285.11(k), of the amount garnished. A request for review shall
only be considered after garnishment has been initiated. The request
must be based on materially changed circumstances such as disability,
divorce, or catastrophic illness which result in financial hardship that
limit the debtor's ability to provide food, housing, clothing,
transportation, and medical care for himself/herself and his/her
dependents.
(Authority: 31 U.S.C. 3720D; 38 U.S.C. 501; 31 CFR 285.11)
[69 FR 62196, Oct. 25, 2004, as amended at 72 FR 65462, Nov. 21, 2007]
Sec. 1.924 Suspension or revocation of eligibility for federal loans,
loan insurance, loan guarantees, licenses, permits, or privileges.
(a) In accordance with 31 U.S.C. 3720B and the procedures set forth
in 31 CFR 285.13 and Sec. 901.6, a person owing an outstanding non-tax
debt that is in delinquent status shall not be eligible for Federal
financial assistance unless exempted under paragraph (d) of this section
or waived under paragraph (e) of this section.
(b) Federal financial assistance or financial assistance means any
Federal loan (other than a disaster loan), loan insurance, or loan
guarantee.
(c) For the purposes of this section only, a debt is in a delinquent
status if
[[Page 105]]
the debt has not been paid within 90 days of the payment due date or by
the end of any grace period provided by statute, regulation, contract,
or agreement. The payment due date is the date specified in the initial
written demand for payment. Further guidance concerning the delinquent
status of a debt may be found at 31 CFR 285.13(d).
(d) Upon the written request and recommendation of the Secretary of
Veterans Affairs, the Secretary of the Treasury may grant exemptions
from the provisions of this section. The standards for exemptions
granted for classes of debts are set forth in 31 CFR 285.13(f).
(e)(1) VA's Chief Financial Officer or Deputy Chief Financial
Officer may waive the provisions of paragraph (a) of this section only
on a person-by-person basis.
(2) The Chief Financial Officer or Deputy Chief Financial Officer
should balance the following factors when deciding whether to grant a
waiver:
(i) Whether the denial of the financial assistance to the person
would tend to interfere substantially with or defeat the purposes of the
financial assistance program or otherwise would not be in the best
interests of the Federal government; and
(ii) Whether the granting of the financial assistance to the person
is contrary to the government's goal of reducing losses by requiring
proper screening of potential borrowers.
(3) When balancing the factors described in paragraph (e)(2)(i) and
(e)(2)(ii) of this section, the Chief Financial Officer or Deputy Chief
Financial Officer should consider:
(i) The age, amount, and cause(s) of the delinquency and the
likelihood that the person will resolve the delinquent debt; and
(ii) The amount of the total debt, delinquent or otherwise, owed by
the person and the person's credit history with respect to repayment of
debt.
(4) A centralized record shall be retained of the number and type of
waivers granted under this section.
(f) In non-bankruptcy cases, in seeking the collection of statutory
penalties, forfeitures, or other similar types of claims, VA may suspend
or revoke any license, permit, or other privilege granted a debtor when
the debtor inexcusably or willfully fails to pay such a debt. The debtor
should be advised in VA's written demand for payment of VA's ability to
suspend or revoke licenses, permits, or privileges. VA may suspend or
disqualify any lender, contractor, or broker who is engaged in making,
guaranteeing, insuring, acquiring, or participating in loans from doing
further business with VA or engaging in programs sponsored by VA if such
lender, contractor, or broker fails to pay its debts to the Government
within a reasonable time, or if such lender, contractor, or broker has
been suspended, debarred, or disqualified from participation in a
program or activity by another Federal agency. The failure of any surety
to honor its obligations in accordance with 31 U.S.C. 9305 should be
reported to Treasury.
(g) In bankruptcy cases, before advising the debtor of the intention
to suspend or revoke licenses, permits, or privileges, VA should seek
legal advice from VA's General Counsel or Regional Counsel concerning
the impact of the Bankruptcy Code, particularly 11 U.S.C. 362 and 525,
which may restrict such action.
(Authority: 31 U.S.C. 3720B; 38 U.S.C. 501)
[69 FR 62197, Oct. 25, 2004]
Sec. 1.929 Reduction of debt through performance of work-study services.
(a) Scope. (1) Subject to the provisions of this section VA may
allow an individual to reduce an indebtedness to the United States
through offset of benefits to which the individual becomes entitled by
performance of work-study services under 38 U.S.C. 3485 and 3537 when
the debt arose by virtue of the individual's participation in a benefits
program provided under any of the following:
(i) 38 U.S.C. chapter 30;
(ii) 38 U.S.C. chapter 31;
(iii) 38 U.S.C. chapter 32;
(iv) 38 U.S.C. chapter 34;
(v) 38 U.S.C. chapter 35;
(vi) 38 U.S.C. chapter 36 (other than an education loan provided
under subpart F, part 21 of this title); or
[[Page 106]]
(vii) 10 U.S.C. chapter 1606 (other than an indebtedness arising
from a refund penalty imposed under 10 U.S.C. 16135).
(2) This section shall not apply in any case in which the individual
has a pending request for waiver of the debt under Sec. Sec. 1.950
through 1.970.
(Authority: 38 U.S.C. 3485(e)(1); Pub. L. 102-16)
(b) Selection criteria. (1) If there are more candidates for a work-
study allowance than there are work-study positions available in the
area in which the services are to be performed, VA will give priority to
the candidates who are pursuing a program of education or
rehabilitation.
(2) Only after all candidates in the area described in paragraph
(b)(1) of this section either have been given work-study contracts or
have withdrawn their request for contracts will VA offer contracts to
those who are not pursuing a program of education or rehabilitation and
who wish to reduce their indebtedness through performance of work-study
services.
(3) VA shall not offer a contract to an individual who is receiving
compensation from another source for the work-study services the
individual wishes to perform.
(4) VA shall not offer a contract to an individual if VA determines
that the debt can be collected through other means such as collection in
a lump sum, collection in installments as provided in Sec. 1.917 or
compromise as provided in Sec. 1.918.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
(c) Utilization. The work-study services to be performed under a
debt-liquidation contract will be limited as follows:
(1) If the individual is concurrently receiving educational
assistance in a program administered by VA, work-study services are
limited to those allowed in the educational program under which the
individual is receiving benefits.
(2) If the individual is not concurrently receiving educational
assistance in a program administered by VA, the individual may perform
only those work-study services and activities which are or were open to
those students receiving a work-study allowance while pursuing a program
of education pursuant to the chapter under which the debt was incurred.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
(d) Contract to perform services. (1) The work-study services
performed to reduce indebtedness shall be performed pursuant to a
contract between the individual and VA.
(2) The individual shall perform the work-study services required by
the contract at the place or places designated by VA.
(3) The number of hours of services to be performed under the
contract must be sufficient to enable the individual to become entitled
to a sum large enough to liquidate the debt by offset.
(4) The number of weeks in the contract will not exceed the lesser
of--
(i) The number of weeks of services the individual needs to perform
to liquidate his or her debt; or
(ii) 52.
(5) In determining the number of hours per week and the number of
weeks under paragraphs (d)(3) and (d)(4) of this section necessary to
liquidate the debt, VA will use the amount of the account receivable,
including all accrued interest, administrative costs and marshall fees
outstanding on the date the contract is offered to the individual and
all accrued interest, administrative costs and marshall fees VA
estimates will have become outstanding on the debt on the date the debt
is to be liquidated.
(6) The contract will automatically terminate after the total amount
of the individual's indebtedness described in paragraph (d)(5) of this
section has been recouped, waived, or otherwise liquidated. An
individual performing work-study services under a contract to liquidate
a debt is released from the contract if the debt is liquidated by other
means.
(7) The contract to perform work-study services for the purpose of
liquidating indebtedness will be terminated if:
(i) The individual is liquidating his or her debt under this section
while receiving either an educational assistance allowance for further
pursuit of a
[[Page 107]]
program of education or a subsistence allowance for further pursuit of a
program of rehabilitation;
(ii) The individual terminates or reduces the rate of pursuit of his
or her program of education or rehabilitation; and
(iii) The termination or reduction causes an account receivable as a
debt owed by the individual.
(8) VA may terminate the contract at any time the individual fails
to perform the services required by the contract in a satisfactory
manner.
(Authority: 38 U.S.C. 3485(e), 7104(a); Pub. L. 102-16)
(e) Reduction of indebtedness. (1) In return for the individual's
agreement to perform hours of services totaling not more than 40 times
the number of weeks in the contract, VA will reduce the eligible
person's outstanding indebtedness by an amount equal to the higher of--
(i) The hourly minimum wage in effect under section 6(a) of the Fair
Labor Standards Act of 1938 times the number of hours the individual
works; or
(ii) The hourly minimum wage under comparable law of the State in
which the services are performed times the number of hours the
individual works.
(2) VA will reduce the individual's debt by the amount of the money
earned for the performance of work-study services after the completion
of each 50 hours of services (or in the case of any remaining hours
required by the contract, the amount for those hours).
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
(f) Suspension of collections by offset. Notwithstanding the
provisions of Sec. 1.912a, during the period covered by the work-study
debt-liquidation contract with the individual, VA will ordinarily
suspend the collection by offset of a debt described in paragraph (a)(1)
of this section. However, the individual may voluntarily permit VA to
collect part of the debt through offset against other benefits payable
while the individual is performing work-study services. If the contract
is terminated before its scheduled completion date, and the debt has not
been liquidated, collection through offset against other benefits
payable will resume on the date the contract terminates.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
(g) Payment for additional hours. (1) If an individual, without
fault on his or her part, performs work-study services for which payment
may not be authorized, including services performed after termination of
the contract, VA will pay the individual at the applicable hourly
minimum wage for such services as the Director of the VA field station
of jurisdiction determines were satisfactorily performed.
(2) The Director of the VA field station of jurisdiction shall
determine whether the individual was without fault. In making this
decision he or she shall consider all evidence of record and any
additional evidence which the individual wishes to submit.
(Authority: 38 U.S.C. 3485(e); Pub. L. 102-16)
[62 FR 15401, Apr. 1, 1997]
Standards for Compromise of Claims
Authority: Sections 1.900 through 1.953 are issued under the
authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, and as noted
in specific sections.
Source: 32 FR 2614, Feb. 8, 1967, unless otherwise noted.
Sec. 1.930 Scope and application.
(a) The standards set forth in Sec. Sec. 1.930 through 1.936 of
this part apply to the compromise of debts pursuant to 31 U.S.C. 3711.
VA may exercise such compromise authority when the amount of the debt
due, exclusive of interest, penalties, and administrative costs, does
not exceed $100,000 or any higher amount authorized by the Attorney
General.
(b) Unless otherwise provided by law, when the principal balance of
a debt, exclusive of interest, penalties, and administrative costs,
exceeds $100,000 or any higher amount authorized by the Attorney
General, the authority to accept the compromise rests with the
Department of Justice (DOJ). If VA receives an offer to compromise any
debt in excess of $100,000, VA should evaluate the compromise offer
using the same factors as set forth in Sec. 1.931 of this part. If VA
believes the offer has
[[Page 108]]
merit, it shall refer the debt to the Civil Division or other
appropriate division in DOJ using a Claims Collection Litigation Report
(CCLR). The referral shall include appropriate financial information and
a recommendation for the acceptance of the compromise offer. DOJ
approval is not required if VA decides to reject a compromise offer.
(c) The $100,000 limit in paragraph (b) of this section does not
apply to debts that arise out of participation in a VA loan program
under Chapter 37 of Title 38 of the U.S. Code. VA has unlimited
authority to compromise debts arising out of participation in a Chapter
37 loan program, regardless of the amount of the debt.
(Authority: 31 U.S.C. 3711; 38 U.S.C 501, 3720)
[69 FR 62198, Oct. 25, 2004]
Sec. 1.931 Bases for compromise.
(a) VA may compromise a debt if it cannot collect the full amount
because:
(1) The debtor is unable to pay the full amount in a reasonable
time, as verified through credit reports or other financial information;
(2) VA is unable to collect the debt in full within a reasonable
time by enforced collection proceedings;
(3) The cost of collecting the debt does not justify the enforced
collection of the full amount; or
(4) There is significant doubt concerning VA's ability to prove its
case in court.
(b) In determining the debtor's inability to pay, VA will consider
relevant factors such as the following:
(1) Age and health of the debtor;
(2) Present and potential income;
(3) Inheritance prospects;
(4) The possibility that assets have been concealed or improperly
transferred by the debtor; and
(5) The availability of assets or income that may be realized by
enforced collection proceedings.
(c) VA will verify the debtor's claim of inability to pay by using a
credit report and other financial information as provided in paragraph
(g) of this section. VA should consider the applicable exemptions
available to the debtor under State and Federal law in determining the
ability to enforce collection. VA also may consider uncertainty as to
the price that collateral or other property will bring at a forced sale
in determining the ability to enforce collection. A compromise effected
under this section should be for an amount that bears a reasonable
relation to the amount that can be recovered by enforced collection
procedures, with regard to the exemptions available to the debtor and
the time that collection will take.
(d) If there is significant doubt concerning VA's ability to prove
its case in court for the full amount claimed, either because of the
legal issues involved or because of a bona fide dispute as to the facts,
then the amount accepted in compromise of such cases should fairly
reflect the probabilities of successful prosecution to judgment, with
due regard given to the availability of witnesses and other evidentiary
support for VA's claim. In determining the risks involved in litigation,
VA will consider the probable amount of court costs and attorney fees
pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412, that may be
imposed against the Government if it is unsuccessful in litigation.
(e) VA may compromise a debt if the cost of collecting the debt does
not justify the enforced collection of the full amount. The amount
accepted in compromise in such cases may reflect an appropriate discount
for the administrative and litigative costs of collection, with
consideration given to the time it will take to effect collection.
Collection costs may be a substantial factor in the settlement of small
debts. In determining whether the cost of collecting justifies enforced
collection of the full amount, VA will consider whether continued
collection of the debt, regardless of cost, is necessary to further an
enforcement principle.
(f) VA generally will not accept compromises payable in
installments. If, however, payment of a compromise in installments is
necessary, VA will obtain a legally enforceable written agreement
providing that, in the event of default, the full original principal
balance of the debt prior to compromise, less sums paid thereon, is
reinstated. Whenever possible, VA will also obtain security for
repayment.
[[Page 109]]
(g) To assess the merits of a compromise offer based in whole or in
part on the debtor's inability to pay the full amount of a debt within a
reasonable time, VA will obtain a current financial statement from the
debtor showing the debtor's assets, liabilities, income, and expenses.
Agencies also may obtain credit reports or other financial information
to assess compromise offers.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720)
[69 FR 62198, Oct. 25, 2004]
Sec. 1.932 Enforcement policy.
VA may compromise statutory penalties, forfeitures, or claims
established as an aid to enforcement and to compel compliance, if VA's
enforcement policy in terms of deterrence and securing compliance,
present and future, will be adequately served by VA's acceptance of the
sum to be agreed upon.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720)
[69 FR 62198, Oct. 25, 2004]
Sec. 1.933 Joint and several liability.
(a) When two or more debtors are jointly and severally liable, VA
will pursue collection activity against all debtors, as appropriate. VA
will not attempt to allocate the burden of payment between the debtors
but should proceed to liquidate the indebtedness as quickly as possible.
(b) VA will ensure that a compromise agreement with one debtor does
not release VA's claim against the remaining debtors. The amount of a
compromise with one debtor shall not be considered a precedent or
binding in determining the amount that will be required from other
debtors jointly and severally liable on the claim.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720)
[69 FR 62198, Oct. 25, 2004]
Sec. 1.934 Further review of compromise offers.
If VA is uncertain whether to accept a firm, written, substantive
compromise offer on a debt that is within its delegated compromise
authority, it may refer the offer to VA General Counsel or Regional
Counsel or to the Civil Division or other appropriate division in the
Department of Justice (DOJ), using a Claims Collection Litigation Report
(CCLR) accompanied by supporting data and particulars concerning the
debt. DOJ may act upon such an offer or return it to the agency with
instructions or advice.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720)
[69 FR 62198, Oct. 25, 2004]
Sec. 1.935 Consideration of tax consequences to the Government.
In negotiating a compromise, VA will consider the tax consequences
to the Government. In particular, VA will consider requiring a waiver of
tax-loss-carry-forward and tax-loss-carry-back rights of the debtor.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720)
[69 FR 62198, Oct. 25, 2004]
Sec. 1.936 Mutual releases of the debtor and VA.
In all appropriate instances, a compromise that is accepted by VA
shall be implemented by means of a mutual release, in which the debtor
is released from further non-tax liability on the compromised debt in
consideration of payment in full of the compromise amount, and VA and
its officials, past and present, are released and discharged from any
and all claims and causes of action that the debtor may have arising
from the same transaction. In the event a mutual release is not executed
when a debt is compromised, unless prohibited by law, the debtor is
still deemed to have waived any and all claims and causes of action
against VA and its officials related to the transaction giving rise to
the compromised debt.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720)
[69 FR 62198, Oct. 25, 2004]
Standards for Suspending or Terminating Collection Action
Authority: Sections 1.900 through 1.953 are issued under the
authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, and as noted
in specific sections.
Source: 32 FR 2615, Feb. 8, 1967, unless otherwise noted.
[[Page 110]]
Sec. 1.940 Scope and application.
Except as otherwise provided in Sec. 1.945:
(a) The standards set forth in Sec. Sec. 1.940 through 1.944 apply
to the suspension or termination of collection activity pursuant to 31
U.S.C. 3711 on debts that do not exceed $100,000, or such other amount
as the Attorney General may direct, exclusive of interest, penalties,
and administrative costs, after deducting the amount of partial payments
or collections, if any. Prior to referring a debt to the Department of
Justice (DOJ) for litigation, VA may suspend or terminate collection
under this part with respect to the debt.
(b) If, after deducting the amount of any partial payments or
collections, the principal amount of a debt exceeds $100,000, or such
other amount as the Attorney General may direct, exclusive of interest,
penalties, and administrative costs, the authority to suspend or
terminate rests solely with DOJ. If VA believes that suspension or
termination of any debt in excess of $100,000 may be appropriate, it
shall refer the debt to the Civil Division or other appropriate division
in DOJ, using the Claims Collection Litigation Report (CCLR). The
referral should specify the reasons for VA's recommendation. If, prior
to referral to DOJ, VA determines that a debt is plainly erroneous or
clearly without legal merit, VA may terminate collection activity
regardless of the amount involved without obtaining DOJ concurrence.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62199, Oct. 25, 2004, as amended at 75 FR 53201, Aug. 31, 2010]
Sec. 1.941 Suspension of collection activity.
(a) VA may suspend collection activity on a debt when:
(1) It cannot locate the debtor;
(2) The debtor's financial condition is expected to improve; or
(3) The debtor has requested a waiver or review of the debt.
(b) Based on the current financial condition of the debtor, VA may
suspend collection activity on a debt when the debtor's future prospects
justify retention of the debt for periodic review and collection
activity and:
(1) The applicable statute of limitations has not expired; or
(2) Future collection can be effected by administrative offset,
notwithstanding the expiration of the applicable statute of limitations
for litigation of claims, and with due regard to the 10-year limitation
for administrative offset prescribed by 31 U.S.C. 3716(e)(1); or
(3) The debtor agrees to pay interest on the amount of the debt on
which collection will be suspended, and such suspension is likely to
enhance the debtor's ability to pay the full amount of the principal of
the debt with interest at a later date.
(c) Collection action may also be suspended, in accordance with
Sec. Sec. 1.911, 1.911a, 1.912, and 1.912a, pending VA action on
requests for administrative review of the existence or amount of the
debt or a request for waiver of collection of the debt. However,
collection action will be resumed once VA issues an initial decision on
the administrative review or waiver request.
(d) When VA learns that a bankruptcy petition has been filed with
respect to a debtor, in most cases the collection activity on a debt
must be suspended, pursuant to the provisions of 11 U.S.C. 362, 1201,
and 1301, unless VA can clearly establish that the automatic stay does
not apply, has been lifted, or is no longer in effect. VA shall seek
legal advice immediately from either the VA General Counsel or Regional
Counsel and, if legally permitted, take the necessary steps to ensure
that no funds or money are paid by VA to the debtor until relief from
the automatic stay is obtained.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62199, Oct. 25, 2004]
Sec. 1.942 Termination of collection activity.
Termination of collection activity involves a final determination.
Collection activity may be terminated on cases previously suspended. The
Department of Veterans Affairs may terminate collection activity and
consider closing the agency file on a claim which meets any one of the
following standards:
[[Page 111]]
(a) Inability to collect any substantial amount. Collection action
may be terminated on a claim when it becomes clear that VA cannot
collect or enforce collection of any significant amount from the debtor,
having due regard for the judicial remedies available to the agency, the
debtor's future financial prospects, and the exemptions available to the
debtor under State and Federal law. In determining the debtor's
inability to pay, the following factors, among others, shall be
considered: Age and health of the debtor, present and potential income,
inheritance prospects, the possibility that assets have been concealed
or improperly transferred by the debtor, the availability of assets or
income which may be realized by means of enforced collection
proceedings.
(b) Inability to locate debtor. The debtor cannot be located, no
security remains to be liquidated, the applicable statute of limitations
has run, and the prospects of collecting by offset are too remote.
(c) Death of debtor. The debtor is determined to be deceased and the
Government has no prospect of collection from his/her estate.
(d) Cost will exceed recovery. The cost of further collection effort
is likely to exceed the amount recoverable.
(e) Claim legally without merit. Collection action should be
terminated on a claim whenever it is determined that the claim is
legally without merit.
(f) Claim cannot be substantiated by evidence. VA will terminate
collection action on once asserted claims because of lack of evidence or
unavailability of witnesses only in cases where efforts to induce
voluntary payment are unsuccessful.
(g) Discharge in bankruptcy. Generally, VA shall terminate
collection activity on a debt that has been discharged in bankruptcy,
regardless of the amount. VA may continue collection activity, subject
to the provisions of the Bankruptcy Code, for any payments provided
under a plan of reorganization. Offset and recoupment rights may survive
the discharge of the debtor in bankruptcy and, under some circumstances,
claims also may survive the discharge.
(h) Before terminating collection activity, VA should have pursued
all appropriate means of collection and determined, based upon the
results of the collection activity, that the debt is uncollectible.
Termination of collection activity ceases active collection of the debt.
The termination of collection activity does not preclude VA from
retaining a record of the account for purposes of:
(1) Selling the debt, if the Secretary of the Treasury determines
that such sale is in the best interests of the United States;
(2) Pursuing collection at a subsequent date in the event there is a
change in the debtor's status or a new collection tool becomes
available;
(3) Offsetting against future income or assets not available at the
time of termination of collection activity; or
(4) Screening future applicants for prior indebtedness.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[32 FR 2615, Feb. 8, 1967, as amended at 52 FR 42111, Nov. 3, 1987; 69
FR 62200, Oct. 25, 2004]
Sec. 1.943 Exception to termination.
When a significant enforcement policy is involved, or recovery of a
judgment is a prerequisite to the imposition of administrative
sanctions, VA may refer debts for litigation even though termination of
collection activity may otherwise be appropriate.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62200, Oct. 25, 2004]
Sec. 1.944 Discharge of indebtedness; reporting requirements.
(a) Before discharging a delinquent debt (also referred to as a
close out of the debt), VA shall take all appropriate steps to collect
the debt in accordance with 31 U.S.C. 3711(g), including, as applicable,
administrative offset, tax refund offset, Federal salary offset,
referral to Treasury or Treasury-designated debt collection centers or
private collection contractors, credit bureau reporting, wage
garnishment, litigation, and foreclosure. Discharge of indebtedness is
distinct from termination or suspension of collection activity under
Sec. Sec. 1.940 through 1.943 and is governed by the Internal Revenue
Code (see 26 U.S.C. 6050P). When collection action
[[Page 112]]
on a debt is suspended or terminated, the debt remains delinquent and
further collection action may be pursued at a later date in accordance
with the standards set forth in Sec. Sec. 1.900 through 1.953. When VA
discharges a debt in full or in part, further collection action is
prohibited. Therefore, VA should make the determination that collection
action is no longer warranted before discharging a debt. Before
discharging a debt, VA must terminate debt collection action.
(b) Upon discharge of an indebtedness, VA must report the discharge
to the Internal Revenue Service (IRS) in accordance with the
requirements of 26 U.S.C. 6050P and 26 CFR 1.6050P-1. VA may request
Treasury or Treasury-designated debt collection centers to file such a
discharge report to the IRS on VA's behalf.
(c) When discharging a debt, VA must request that any liens of
record securing the debt be released.
(d) 31 U.S.C. 3711(i)(2) requires agencies to sell a delinquent
nontax debt upon termination of collection action if the Secretary of
the Treasury determines such a sale is in the best interests of the
United States. Since the discharge of a debt precludes any further
collection action (including the sale of a delinquent debt), VA may not
discharge a debt until the requirements of Sec. 3711(i)(2) have been
met.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62200, Oct. 25, 2004]
Sec. 1.945 Authority to suspend or terminate collection action on
certain benefit indebtedness; authority for refunds.
(a) The Secretary of Veterans Affairs (Secretary) may suspend or
terminate collection action on all or any part of an indebtedness owed
to VA by a member of the Armed Forces who dies while on active duty, if
the Secretary determines that such suspension or termination of
collection is appropriate and in the best interest of the United States.
(b) The Secretary may terminate collection action on all or any part
of an amount owed to the United States for an indebtedness resulting
from an individual's participation in a benefits program administered by
the Secretary, other than a program as described in paragraph (h) of
this section, if the Secretary determines that such termination of
collection is in the best interest of the United States. For purposes of
this paragraph, an individual is any member of the Armed Forces or
veteran who dies as a result of an injury incurred or aggravated in the
line of duty while serving in a theater of combat operations in a war or
in combat against a hostile force during a period of hostilities on or
after September 11, 2001.
(c) For purposes of this section:
(1) Theater of combat operations means the geographic area of
operations where the Secretary in consultation with the Secretary of
Defense determines that combat occurred.
(2) Period of hostilities means an armed conflict in which members
of the United States Armed Forces are subjected to danger comparable to
danger to which members of the Armed Forces have been subjected in
combat with enemy armed forces during a period of war, as determined by
the Secretary in consultation with the Secretary of Defense.
(d) The Secretary may refund amounts collected after the death of a
member of the Armed Forces or veteran in accordance with this paragraph
and paragraph (e) of this section.
(1) In any case where all or any part of a debt of a member of the
Armed Forces, as described under paragraph (a) of this section, was
collected, the Secretary may refund the amount collected if, in the
Secretary's determination, the indebtedness would have been suspended or
terminated under authority of 31 U.S.C. 3711(f). The member of the Armed
Services must have been serving on active duty on or after September 11,
2001. In any case where all or any part of a debt of a covered member of
the Armed Forces was collected, the Secretary may refund the amount
collected, but only if the Secretary determines that, under the
circumstances applicable with respect to the deceased member of the
Armed Forces, it is appropriate to do so.
(2) In any case where all or any part of a debt of a covered member
of the Armed Forces or veteran, as described under paragraph (b) of this
section, was
[[Page 113]]
collected on or after September 11, 2001, the Secretary may refund the
amount collected if, in the Secretary's determination, the indebtedness
would have been terminated under authority of 38 U.S.C. 5302A. In
addition, the Secretary may refund the amount only if he or she
determines that the deceased individual is equitably entitled to the
refund.
(e) Refunds under paragraph (d) of this section will be made to the
estate of the decedent or, in its absence, to the decedent's next-of-kin
in the order listed below.
(1) The decedent's spouse.
(2) The decedent's children (in equal shares).
(3) The decedent's parents (in equal shares).
(f) The authority exercised by the Secretary to suspend or terminate
collection action and/or refund amounts collected on certain
indebtedness is reserved to the Secretary and will not be delegated.
(g) Requests for a determination to suspend or terminate collection
action and/or refund amounts previously collected as described in this
section will be submitted to the Office of the Secretary through the
Office of the General Counsel. Such requests for suspension or
termination and/or refund may be initiated by the head of the VA
administration having responsibility for the program that gave rise to
the indebtedness, or any concerned staff office, or by the Chairman of
the Board of Veterans' Appeals. When a recommendation for refund under
this section is initiated by the head of a staff office, or by the
Chairman, Board of Veterans' Appeals, the views of the head of the
administration that administers the program that gave rise to the
indebtedness will be obtained and transmitted with the recommendation of
the initiating office.
(h) The provisions of this section concerning suspension or
termination of collection actions and the refunding of moneys previously
collected do not apply to any amounts owed the United States under any
program carried out under 38 U.S.C. chapter 37.
(Authority: 38 U.S.C. 501, 5302A; 31 U.S.C. 3711(f)).
[75 FR 53201, Aug. 31, 2010]
Referrals to GAO, Department of Justice, or IRS
Authority: Sections 1.900 through 1.953 are issued under the
authority of 31 U.S.C. 3711 through 3720E; 38 U.S.C. 501, and as noted
in specific sections.
Source: 52 FR 42111, 42112, Nov. 3, 1987, unless otherwise noted.
Sec. 1.950 Prompt referral.
(a) VA shall promptly refer debts to Department of Justice (DOJ) for
litigation where aggressive collection activity has been taken in
accordance with Sec. Sec. 1.900 through 1.953, and such debts cannot be
compromised, or on which collection activity cannot be suspended or
terminated, in accordance with Sec. Sec. 1.930 through 1.936 and
Sec. Sec. 1.940 through 1.944. Debts for which the principal amount is
over $1,000,000, or such other amount as the Attorney General may
direct, exclusive of interest and other late payment charges, shall be
referred to the Civil Division or other division responsible for
litigating such debts at DOJ. Debts for which the principal amount is
$1,000,000, or less, or such other amount as the Attorney General may
direct, exclusive of interest or penalties, shall be referred to DOJ's
Nationwide Central Intake Facility as required by the Claims Collection
Litigation Report (CCLR) instructions. Debts should be referred as early
as possible, consistent with aggressive agency collection activity and
the observance of the standards contained in Sec. Sec. 1.900 through
1.953, and, in any event, well within the period for initiating timely
lawsuits against the debtors. VA shall make every effort to refer
delinquent debts to DOJ for litigation within 1 year of the date such
debts last became delinquent. In the case of guaranteed or insured
loans, VA should make every effort to refer these delinquent debts to
DOJ for litigation within 1 year from the date the loan was presented to
VA for payment or reinsurance.
(b) DOJ has exclusive jurisdiction over the debts referred to it
pursuant to this section. VA shall immediately terminate the use of any
administrative collection activities to collect a debt at the time of
the referral of that debt to DOJ. VA should advise DOJ of
[[Page 114]]
the collection activities that have been utilized to date, and their
result. VA shall refrain from having any contact with the debtor and
shall direct all debtor inquiries concerning the debt to DOJ. VA shall
immediately notify DOJ of any payments credited to the debtor's account
after referral of a debt under this section. DOJ shall notify VA, in a
timely manner, of any payments it receives from the debtor.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62200, Oct. 25, 2004]
Sec. 1.951 Claims Collection Litigation Report (CCLR).
(a) Unless excepted by the Department of Justice (DOJ), VA shall
complete the CCLR, accompanied by a signed Certificate of Indebtedness,
to refer all administratively uncollectible claims to DOJ for
litigation. VA shall complete all of the sections of the CCLR
appropriate to each claim as required by the CCLR instructions and
furnish such other information as may be required in specific cases.
(b) VA shall indicate clearly on the CCLR the actions it wishes DOJ
to take with respect to the referred claim.
(c) VA shall also use the CCLR to refer claims to DOJ to obtain
approval of any proposals to compromise the claims or to suspend or
terminate agency collection activity.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62200, Oct. 25, 2004]
Sec. 1.952 Preservation of evidence.
VA must take care to preserve all files and records that may be
needed by the Department of Justice (DOJ) to prove its claims in court.
VA ordinarily should include certified copies of the documents that form
the basis for the claim when referring such claims to DOJ for
litigation. VA shall provide originals of such documents immediately
upon request by DOJ.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62200, Oct. 25, 2004]
Sec. 1.953 Minimum amount of referrals to the Department of Justice.
(a) Except as otherwise provided in paragraphs (b) and (c) of this
section, VA shall not refer for litigation claims of less than $2,500,
exclusive of interest, penalties, and administrative costs, or such
other minimum amount as the Attorney General shall from time to time
prescribe. The Department of Justice (DOJ) shall promptly notify
referring agencies if the Attorney General changes this minimum amount.
(b) VA shall not refer claims of less than the minimum amount
prescribed by the Attorney General unless:
(1) Litigation to collect such smaller claims is important to ensure
compliance with VA's policies or programs;
(2) The claim is being referred solely for the purpose of securing a
judgment against the debtor, which will be filed as a lien against the
debtor's property pursuant to 28 U.S.C. 3201 and returned to VA for
enforcement; or
(3) The debtor has the clear ability to pay the claim and the
Government effectively can enforce payment, with due regard for the
exemptions available to the debtor under State and Federal law and the
judicial remedies available to the Government.
(c) VA should consult with the Financial Litigation Staff of the
Executive Office for United States Attorneys, in DOJ, prior to referring
claims valued at less than the minimum amount.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501)
[69 FR 62200, Oct. 25, 2004]
Sec. 1.955 Regional office Committees on Waivers and Compromises.
(a) Delegation of authority and establishment. (1) Sections 1.955 et
seq. are issued to implement the authority for waiver consideration
found in 38 U.S.C. 5302 and 5 U.S.C. 5584 and the compromise authority
found 38 U.S.C. 3720(a) and 31 U.S.C. 3711. The duties, delegations of
authority, and all actions required of the Committees on Waivers and
Compromises are to be accomplished under the direction of, and authority
vested in, the Director of the regional office. Delegations of authority
and limitations for waiver actions under 5 U.S.C. 5584 are set forth in
Sec. 1.963a of this part.
(2) There is established in each regional office, a Committee on
Waivers and Compromises to perform the duties
[[Page 115]]
and assume the responsibilities delegated by Sec. Sec. 1.956 and 1.957.
The term regional office, as used in Sec. 1.955 et seq., includes VA
Medical and Regional Office Centers and VA Centers where such are
established.
(b) Selection. The Director shall designate the employees to serve
as Chairperson, members, and alternates. Except upon specific
authorization of the Under Secretary for Benefits, when workload
warrants a full-time committee, such designation will be part-time
additional duty upon call of the Chairperson.
(c) Control and staff. The administrative control of each Committee
on Waivers and Compromises is the responsibility of the station's Fiscal
Officer. However, the station Director has the authority to reassign the
administrative control function to another station activity, rather than
the Fiscal Officer, whenever the Director determines that such
reassignment is appropriate. The quality control of the professional and
clerical staff of the Committee is the responsibility of the
Chairperson.
(d) Overall control. The Assistant Secretary for Management is
delegated complete management authority, including planning, policy
formulation, control, coordination, supervision, and evaluation of
Committee operations.
(e) Committee composition. (1) The Committee shall consist of a
Chairperson and Alternate Chairperson and as many Committee members and
alternate members as the Director may appoint. Members and alternates
shall be selected so that in each of the debt claim areas (i.e.,
compensation, pension, education, insurance, loan guaranty, etc.) there
are members and alternates with special competence and familiarity with
the program area.
(2) When a claim is properly referred to the Committee for either
waiver consideration or the consideration of a compromise offer, the
Chairperson shall designate a panel from the available Committee members
to consider the waiver request or compromise offer. If the debt for
which the waiver request or compromise offer is made is $20,000 or less
(exclusive or interest and administrative costs), the Chairperson will
assign one Committee member as the panel. This one Committee member
should have experience in the program area where the debt is located.
The single panel member's decision shall stand as the decision of the
Committee. If the debt for which the waiver request or compromise offer
is made is more than $20,000 (exclusive of interest and administrative
costs), the Chairperson shall assign two Committee members. One of the
two members should be knowledgeable in the program area where the debt
arose. If the two member panel cannot reach a unanimous decision, the
Chairperson shall assign a third member of the Committee to the panel,
or assign the case to three new members, and the majority vote shall
determine the Committee decision.
(3) The assignment of a one or two member panel as described in
paragraph (e)(2) of this section is applicable if the debtor files a
Notice of Disagreement with a Committee decision to deny waiver. That
is, if the Notice of Disagreement is filed with a decision by a one
member panel to deny waiver of collection of a debt of $20,000 or less,
then the Notice of Disagreement should also be assigned to one panel
member. Likewise, a Notice of Disagreement filed with a decision by a
two or three member panel to deny waiver of collection of a debt of more
than $20,000 should also be assigned to a Committee panel of two members
(three if these two members cannot agree). However, a Chairperson must
assign the Notice of Disagreement to a different one, two, or three
member panel than the panel that made the original Committee decision
that is now the subject of the Notice of Disagreement.
(Authority: 5 U.S.C. 5584, 31 U.S.C. 3711, 38 U.S.C. 3720(a), 5302)
[44 FR 59905, Oct. 17, 1979, as amended at 48 FR 1056, Jan. 10, 1983; 54
FR 40871, Oct. 4, 1989; 57 FR 47264, Oct. 15, 1992; 60 FR 53276, Oct.
13, 1995; 69 FR 62201, Oct. 25, 2004]
Sec. 1.956 Jurisdiction.
(a) The regional office Committees are authorized, except as to
determinations under Sec. 2.6(e)(4)(i) of this chapter where
applicable, to consider and determine as limited in Sec. Sec. 1.955 et
seq., settlement, compromise and/or waiver
[[Page 116]]
concerning the following debts and overpayments:
(1) Arising out of operations of the Veterans Benefits
Administration:
(i) Overpayment or erroneous payments of pension, compensation,
dependency and indemnity compensation, burial allowances, plot
allowance, subsistence allowance, education (includes debts from work
study and education loan defaults as well as from other overpayments of
educational assistance benefits) or insurance benefits, clothing
allowance and automobile or other conveyance and adaptive equipment
allowances.
(ii) Debts arising out of the loan program under 38 U.S.C. ch. 37
after liquidation of security, if any.
(iii) Such other debts as may be specifically designated by the
Under Secretary for Benefits.
(2) Arising out of operations of the Veterans Health Services and
Research Administration:
(i) Debts resulting from services furnished in error (Sec.
17.101(a) of this chapter).
(ii) Debts resulting from services furnished in a medical emergency
(Sec. 17.101(b) of this chapter).
(iii) Other claims arising in connection with transactions of the
Veterans Health Administration (Sec. 17.103(c) of this chapter).
(iv) Fiscal officers at VA medical facilities are authorized to
waive veterans' debts arising from medical care copayments (Sec.
17.105(c) of this chapter).
(3) Claims for erroneous payments of pay and allowances, and
erroneous payments of travel, transportation, and relocation expenses
and allowances, made to or on behalf of employees (5 U.S.C. 5584).
(b) The Under Secretary for Benefits may, at his or her discretion,
assume original jurisdiction and establish an ad hoc Board to determine
a particular issue arising within this section.
(Authority: 38 U.S.C. 501)
[39 FR 26400, July 19, 1974, as amended at 44 FR 59905, Oct. 17, 1979;
60 FR 53276, Oct. 13, 1995; 69 FR 62201, Oct. 25, 2004]
Sec. 1.957 Committee authority.
(a) Regional office committee. On matters covered in Sec. 1.956,
the regional office Committee is authorized to determine the following
issues:
(1) Waivers. A decision may be rendered to grant or deny waiver of
collection of a debt in the following debt categories:
(i) Loan guaranty program (38 U.S.C. 5302(b)). Committees may
consider waiver of the indebtedness of a veteran or spouse resulting
from: (A) The payment of a claim under the guaranty or insurance of
loans, (B) the liquidation of direct loans, (C) the liquidation of loans
acquired under Sec. 36.4318, and (D) the liquidation of vendee
accounts. The phrase veteran or spouse includes a veteran-borrower,
veteran-transferee, a veteran-purchaser on a vendee account, a former
spouse or surviving spouse of a veteran.
(ii) Other than loan guaranty program. (38 U.S.C. 5302(a))
(iii) Services erroneously furnished (Sec. 17.101(a)).
(2) Compromises--(i) Loan program debts (38 U.S.C. 3720(a)). Accept
or reject a compromise offer irrespective of the amount of the debt
(loan program matters under 38 U.S.C. chapter 37 are unlimited as to
amount).
(ii) Other than loan program debts (31 U.S.C. 3711).
(A) Accept or reject a compromise offer on a debt which exceeds
$1,000 but which is not over $100,000 (both amounts exclusive of
interest and other late payment charges).
(B) Accept or reject a compromise offer on a debt of a $1,000 or
less, exclusive of interest and other late payment charges, which is not
disposed of by the Chief, Fiscal activity, pursuant to paragraph (b) of
this section.
(C) Reject a compromise offer on a debt which exceeds $100,000,
exclusive of interest and other late payment charges.
(D) Recommend approval of a compromise offer on a debt which exceeds
$100,000, exclusive of interest and other late payment charges. The
authority to accept a compromise offer on such a debt rests solely
within the jurisdiction of the Department of Justice. The Committee
should evaluate a compromise offer on a debt in excess of $100,000,
using the factors set forth in Sec. Sec. 1.930 through 1.938. If the
Committee believes that the compromise offer is
[[Page 117]]
advantageous to the government, then the Committee members shall so
state this conclusion in a written memorandum of recommendation of
approval to the Chairperson. This recommendation, along with a Claims
Collection Litigation Report (CCLR) completed in accordance with Sec.
1.951, will be referred to VA Central Office, Office of Financial
Management (047G7), for submission to the Department of Justice for
final approval.
(Authority: 31 U.S.C. 3711)
(b) Chief of Fiscal activity. The Chief of the Fiscal activity at
both VBA and VHA offices has the authority, as to debts within his/her
jurisdiction, to:
(1) On other than loan program debts under 38 U.S.C. chapter 37,
accept compromise offers of 50% or more of a total debt not in excess of
$1,000, exclusive of interest and other late payment charges, regardless
of whether or not there has been a prior denial of waiver.
(2) On other than loan program debts under 38 U.S.C. chapter 37,
reject any offer of compromise of a total debt not in excess of $1,000,
exclusive of interest and other late payment charges, regardless of
whether or not there has been a prior denial of waiver.
(3) On other than loan guaranty program debts under 38 U.S.C.
chapter 37, reject any offer of compromise of a total debt not in excess
of $1,000, exclusive of interest, regardless of whether or not there has
been a prior denial of waiver.
(Authority: 31 U.S.C. 3711 and 38 U.S.C. 3720(a))
[44 FR 59906, Oct. 17, 1979, as amended at 51 FR 38803, Sept. 25, 1985;
52 FR 42112, Nov. 3, 1987; 57 FR 47264, Oct. 15, 1992; 60 FR 53276, Oct.
13, 1995; 69 FR 62201, Oct. 25, 2004]
Sec. 1.958 Finality of decisions.
A decision by the regional office Committee, operating within the
scope of its authority, denying waiver of all or part of a debt arising
out of participation in a VA benefit or home loan program, is subject to
appeal in accordance with 38 CFR parts 19 and 20. A denial of waiver of
an erroneous payment of pay and allowances is subject to appeal in
accordance with Sec. 1.963a(a). There is no right of appeal from a
decision rejecting a compromise offer.
(Authority: 38 U.S.C. 501 and 7104).
[69 FR 62201, Oct. 25, 2004]
Sec. 1.959 Records and certificates.
The Chairperson of the Committee shall execute or certify any
documents pertaining to its proceedings. He/she will be responsible for
maintaining needed records of the transactions of the Committee and
preparation of any administrative or other reports which may be
required.
(Authority: 38 U.S.C. 501)
[44 FR 59906, Oct. 17, 1979]
Sec. 1.960 Legal and technical assistance.
Legal questions involving a determination under Sec. 2.6(e)(4) of
this chapter will be referred to the Regional Counsel for action in
accordance with delegations of the General Counsel, unless there is an
existence a General Counsel's opinion or an approved Regional Counsel's
opinion dispositive of the controlling legal principle. As to matters
not controlled by Sec. 2.6(e)(4) of this chapter, the Chairperson of
the regional office Committee or at his/her instance, a member, may seek
and obtain advice from the Regional Counsel on legal matters within his/
her jurisdiction and from other division chiefs in their areas of
responsibility, on any matter properly before the Committee. Guidance
may also be requested from the Central Office staff.
(Authority: 38 U.S.C. 501)
[44 FR 59906, Oct. 17, 1979]
Sec. 1.961 Releases.
On matters within its jurisdiction, the Committee may authorize the
release of any right, title, claim, lien or demand, however acquired,
against any person obligated on a loan guaranteed, insured, or made by
the Department of Veterans Affairs under the provisions of 38 U.S.C. ch.
37, or on an acquired loan, or on a vendee account.
[39 FR 26400, July 19, 1974]
Sec. 1.962 Waiver of overpayments.
There shall be no collection of an overpayment, or any interest
thereon,
[[Page 118]]
which results from participation in a benefit program administered under
any law by VA when it is determined by a regional office Committee on
Waivers and Compromises that collection would be against equity and good
conscience. For the purpose of this regulation, the term overpayment
refers only to those benefit payments made to a designated living payee
or beneficiary in excess of the amount due or to which such payee or
beneficiary is entitled. The death of an indebted payee, either prior to
a request for waiver of the indebtedness or during Committee
consideration of the waiver request, shall not preclude waiver
consideration. There shall be no waiver consideration of an indebtedness
that results from the receipt of a benefit payment by a non-payee who
has no claim or entitlement to such payment.
(a) Waiver consideration is applicable in an indebtedness resulting
from work study and education loan default, as well as indebtedness of a
veteran-borrower, veteran transferee, or indebted spouse of either,
arising out of participation in the loan program administered under 38
U.S.C. ch. 37. Also subject to waiver consideration is an indebtedness
which is the result of VA hospitalization, domiciliary care, or
treatment of a veteran, either furnished in error or on the basis of
tentative eligibility.
(b) In any case where there is an indication of fraud or
misrepresentation of a material fact on the part of the debtor or any
other party having an interest in the claim, action on a request for
waiver will be deferred pending appropriate disposition of the matter.
However, the existence of a prima facie case of fraud shall,
nevertheless, entitle a claimant to an opportunity to make a rebuttal
with countervailing evidence; similiarly, the misrepresentation must be
more than non-willful or mere inadvertence. The Committee may act on a
request for waiver concerning such debts, after the Inspector General or
the Regional Counsel has determined that prosecution is not indicated,
or the Department of Justice has notified VA that the alleged fraud or
misrepresentation does not warrant action by that department, or the
Department of Justice or the appropriate United States Attorney,
specifically authorized action on the request for waiver.
(Authority: 38 U.S.C. 501)
[39 FR 26400, July 19, 1974, as amended at 44 FR 59906, Oct. 17, 1979;
50 FR 38803, Sept. 25, 1985; 52 FR 42112, Nov. 3, 1987]
Sec. 1.963 Waiver; other than loan guaranty.
(a) General. Recovery of overpayments of any benefits made under
laws administered by the VA shall be waived if there is no indication of
fraud, misrepresentation, or bad faith on the part of the person or
persons having an interest in obtaining the waiver and recovery of the
indebtedness from the payee who received such benefits would be against
equity and good conscience.
(b) Application. A request for waiver of an indebtedness under this
section shall only be considered:
(1) If made within 2 years following the date of a notice of
indebtedness issued on or before March 31, 1983, by the Department of
Veterans Affairs to the debtor, or
(2) Except as otherwise provided herein, if made within 180 days
following the date of a notice of indebtedness issued on or after April
1, 1983, by the Department of Veterans Affairs to the debtor. The 180
day period may be extended if the individual requesting waiver
demonstrated to the Chairperson of the Committee on Waivers and
Compromises that, as a result of an error by either the Department of
Veterans Affairs or the postal authorities, or due to other
circumstances beyond the debtor's control, there was a delay in such
individual's receipt of the notification of indebtedness beyond the time
customarily required for mailing (including forwarding). If the
requester does substantiate that there was such a delay in the receipt
of the notice of indebtedness, the Chairperson shall direct that the 180
day period be computed from the date of the requester's actual receipt
of the notice of indebtedness.
(Authority: 38 U.S.C. 5302 (a) & (c))
[39 FR 26400, July 19, 1974, as amended at 44 FR 59906, Oct. 17, 1979;
48 FR 27400, June 15, 1983; 50 FR 38803, Sept. 25, 1985; 58 FR 3840,
Jan. 12, 1993]
[[Page 119]]
Sec. 1.963a Waiver; erroneous payments of pay and allowances.
(a) The provisions applicable to VA (including refunds) concerning
waiver actions relating to erroneous payments to VA employees of pay and
allowances, and travel, transportation, and relocation expenses and
allowances, are set forth in 5 U.S.C. 5584. The members of Committees on
Waivers and Compromises assigned to waiver actions under Sec. 1.955 of
this part are delegated all authority granted the Secretary under 5
U.S.C. 5584 to deny waiver or to grant waiver in whole or in part of any
debt regardless of the amount of the indebtedness. Committee members
also have exclusive authority to consider and render a decision on the
appeal of a waiver denial or the granting of a partial waiver. However,
the Chairperson of the Committee must assign the appeal to a different
Committee member or members than the member or members who made the
original decision that is now the subject of the appeal. The following
are the only provisions of Sec. Sec. 1.955 through 1.970 of this part
applicable to waiver actions concerning erroneous payments of pay and
allowances, and travel, transportation, and relocation expenses and
allowances, under 5 U.S.C. 5584: Sec. Sec. 1.955(a) through (e)(2),
1.956(a)(introductory text) and (a)(3), 1.959, 1.960, 1.963a, and
1.967(c).
(b) Waiver may be granted under this section and 5 U.S.C. 5584 when
collection would be against equity and good conscience and not in the
best interest of the United States. Generally, these criteria will be
met by a finding that the erroneous payment occurred through
administrative error and that there is no indication of fraud,
misrepresentation, fault, or lack of good faith on the part of the
employee or other person having an interest in obtaining a waiver of the
claim, and waiver would not otherwise be inequitable. Generally, waiver
is precluded when an employee receives a significant unexplained
increase in pay or allowances, or otherwise knows, or reasonably should
know, that an erroneous payment has occurred, and fails to make
inquiries or bring the matter to the attention of the appropriate
officials. Waiver under this standard will depend upon the facts
existing in each case.
(c) An application for waiver must be received within 3 years
immediately following the date on which the erroneous payment was
discovered.
(Authority: 5 U.S.C. 5584; 38 U.S.C. 501).
[69 FR 62202, Oct. 25, 2004]
Sec. 1.964 Waiver; loan guaranty.
(a) General. Any indebtedness of a veteran or the indebtedness of
the spouse shall be waived only when the following factors are
determined to exist:
(1) Following default there was a loss of the property which
constituted security for the loan guaranteed, insured or made under
chapter 37 of title 38 United States Code;
(2) There is no indication of fraud, misrepresentation, or bad faith
on the part of the person or persons having an interest in obtaining the
waiver; and
(3) Collection of such indebtedness would be against equity and good
conscience.
(b) Spouse. The waiver of a veteran's indebtedness shall inure to
the spouse of such veteran insofar as concerns said indebtedness, unless
the obligation of the spouse is specifically excepted. However, the
waiver of the indebtedness of the veteran's spouse shall not inure to
the benefit of the veteran unless specifically provided for in the
waiver decision.
(c) Surviving spouse or former spouse. A surviving spouse of a
veteran or the former spouse of a veteran may be granted a waiver of the
indebtedness provided the requirements of paragraph (a) of this section
are met.
(d) Preservation of Government rights. In cases in which it is
determined that waiver may be granted, the action will take such form
(covenant not to sue, or otherwise) as will preserve the rights of the
Government against obligors other than the veteran or the spouse.
(e) Application. A request for waiver of an indebtedness under this
section shall be made within one year after the date on which the debtor
receives, by Certified Mail-Return Receipt Requested, written notice
from VA of the indebtedness. If written notice of indebtedness is sent
by means other than
[[Page 120]]
Certified Mail-Return Receipt Requested, then there is no time limit for
filing a request for waiver of indebtedness under this section.
(Authority: 38 U.S.C. 5302(b))
(f) Exclusion. Except as otherwise provided in this section, the
indebtedness of a nonveteran obligor under the loan program is excluded
from waiver.
(Authority: 38 U.S.C. 5302 (b) and (c))
[39 FR 26400, July 19, 1974, as amended at 44 FR 59907, Oct. 17, 1979;
57 FR 33875, July 31, 1992; 58 FR 3840, Jan. 12, 1993]
Sec. 1.965 Application of standard.
(a) The standard ``Equity and Good Conscience'', will be applied
when the facts and circumstances in a particular case indicate a need
for reasonableness and moderation in the exercise of the Government's
rights. The decision reached should not be unduly favorable or adverse
to either side. The phrase equity and good conscience means arriving at
a fair decision between the obligor and the Government. In making this
determination, consideration will be given to the following elements,
which are not intended to be all inclusive:
(1) Fault of debtor. Where actions of the debtor contribute to
creation of the debt.
(2) Balancing of faults. Weighing fault of debtor against Department
of Veterans Affairs fault.
(3) Undue hardship. Whether collection would deprive debtor or
family of basic necessities.
(4) Defeat the purpose. Whether withholding of benefits or recovery
would nullify the objective for which benefits were intended.
(5) Unjust enrichment. Failure to make restitution would result in
unfair gain to the debtor.
(6) Changing position to one's detriment. Reliance on Department of
Veterans Affairs benefits results in relinquishment of a valuable right
or incurrence of a legal obligation.
(b) In applying this single standard for all areas of indebtedness,
the following elements will be considered, any indication of which, if
found, will preclude the granting of waiver:
(1) Fraud or misrepresentation of a material fact (see Sec.
1.962(b)).
(2) Bad faith. This term generally describes unfair or deceptive
dealing by one who seeks to gain thereby at another's expense. Thus, a
debtor's conduct in connection with a debt arising from participation in
a VA benefits/services program exhibits bad faith if such conduct,
although not undertaken with actual fraudulent intent, is undertaken
with intent to seek an unfair advantage, with knowledge of the likely
consequences, and results in a loss to the government.
(Authority: 38 U.S.C. 5302(c))
[39 FR 26400, July 19, 1974, as amended at 58 FR 3841, Jan. 12, 1993; 58
FR 7296, Feb. 5, 1993; 69 FR 62202, Oct. 25, 2004]
Sec. 1.966 Scope of waiver decisions.
(a) Decisions will be based on the evidence of record. A hearing may
be held at the request of the claimant or his/her representative. No
expenses incurred by a claimant, his representative, or any witness
incident to a hearing will be paid by the Department of Veterans
Affairs.
(b) A regional office Committee may:
(1) Waive recovery as to certain persons and decline to waive as to
other persons whose claims are based on the same veteran's service.
(2) Waive or decline to waive recovery from specific benefits or
sources, except that:
(i) There shall be no waiver of recovery out of insurance of an
indebtedness secured thereby; i.e., an insurance overpayment to an
insured. However, recovery may be waived of any or all of such
indebtedness out of benefits other than insurance then or thereafter
payable to the insured.
(Authority: 38 U.S.C. 501, 5302)
[39 FR 26400, July 19, 1974, as amended at 44 FR 59907, Oct. 17, 1979;
48 FR 1056, Jan. 10, 1983; 69 FR 62202, Oct. 25, 2004]
Sec. 1.967 Refunds.
(a) Except as provided in paragraph (c) of this section, any portion
of an indebtedness resulting from participation in benefits programs
administered by the Department of Veterans Affairs which has been
recovered by the U.S. Government from the debtor may be
[[Page 121]]
considered for waiver, provided the debtor requests waiver in accordance
with the time limits of Sec. 1.963(b). If collection of an indebtness
is waived as to the debtor, such portions of the indebtedness previously
collected by the Department of Veterans Affairs will be refunded. In the
event that waiver of collection is granted for either an education, loan
guaranty, or direct loan debt, there will be a reduction in the debtor's
entitlement to future benefits in the program in which the debt
originated.
(b) The Department of Veterans Affairs may not waive collection of
the indebtedness of an educational institution found liable under 38
U.S.C. 3685. Waiver of collection of educational benefit overpayments
from all or a portion of the eligible persons attending an educational
institution which has been found liable under 38 U.S.C. 3685 shall not
relieve the institution of its assessed liability. (See 38 CFR
21.4009(f)).
(c) The regulatory provisions concerning refunds of indebtedness
collected by the Department of Veterans Affairs arising from erroneous
payments of pay and allowances and travel, transportation, and
relocation expenses and allowances are set forth in 4 CFR Parts 91 and
92.
(d) Refund of the entire amount collected may not be made when only
a part of the debt is waived or when collection of the balance of a loan
guaranty indebtedness by the Department of Veterans Affairs from
obligors, other than a husband or wife of the person requesting waiver,
will be adversely affected. Only where the amount collected exceeds the
balance of the indebtedness still in existence will a refund be made in
the amount of the difference between the two. Otherwise, refunds will be
made in accordance with paragraph (a) of this section.
(Authority: 38 U.S.C. 3685, 5302; 5 U.S.C. 5584)
[48 FR 1056, Jan. 10, 1983, as amended at 60 FR 53276, Oct. 13, 1995]
Sec. 1.968 [Reserved]
Sec. 1.969 Revision of waiver decisions.
(a) Jurisdiction. A decision involving waiver may be reversed or
modified on the basis of new and material evidence, fraud, a change in
law or interpretation of law specifically stated in a Department of
Veterans Affairs issue, or clear and unmistakable error shown by the
evidence in file at the time the prior decision was rendered by the same
or any other regional office Committee.
(b) Finality of decisions. Except as provided in paragraph (a) of
this section, a decision involving waiver rendered by the Committee
having jurisdiction is final, subject to the provisions of:
(1) Sections 3.104(a), 19.153 and 19.154 of this chapter as to
finality of decisions;
(2) Section 3.105 (a) and (b) of this chapter as to revision of
decisions, except that the Central Office staff may postaudit or make an
administrative review of any decision of a regional office Committee;
(3) Sections 3.103, 19.113 and 19.114 of this chapter as to notice
of disagreement and the right of appeal;
(4) Section 19.124 of this chapter as to the filing of
administrative appeals and the time limits for filing such appeals.
(c) Difference of opinion. Where reversal or amendment of a decision
involving waiver is authorized under Sec. 3.105(b) of this chapter
because of a difference of opinion, the effective date of waiver will be
governed by the principle contained in Sec. 3.400(h) of this chapter.
(Authority: 38 U.S.C. 501)
[44 FR 59907, Oct. 17, 1979]
Sec. 1.970 Standards for compromise.
Decisions of the Committee respecting acceptance or rejection of a
compromise offer shall be in conformity with the standards in Sec. Sec.
1.930 through 1.936. In loan guaranty cases the offer of a veteran or
other obligor to effect a compromise must relate to an indebtedness
established after the liquidation of the security, if any, and shall be
reviewed by the Committee. An offer to effect a compromise may be
accepted if it is deemed advantageous to the Government. A decision on
an offer of compromise may be revised or modified on the basis of any
information which
[[Page 122]]
would warrant a change in the original decision.
(Authority: 31 U.S.C. 3711; 38 U.S.C. 501, 3720)
[44 FR 59907, Oct. 17, 1979, as amended at 69 FR 62202, Oct. 25, 2004]
Salary Offset Provisions
Source: 52 FR 1905, Jan. 16, 1987, unless otherwise noted.
Sec. 1.980 Scope.
(a) In accordance with 5 CFR part 550, subpart K, the provisions set
forth in Sec. Sec. 1.980 through 1.995 implement VA's authority for the
use of salary offset to satisfy certain debts owed to VA.
(b) These regulations apply to offsets from the salaries of current
employees of VA, or any other agency, who owe debts to VA. Offsets by VA
from salaries of current VA employees who owe debts to other agencies
shall be processed in accordance with procedures set forth in 5 CFR part
550, subpart K.
(c) These regulations do not apply to debts or claims arising under
the Internal Revenue Code of 1954, as amended, the Social Security Act,
the tariff laws of the United States, or to any case where collection of
a debt by salary offset is explicitly provided for (e.g., travel
advances in 5 U.S.C. 5705 and employee training expenses in 5 U.S.C.
4108) or prohibited by another statute.
(d) These regulations do not preclude an employee from requesting
waiver of an overpayment under 38 U.S.C. 5302, 5 U.S.C. 5584, or any
other similar provision of law, or in any way questioning the amount or
validity of a debt not involving benefits under the laws administered by
VA by submitting a subsequent claim to the General Accounting Office in
accordance with procedures prescribed by that office.
(e) These regulations do not apply to any adjustment to pay arising
out of an employee's election of coverage or a change in coverage under
a Federal benefits program requiring periodic deductions from pay if the
amount to be recovered was accumulated over four pay periods or less.
(f) These regulations do not apply to a routine intra-agency
adjustment of pay that is made to correct an overpayment of pay
attributable to clerical or administrative errors or delays in
processing pay documents, if the overpayment occurred within the four
pay periods preceding the adjustment and, at the time of such
adjustment, or as soon thereafter as practicable, the individual is
provided written notice of the nature and amount of the adjustment and a
point of contact for contesting such adjustment.
(g) These regulations do not apply to any adjustment to collect a
debt amounting to $50 or less, if at the time of such adjustment, or as
soon thereafter as practicable, the individual is provided with written
notice of the nature and amount of the adjustment and a point of contact
for contesting such adjustment.
(h) These regulations do not preclude the compromise, suspension, or
termination of collection action under the Federal Claims Collection
Standards (FCCS) (31 CFR parts 900-904) and VA regulations 38 CFR 1.930
through 1.944.
(i) The procedures and requirements of these regulations do not
apply to salary offset used to recoup a Federal employee's debt where a
judgment has been obtained against the employee for the debt.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987, as amended at 54
FR 34980, Aug. 23, 1989; 69 FR 62202, Oct. 25, 2004]
Sec. 1.981 Definitions.
(a) Agency means:
(1) An executive agency as defined in 5 U.S.C. 105, including the
U.S. Postal Service, and the U.S. Postal Rate Commission, and
(2) A military department as defined in 5 U.S.C. 102.
(3) An agency or court of the judicial branch, including a court as
defined in 28 U.S.C. 610, the District Court for the Northern Mariana
Islands, and the Judicial Panel on Multidistrict Litigation;
(4) An agency of the legislative branch, including the U.S. Senate
and the U.S. House of Representatives; and
(5) Other independent establishments that are entities of the
Federal Government.
(b) Debt means an amount owed to the United States from sources
which include loans insured or guaranteed by the United States and all
other
[[Page 123]]
amounts due the United States from fees, leases, rents, royalties,
services, sales of real or personal property, overpayments, penalties,
damages, interest, fines and forfeitures (except those arising under the
Uniform Code of Military Justice), and all other similar sources.
(c) Disposable pay means that part of current basic pay, special
pay, incentive pay, retired pay, retainer pay, or in the case of an
employee not entitled to basic pay, other authorized pay remaining after
the deduction of any amount required by law to be withheld. Excluded
from this definition are deductions described in 5 CFR 581.105(b)
through (f).
(d) Employee means a current employee of VA or other Federal agency
including a current member of the Armed Forces or a Reserve of the Armed
Forces (Reserves).
(e) Salary offset means an attempt to collect a debt under 5 U.S.C.
5514 by deduction(s) at one or more officially estabilished pay
intervals from the current pay account of an employee without his or her
consent.
(f) Waiver means the cancellation, remission, forgiveness, or non-
recovery of a debt owed by an employee to VA or another Federal agency
as permitted or required by 5 U.S.C. 5584 or 38 U.S.C. 5302, or other
similar statutes.
(g) Extreme hardship to an employee means an employee's inability to
provide himself or herself and his or her dependents with the
necessities of life such as food, housing, clothing, transportation, and
medical care.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987]
Sec. 1.982 Salary offsets of debts involving benefits under the
laws administered by VA.
(a) VA will not collect a debt involving benefits under the laws
administered by VA by salary offset unless the Secretary or appropriate
designee first provides the employee with a minimum of 30 calendar days
written notice.
(b) If the employee has not previously appealed the amount or
existence of the debt under 38 CFR parts 19 and 20 and the time for
pursuing such an appeal has not expired (Sec. 20.302), the Secretary or
appropriate designee will provide the employee with written notice of
the debt. The written notice will state that the employee may appeal the
amount and existence of the debt in accordance with the procedures set
forth in 38 CFR parts 19 and 20 and will contain the determination and
information required by Sec. 1.983(b)(1) through (5), (7), (9), (10),
and (12) though (14). The notice will also state that the employee may
request a hearing on the offset schedule under the procedures set forth
in Sec. 1.984 and such a request will stay the commencement of salary
offset.
(c) If the employee previously appealed the amount or existence of
the debt and the Board of Veterans Appeals decided the appeal on the
merits or if the employee failed to pursue an appeal within the time
provided by regulations, the Secretary or designee shall provide the
employee with written notice prior to collecting the debt by salary
offset. The notice will state:
(1) The determinations and information required by Sec.
1.983(b)(1)-(5), (7), and (12)-(14);
(2) That the employee's appeal of the existence or amount of the
debt was determined on the merits or that the employee failed to pursue
an appeal within the time provided, and VA's decision is final except as
otherwise provided in agency regulations;
(3) That the employee may request a waiver of the debt pursuant to
38 CFR 1.911(c)(2) subject to the time limits of 38 U.S.C. 5302.
(4) That the employee may request an oral or paper hearing on the
offset schedule and receive a decision within 60 days of such request
under the procedures and time limit set forth in Sec. 1.984 and that
such a request will stay the commencement of salary offset.
(d) If the employee has appealed the existence or amount of the debt
and the Board of Veterans Appeals has not decided the appeal on the
merits, collection of the debt by salary offset will be suspended until
the appeal is decided or the employee ceases to pursue the appeal.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987, as amended at 69 FR 62202, Oct. 25, 2004]
[[Page 124]]
Sec. 1.983 Notice requirements before salary offsets of debts not
involving benefits under the laws administered by VA.
(a) For a debt not involving benefits under the laws administered by
VA, the Secretary or designee will review the records relating to the
debt to assure that it is owed prior to providing the employee with a
notice of the debt.
(b) Except as provided in Sec. 1.980(e), salary offset of debts not
involving benefits under the laws administered by VA will not be made
unless the Secretary or designee first provides the employee with a
minimum of 30 calendar days written notice. This notice will state:
(1) The Secretary or designee's determination that a debt is owed;
(2) The amount of the debt owed and the facts giving rise to the
debt;
(3) The Secretary or designee's intention to collect the debt by
means of deduction from the employee's current disposable pay account
until the debt and all accumulated interest and associated costs are
paid in full;
(4) The amount, frequency, approximate beginning date, and duration
of the intended deductions;
(5) An explanation of VA's requirements concerning interest,
administrative costs, and penalties;
(6) The employee's right to inspect and copy VA records relating to
the debt or, if the employee or his or her representative cannot
personally inspect the records, to request and receive a copy of such
records;
(7) The employee's right to enter into a written agreement with the
Secretary or designee for a repayment schedule differing from that
proposed by the Secretary or designee, so long as the terms of the
repayment schedule proposed by the employee are agreeable to the
Secretary or designee;
(8) The VA employee's right to request an oral or paper hearing on
the Secretary or appropriate designee's determination of the existence
or amount of the debt, or the percentage of disposable pay to be
deducted each pay period, so long as a request is filed by the employee
as prescribed by the Secretary. The hearing official for the hearing
requested by a VA employee must be either a VA administrative law judge
or a hearing official from an agency other than VA. Any VA hearing
official may conduct an oral or paper hearing at the request of a non-VA
employee on the determination by an appropriately designated official of
the employing agency of the existence or amount of the debt, or the
percentage of disposable pay to be deducted each pay period, so long as
a hearing request is filed by the non-VA employee as prescribed by the
employing agency.
(9) The method and time period for requesting a hearing;
(10) That the timely filing of a request for a hearing (oral or
paper) will stay the commencement of salary offset;
(11) That a final decision after the hearing will be issued at the
earliest practical date, but no later than 60 calendar days after the
filing of the request for the hearing, unless the employee requests and
the hearing officer grants a delay in the proceedings;
(12) That any knowingly false or frivolous statements,
representations, or evidence may subject the employee to:
(i) Disciplinary procedures appropriate under 5 U.S.C. ch. 75, 5 CFR
part 752, or any other applicable statutes or regulations;
(ii) Penalties under the False Claims Act, 31 U.S.C. 3729-3731, or
any other applicable statutory authority; or
(iii) Criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002 or
any other applicable statutory authority.
(13) The employee's right, if applicable, to request waiver under 5
U.S.C. 5584 and 38 CFR 1.963a and any other rights and remedies
available to the employee under statutes or regulations governing the
program for which the collection is being made; and
(14) Unless there are applicable contractual or statutory provisions
to the contrary, that amounts paid on or deducted for the debt which are
later waived or found not owed to the United States will be promptly
refunded to the employee.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987, as amended at 69 FR 62202, Oct. 25, 2004; 72
FR 65462, Nov. 21, 2007]
[[Page 125]]
Sec. 1.984 Request for a hearing.
(a) Except as provided in paragraph (b) of this section and in Sec.
1.982, an employee wishing a hearing on the existence or amount of the
debt or on the proposed offset schedule must send such a request to the
office which sent the notice of the debt. The employee must also specify
whether an oral or paper hearing is requested. If an oral hearing is
requested, the request should explain why the matter cannot be resolved
by review of the documentary evidence. The request must be received by
the office which sent the notice of the debt not later than 30 calendar
days from the date of the notice.
(b) If the employee files a request for a hearing after the
expiration of the 30 day period provided for in paragraph (a) of this
section, VA may accept the request if the employee shows that the delay
was because of circumstances beyond his or her control or because of
failure to receive the written notice of the filing deadline (unless the
employee has actual notice of the filing deadline).
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987, as amended at 69 FR 62203, Oct. 25, 2004]
Sec. 1.985 Form, notice of, and conduct of hearing.
(a) After an employee requests a hearing, the hearing official or
administrative law judge shall notify the employee of the form of the
hearing to be provided. If the hearing will be oral, the notice shall
set forth the date, time, and location for the hearing. If the hearing
will be paper, the employee shall be notified that he or she should
submit his or her position and arguments in writing to the hearing
official or administrative law judge by a specified date after which the
record shall be closed. This date shall give the employee reasonable
time to submit this information.
(b) An employee who requests an oral hearing shall be provided an
oral hearing if the hearing official or administrative law judge
determines that the matter cannot be resolved by review of documentary
evidence, for example, when an issue of credibility or veracity is
involved. If a determination is made to provide an oral hearing, the
hearing official or administrative law judge may offer the employee the
opportunity for a hearing by telephone conference call. If this offer is
rejected or if the hearing official or administrative law judge declines
to offer a telephone conference call hearing, the employee shall be
provided an oral hearing permitting the personal appearance of the
employee, his or her personal representative, and witnesses. A record or
transcript of every oral hearing shall be made. Witnesses shall testify
under oath or affirmation. VA shall not be responsible for the payment
of any expenses incident to attendance at the hearing which are incurred
by either the employee, his or her representative or Counsel, or
witnesses.
(c) In all other cases where an employee requests a hearing, a paper
hearing shall be provided. A paper hearing shall consist of a review of
the written evidence of record by the administrative law judge or
hearing official.
(d) In any hearing under this section, the administrative law judge
or hearing official may exclude from consideration evidence or testimony
which is irrelevant, immaterial, or unduly repetitious.
(Authority: 5 U.S.C. 5514)
Sec. 1.986 Result if employee fails to meet deadlines.
An employee waives the right to a hearing, and will have his or her
disposable pay offset in accordance with the offset schedule, if the
employee:
(a) Fails to file a request for a hearing as prescribed in Sec.
1.982, Sec. 1.984, or Sec. Sec. 19.1 through 19.200, whichever is
applicable, unless such failure is excused as provided in Sec.
1.984(b); or
(b) Fails to appear at an oral hearing of which he or she had been
notified unless the administrative law judge or hearing official
determines that failure to appear was due to circumstances beyond the
employee's control.
(Authority: 5 U.S.C. 5514)
[[Page 126]]
Sec. 1.987 Review by the hearing official or administrative law judge.
(a) The hearing official or administrative law judge shall uphold
VA's determination of the existence and amount of the debt unless
determined to be erroneous by a preponderance of the evidence.
(b) The hearing official or administrative law judge shall uphold
VA's offset schedule unless the schedule would result in extreme
hardship to the employee.
(Authority: 5 U.S.C. 5514)
[52 FR 1905, Jan. 16, 1987; 52 FR 23824, June 25, 1987]
Sec. 1.988 Written decision following a hearing requested under Sec. 1.984.
(a) The hearing official or administrative law judge must issue a
written decision not later than 60 days after the employee files a
request for the hearing.
(b) Written decisions provided after a hearing requested under Sec.
1.984 will include:
(1) A statement of the facts presented to support the nature and
origin of the alleged debt;
(2) The hearing official or administrative law judge's analysis,
findings and conclusions concerning as applicable:
(i) The employee's or VA's grounds;
(ii) The amount and validity of the alleged debt; and
(iii) The repayment schedule.
(c) The decision in a case where a paper hearing was provided shall
be based upon a review of the written record. The decision in a case
where an oral hearing was provided shall be based upon the hearing and
the written record.
(Authority: 5 U.S.C. 5514)