38 C.F.R. Subpart E—Nondiscrimination on the Basis of Age
Title 38 - Pensions, Bonuses, and Veterans' Relief
Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101, et seq.; 45 CFR part 90 (1979).
Source: 50 FR 34133, Aug. 23, 1985, unless otherwise noted.
The purpose of these regulations is to set out Department of Veterans Affairs (VA) policies and procedures under the Age Discrimination Act of 1975 and the governmentwide age discrimination regulations at 45 CFR part 90. The Act and the governmentwide regulations prohibit discrimination on the basis of age in programs or activities receiving Federal financial assistance. The Act and the governmentwide regulations permit federally assisted programs or activities, and recipients of Federal funds, to continue to use age distinctions and factors other than age which meet the requirements of the Act and its implementing regulations. (Authority: 42 U.S.C. 6101–6107) [50 FR 34133, Aug. 23, 1985, as amended at 54 FR 34984, Aug. 23, 1989; 68 FR 51372, Aug. 26, 2003] (a) These regulations apply to any program or activity receiving Federal financial assistance provided by VA directly or through another recipient. (b) These regulations do not apply to: (1) An age distinction contained in that part of a Federal, State, or local statute or ordinance adopted by an elected, general purpose legislative body which: (i) Provides any benefits or assistance to persons based on age; or (ii) Establishes criteria for participation in age-related terms; or (iii) Describes intended beneficiaries or target groups in age-related terms. (2) Any employment practice of any employer, employment agency, labor organization, or any labor-management joint apprenticeship training program, except any program or activity receiving Federal financial assistance for public service employment under the Job Training Partnership Act, 29 U.S.C. 1501, et seq. (Authority: 42 U.S.C. 6101–6107) As used in these regulations: (a) Act means the Age Discrimination Act of 1975, as amended (Title III of Pub. L. 94–135, 42 U.S.C. 6101–6107). (b) Action means any act, activity, policy, rule, standard, or method of administration; or the use of any policy, rule, standard, or method of administration. (c) Secretary means the Secretary of Veterans Affairs or designees. (d) Age means how old a person is, or the number of elapsed years from the date of a person's birth. (e) Age discrimination means unlawful treatment based on age. (f) Age distinction means any action using age or an age-related term. (g) Age-related term means a word or words which necessarily imply a particular age or range of ages (for example, children, adult, older persons, but not student). (h) Day means calendar day. (i) Federal financial assistance means any grant, entitlement, loan, cooperative agreement, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which a Federal agency or department provides or otherwise makes available assistance in the form of: (1) Funds; or (2) Services of Federal personnel; or (3) Real and personal property or any interest in or use of property, including: (i) Transfers or leases of property for less than fair market value or for reduced consideration; and (ii) Proceeds from a subsequent transfer or lease of property if the Federal share of its market value is not returned to the Federal Government. (j) Program or activity means all of the operations of any entity described in paragraphs (j)(1) through (4) of this section, any part of which is extended Federal financial assistance: (1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or (ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government; (2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or (ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system; (3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship— (A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or (B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or (4) Any other entity that is established by two or more of the entities described in paragraph (j)(1), (2), or (3) of this section. (k) Recipient means any State or its political subdivision, any instrumentality of a State or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended, directly or through another recipient. Recipient includes any successor, assignee, or transferee, but excludes the ultimate beneficiary of the assistance. (l) Subrecipient means any of the entities in the definition of recipient to which a recipient extends or passes on Federal financial assistance. A subrecipient is generally regarded as a recipient of Federal financial assistance and has all the duties of a recipient in these regulations. (m) United States means the fifty States, the District of Columbia, Puerto Rico, the Virgin Islands, the Canal Zone, the Trust Territories of the Pacific Islands, the Northern Marianas, and the territories and possessions of the United States. (Authority: 42 U.S.C. 6101–6107) [50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51371, Aug. 26, 2003]
Title 38: Pensions, Bonuses, and Veterans' Relief
PART 18—NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE DEPARTMENT OF VETERANS AFFAIRS—EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
Subpart E—Nondiscrimination on the Basis of Age
General
§ 18.501 Purpose.
§ 18.502 Application.
§ 18.503 Definitions.
Standards for Determining Age Discrimination
§ 18.511 Rules against age discrimination.
The rules in this section are limited by the exceptions contained in §§18.513 and 18.514 of these regulations.
(a) General rule. No person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.
(b) Specific rules. A recipient may not, in any program or activity receiving Federal financial assistance, directly or through contractual licensing, or other arrangements, use age distinctions or take any other actions which have the effect, on the basis of age, of:
(1) Excluding individuals from, denying them the benefits of, or subjecting them to discrimination under, a program or activity receiving Federal financial assistance; or
(2) Denying or limiting individuals in their opportunity to participate in any program or activity receiving Federal financial assistance.
(c) The specific forms of age discrimination listed in paragraph (b) of this section do not necessarily constitute a complete list.
(Authority: 42 U.S.C. 6101–6107)
§ 18.512 Definitions of “normal operation” and “statutory objective.”
For the purpose of these regulations, the terms normal operation and statutory objective shall have the following meaning:
(a) Normal operation means the operation of a program or activity without significant changes that would impair its ability to meet its objectives.
(b) Statutory objective means any purpose of a program or activity expressly stated in any Federal statute, State statute, or local statute or ordinance adopted by an elected, general purpose legislative body.
(Authority: 42 U.S.C. 6101–6107)
§ 18.513 Exceptions to the rules against age discrimination; normal operation or statutory objective of any program or activity.
A recipient is permitted to take an action, otherwise prohibited by §18.511, if the action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of a program or activity. An action reasonably takes into account age as a factor necessary to the normal operation or the achievement of any statutory objective of a program or activity, if:
(a) Age is used as a measure or approximation of one or more other characteristics; and
(b) The other characteristic(s) must be measured or approximated in order for the normal operation of the program or activity to continue, or to achieve any statutory objective of the program or activity; and
(c) The other characteristic(s) can be reasonably measured or approximated by the use of age; and
(d) The other characteristic(s) are impractical to measure directly on an individual basis.
(Authority: 42 U.S.C. 6101–6107)
§ 18.514 Exceptions to the rules against age discrimination; reasonable factors other than age.
A recipient is permitted to take an action otherwise prohibited by §18.511 which is based on a factor other than age, even though that action may have a disproportionate effect on persons of different ages. An action may be based on a factor other than age only if the factor bears a direct and substantial relationship to the normal operation of the program or activity or to the achievement of a statutory objective.
(Authority: 42 U.S.C. 6101–6107)
§ 18.515 Burden of proof.
The burden of proving that an age distinction or other action falls within the exceptions outlined in §§18.513 and 18.514 is on the recipient of Federal financial assistance.
(Authority: 42 U.S.C. 6101–6107)
§ 18.516 Affirmative action by recipients.
Even in the absence of a finding of discrimination, a recipient may take affirmative action to overcome the effects of conditions that resulted in limited participation in the recipient's program or activity on the basis of age.
(Authority: 42 U.S.C. 6101–6107)
Responsibilities of Department of Veterans Affairs Recipients
§ 18.531 General responsibilities.
Each VA recipient must ensure that its programs or activities are in compliance with the Act and these regulations.
(Authority: 42 U.S.C. 6101–6107)
[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51372, Aug. 26, 2003]
§ 18.532 Notice of subrecipients.
Where a recipient passes on Federal financial assistance from VA to programs or activities of subrecipients, the recipient shall provide the subrecipients written notice of their obligations under the Act and these regulations with respect to such programs and activities.
(Approved by the Office of Management and Budget under control number 2900–0400)(Authority: 42 U.S.C. 6101–6107)
[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51372, Aug. 26, 2003]
§ 18.533 Assurance of compliance and recipient assessment of age distinctions.
(a) Each recipient of Federal financial assistance from VA shall sign a written assurance as specified by the Secretary that it will comply with the Act and these regulations.
(b) Recipient assessment of age distinctions. (1) As part of a compliance review under §18.541 or complaint investigation under §18.544, the Secretary may require a recipient employing the equivalent of 15 of more employees to complete a written self-evaluation, in a manner specified by the responsible agency official, of any age distinction imposed in its programs or activities receiving Federal financial assistance from VA to assess the recipient's compliance with the Act.
(2) Whenever an assessment indicates a violation of the Act or these regulations, the recipient shall take corrective action.
(Authority: 42 U.S.C. 6101–6107)
§ 18.534 Information requirements.
Each recipient shall:
(a) Make available upon request to VA information necessary to determine whether the recipient is complying with the Act and these regulations.
(b) Permit reasonable access by VA to the books, records, accounts, and other recipient facilities and sources of information to the extent necessary to determine whether the recipient is in compliance with the Act and these regulations.
(Authority: 42 U.S.C. 6101–6107)
Investigation, Conciliation, and Enforcement Procedures
§ 18.541 Compliance reviews.
(a) VA may conduct compliance reviews and preaward reviews of recipients or use other similar procedures that will permit it to investigate and correct violations of the Act and these regulations. VA may conduct these reviews even in the absence of a complaint against a recipient. The review may be as comprehensive as necessary to determine whether a violation of these regulations has occurred.
(b) If a compliance review or preaward review indicates a violation of the Act or these regulations, VA will attempt to achieve voluntary compliance with the Act. If voluntary compliance cannot be achieved, VA may institute enforcement proceedings as described in §18.546.
(Authority: 42 U.S.C. 6101–6107)
§ 18.542 Complaints.
(a) Any person, individually or as a member of a class or on behalf of others, may file a complaint with VA alleging discrimination prohibited by the Act or these regulations based on an action occurring on or after July 1, 1979. A complainant shall file a complaint within 180 days from the date the complainant first had knowledge of the alleged act of discrimination. However, for good cause shown, VA may extend this time limit. Complaints may be submitted to the Director, Office of Equal Opportunity (06B), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.
(b) VA will attempt to facilitate the filing of complaints wherever possible, including taking the following measures:
(1) Acknowledging receipt and acceptance of a complaint in writing.
(2) Accepting as a sufficient complaint, any written statement which identifies the parties involved and the date the complainant first had knowledge of the alleged violation, describes generally the action or practice complained of, and is signed by the complainant.
(3) Freely permitting a complainant to add information to the complaint to meet the requirements of a sufficient complaint.
(4) Widely disseminating information regarding the obligations of recipients under the Act and these regulations.
(5) Notifying the complainant and the recipient of their rights and obligations under the complaint procedure, including the right to have a representative at all stages of the complaint procedure.
(6) Notifying the complainant and the recipient (or their representatives) of their right to contact VA for information and assistance regarding the complaint resolution process.
(c) VA will refer a complaint of discrimination based on age to another appropriate Federal agency when the complaint is outside the jurisdiction of VA. VA will notify the complainant in writing that the complaint has been referred; explain the reason why the complaint is not within the jurisdiction of VA; and give the complainant the name, agency, and address of the official to whom the complaint was referred.
(Approved by the Office of Management and Budget under control number 2900–0401)(Authority: 42 U.S.C. 6101–6107)
§ 18.543 Mediation.
(a) Referral of complaints for mediation. VA will refer to the Federal Mediation and Conciliation Service all complaints that:
(1) Fall within the jurisdiction of the Act and these regulations; and
(2) Contain all information necessary for further processing.
(b) Both the complainant and the recipient shall participate in the mediation process to the extent necessary to reach an agreement or make an informed judgment that an agreement is not possible. However, the recipient and the complainant need not meet with the mediator at the same time.
(c) If the complainant and the recipient reach an agreement, the mediator shall prepare a written statement of the agreement and have the complainant and the recipient sign it. The mediator shall send a copy of the agreement to VA. VA will take no further action on the complaint unless the complainant or the recipient fails to comply with the agreement.
(d) The mediator shall protect the confidentiality of all information obtained in the course of the mediation process. No mediator shall testify in any adjunctive proceeding, produce any document, or otherwise disclose any information obtained in the course of the mediation process without prior approval of the head of the mediation agency.
(e) VA will use the mediation process for a maximum of 60 days after the responsible agency official receives a complaint.
(f) Mediation ends if:
(1) 60 days elapse from the time the responsible agency official receives the complaint; or
(2) Prior to the end of that 60-day period, an agreement is reached; or
(3) Prior to the end of that 60-day period, the mediator determines that an agreement cannot be reached.
(g) The mediator shall return unresolved complaints to VA.
(Authority: 42 U.S.C. 6101–6107)
§ 18.544 Investigation.
(a) Informal investigation. (1) VA will investigate complaints that are reopened because of a violation of a mediation agreement.
(2) As part of the initial investigation VA will use informal fact finding methods, including joint or separate discussions with the complainant and recipient to establish the facts and, if possible, settle the complaint on terms that are mutually agreeable to the parties. VA may seek the assistance of any involved State agency.
(3) VA will put any agreement in writing and have it signed by the parties and an authorized official from the VA.
(4) The settlement shall not affect the operation of any other enforcement effort of VA, including compliance reviews and investigation of other complaints which may involve the recipient.
(5) A settlement need not contain an admission of discrimination or other wrongdoing by the recipient nor should it be considered a finding of discrimination against the recipient.
(b) Formal investigation. If VA cannot resolve the complaint through informal investigation, it will begin to develop formal findings through further investigation of the complaint. If the investigation indicates a violation of these regulations, VA will attempt to obtain voluntary compliance. If voluntary compliance cannot be achieved, VA may institute enforcement proceedings as described in §18.546.
(Authority: 42 U.S.C. 6101–6107)
[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51372, Aug. 26, 2003]
§ 18.545 Prohibition against intimidation or retaliation.
A recipient may not engage in acts of intimidation or retaliation against any person who:
(a) Attempts to assert a right protected by the Act or these regulations; or
(b) Cooperates in any mediation, investigation, hearing, or other part of VA's investigation, conciliation, and enforcement process.
(Authority: 42 U.S.C. 6101–6107)
§ 18.546 Compliance procedure.
(a) VA may enforce the Act and these regulations through:
(1) Termination of Federal financial assistance from VA with respect to a recipient's program or activity that has violated the Act or these regulations. The determination of the recipient's violation may be made only after a recipient has had an opportunity for a hearing on the record before an administrative law judge. Therefore, cases which are settled in mediation, or prior to a hearing, will not involve termination of a recipient's Federal financial assistance from VA.
(2) Any other means authorized by law including but not limited to:
(i) Referral to the Department of Justice for proceedings to enforce any rights of the United States or obligations of the recipient created by the Act or these regulations.
(ii) Use of any requirement of or referral to any Federal, State, or local government agency that will have the effect of correcting a violation of the Act or these regulations.
(b) VA will limit any termination under paragraph (a)(1) of this section to the particular program or activity or part of such program or activity of a recipient that VA finds to be in violation of the Act or these regulations. VA will not base any part of a termination on a finding with respect to any program or activity of the recipient which does not receive Federal financial assistance from VA.
(c) VA will take no action under paragraph (a) of this section until:
(1) The Secretary has advised the recipient of its failure to comply with the Act and these regulations and has determined that voluntary compliance cannot be obtained.
(2) Thirty days have elapsed after the Secretary has sent a written report of the circumstances and grounds of the action to the committees of the Congress having legislative jurisdiction over the program or activity involved. The Secretary will file a report whenever any action is taken under paragraph (a) of this section.
(d) VA also may defer granting new Federal financial assistance from VA to a recipient when a hearing under paragraph (a)(1) of this section is initiated.
(1) New Federal financial assistance from VA includes all assistance for which VA requires an application or approval, including renewal or continuation of existing activities, or authorization of new activities during the deferral period. New Federal financial assistance from VA does not include increases in funding resulting solely from a change in the formula or method of computing awards, nor does it include assistance approved prior to the beginning of a hearing under paragraph (a)(1) of this section.
(2) VA will not begin a deferral until the recipient has received a notice of an opportunity for a hearing under paragraph (a)(1) of this section. VA will not continue a deferral for more than 60 days unless a hearing has begun within that time or the time for beginning the hearing has been extended by mutual consent of the recipient and the Secretary. VA will not continue a deferral for more than 30 days after the close of the hearing, unless the hearing results in a finding against the recipient.
(Authority: 42 U.S.C. 6101–6107)
[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51372, Aug. 26, 2003]
§ 18.547 Hearings, decisions, post-termination proceedings.
Certain VA procedural provisions applicable to Title VI of the Civil Rights Act of 1964 apply to VA enforcement of these regulations. They are found at §§18.9 through 18.11 and part 18b of this title.
(Authority: 42 U.S.C. 6101–1607)
§ 18.548 Remedial action by recipient.
Where VA finds that a recipient has discriminated on the basis of age, the recipient shall take any remedial action that VA may require to overcome the effects of the discrimination. If another recipient exercises control over the recipient that has discriminated, VA may require both recipients to take remedial action.
(Authority: 42 U.S.C. 6101–1607)
§ 18.549 Alternate funds disbursal procedure.
(a) When VA withholds funds from a recipient under these regulations, the Secretary may disburse the withheld funds directly to an alternate recipient: Any public or non-profit private organization or agency, or State or political subdivision of the State.
(b) The Secretary will require any alternate recipient to demonstrate;
(1) The ability to comply with these regulations; and
(2) The ability to achieve the goals of the Federal statute authorizing the Federal financial assistance.
(Authority: 42 U.S.C. 6101–1607)
[50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51372, Aug. 26, 2003]
§ 18.550 Exhaustion of administrative remedies.
(a) A complainant may file a civil action following the exhaustion of administrative remedies under the Act. Administrative remedies are exhausted if:
(1) 180 days have elapsed since the complainant filed the complaint and VA has made no finding with regard to the complaint; or
(2) VA issues any finding in favor of the recipient.
(b) If VA fails to make a finding within 180 days or issues a finding in favor of the recipient, VA will:
(1) Promptly advise the complainant of this fact; and
(2) Advise the complainant of his or her right to bring a civil action for injunctive relief; and
(3) Inform the complainant that:
(i) The complainant may bring a civil action only in a United States district court for the district in which the recipient is found or transacts business;
(ii) A complainant prevailing in a civil action has the right to be awarded the costs of the action, including reasonable attorney's fees, but the complainant must demand these costs in the complaint;
(iii) Before commencing the action, the complainant shall give 30 days notice by registered mail to the Secretary, the Attorney General of the United States, and the recipient;
(iv) The notice must state: The alleged violation of the Act; the relief requested; the court in which the complainant is bringing the action; and, whether or not attorney's fees are demanded in the event the complainant prevails; and
(v) The complainant may not bring action if the same alleged violations of the Act by the same recipient is the subject of a pending action in any court of the United States.
(Authority: 42 U.S.C. 6101–6107)
Appendix A to Subpart E of Part 18—Statutory Provisions to Which This Subpart Applies
1. Approval of educational institutions (38 U.S.C. 104).
2. Space and office facilities for representatives of State employment services (38 U.S.C. 7725(1)).
3. Medical care for survivors and dependents of certain veterans (38 U.S.C. 1713).
4. Transfers for nursing home care; adult day health care (38 U.S.C. 1720).
5. Treatment and rehabilitation for alcohol or drug dependence or abuse disabilities (38 U.S.C. 1720A).
6. Payments to State Homes (38 U.S.C. 1741–1743).
7. Aid to States for establishment, expansion, and improvement of veterans' cemeteries (38 U.S.C. 2408).
8. Vocational Rehabilitation; Post-Vietnam Era Veterans' Educational Assistance; Survivors' and Dependents' Educational Assistance; and Administration of Educational Benefits (38 U.S.C. Chapters 31, 32, 34, 35 and 36 respectively).
9. Space and office facilities for representatives of recognized national organizations (38 U.S.C. 5902(a)(2)).
10. Department of Veterans Affairs Health Professional Scholarship Program (38 U.S.C. 7601–7655).
11. State Home Facilities for Furnishing Domiciliary, Nursing Home and Hospital Care (38 U.S.C. 8131–8137).
12. Sharing of Medical Facilities, Equipment and Information (38 U.S.C. 8151–8157).
13. Assistance in Establishing New State Medical Schools; Grants to Affiliated Medical Schools; Assistance to Health Manpower Training Institutions (38 U.S.C. Chapter 82).
14. Emergency Veterans' Job Training (Pub. L. 98–77, 97 Stat. 443–452).
Appendix B to Subpart E of Part 18—List of Age Distinctions Contained in Statutes and Regulations Governing Federal Financial Assistance of the Department of Veterans Affairs
Section 90.31(f) of the governmentwide regulations (45 CFR part 90) requires each Federal agency to publish an appendix to its final regulations containing a list of age distinctions in Federal statutes and regulations affecting financial assistance administered by the agency. This appendix is VA's list of age distinctions contained in Federal statutes and VA regulations which:
(1) Provide benefits or assistance to persons based upon age; or
(2) Establish criteria for participation in age-related terms; or
(3) Describe intended beneficiaries or target groups in age-related terms.
Appendix B deals only with VA's programs of financial assistance covered by the Age Discrimination Act. It does not list age distinctions used by VA in its direct assistance programs, such as veterans' compensation. Also, this appendix contains only age distinctions in Federal statutes and VA regulations in effect on January 1, 1985.
This appendix has two sections: A list of age distinctions in Federal statutes, and a list of age distinctions in VA regulations. The first column contains the name of the program; the second column has the statute name and U.S. Code citation for statutes, or the regulation name and Code of Federal Regulations citation for regulations; the third column contains the section number of the statute or regulation and the description of the age distinction; and the fourth column cites the Catalog of Federal Domestic Assistance number for the program(s) affected where it is available.
Age Distinctions in Statutes Governing Federal Financial Assistance Programs of the Department of Veterans Affairs---------------------------------------------------------------------------------------------------------------- Program Statute Section and Age Distinction CFDA----------------------------------------------------------------------------------------------------------------Veterans' Benefits...................... Section 101 of the Section 101(4)(A) defines the Veterans' Benefits Act of term ``child'' for the purposes 1957, as amended; 38 of Title 38, U.S.C. (except for U.S.C. 101. chapter 19 and section 8502(b) of Title 38) as ``a person who is unmarried and_(i) who is under the age of eighteen years; (ii) who, before attaining the age of eighteen years, became permanently incapable of self-support; or (iii) who, after attaining the age of eighteen years and until completion of education or training (but not after attaining the age of twenty- three years), is pursuing a course of instruction at an approved educational institution; and who is a legitimate child, a legally adopted child, a stepchild who is a member of a veteran's household or was a member at the time of the veteran's death, or an illegitimate child but, as to the alleged father, only if acknowledged in writing signed by him, or if he has been judicially ordered to contribute to the child's support or has been, before his death, judicially decreed to be the father of such child, or if he is otherwise shown by evidence statisfactory to the Secretary to be the father or such child. . . .''. Section 101(4)(B) provides that for the purposes of section 101(4)(A) of Title 38, in the case of an adoption under the laws of any jurisdiction other than a State, a person residing outside any of the States shall not be considered a legally adopted child of a veteran during the lifetime of that veteran, unless, among other things, such a person was less than eighteen years of age at the time of the adoption.Approval of Educational Institutions.... Section 104 of the Section 104(a) authorizes the Veterans' Benefits Act of Secretary to approve or 1957, as amended, 38 disapprove an educational U.S.C. 104. institution for the purpose of determining whether or not benefits are payable under Title 38, U.S.C. (except chapter 15 of title 38) for a child over the age of eighteen years and under the age of twenty-three years who is attending a school, college, academy, seminary, technical institution, university, or other educational institution. Section 104(b) provides that the Secretary may not approve an educational institution under section 104 of Title 38, unless the institution has agreed to report the termination of attendance of any child. If the educational institution fails to report any such termination promptly, the approval of the Secretary shall be withdrawn.Civilian Health and Medical Program of Section 103(b) of the Section 1713(a) authorizes the 64.009 the Department of Veterans Affairs Veterans Health Care Secretary to provide medical (CHAMPA). Expansion Act of 1973, as care to: ``(1) The spouse or amended; 38 U.S.C. 1713. child of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, (2) the surviving spouse or child of a veteran who (A) died as a result of a service- connected disability, or (B) at the time of death had a total disability permanent in nature, resulting from a service- connected disability, and (3) the surviving spouse or child of a person who died in the active military, naval, or air service in the line of duty and not due to such person's own misconduct, who are not otherwise eligible for medical care under Chapter 55 of Title 10, U.S.C. (CHAMPUS). Section 1713(c) provides that for the purposes of this program, ``a child between the ages of eighteen and twenty- three (1) who is eligible for benefits under subsection (a) of this section, (2) who is pursuing a full-time course of instruction at an educational institution, approved under Chapter 36 of this title, and (3) who while pursuing such course of instruction, incurs a disabling illness or injury . . . which results in such child's inability to continue or resume such child's chosen program of education . . . shall remain eligible for benefits under this section until the end of the six-month period beginning on the date the disability is removed, the end of the two- year period beginning on the date of the onset of the disability, or the twenty-third birthday of the child, whichever occurs first''.VA Hospital, Domiciliary or Nursing Home Section 510 of the Section 1710 authorizes the 64.009 Care. Veterans' Benefits Act of Secretary, within the limits of 64.010 1957, amended; 38 U.S.C. VA facilities, to furnish 64.015 1710. hospital care or nursing home 64.016 care. Among the persons eligible for such care are veterans with a nonservice- connected disability if they are sixty-five years of age or older.Post-Vietnam Era Veterans' Educational Post Vietnam Era Veterans' Section 3201 states that the 64.120 Assistance. Educational Act of 1977, purpose of Chapter 32 of Title as amended; U.S.C. Chapter 38, U.S.C. is: ``(1) To provide 32. educational asssistance to those men and women who enter the Armed Forces after December 31, 1976, (2) to assist young men and women in obtaining an education they might not otherwise be able to afford, and (3) to promote and assist the all volunteer military program of the United States by attracting qualified men and women to serve in the Armed Forces''.Veterans' Educational Assistance........ Section 2 of the Veterans' Section 3451 states that the 64.111 Readjustment Benefits Act education program created by of 1966, amended; 38 this chapter is for the purpose U.S.C. Chapter 34. of: `` . . . (1) Enhancing and making more attractive service in the Armed Forces of the United States, (2) extending the benefits of higher education to qualified and deserving young persons who might not otherwise be able to afford such an education, (3) providing vocational readjustment and restoring lost educational opportunities to those service men and women whose careers have been interrupted or impeded by reason of active duty after January 31, 1955, and (4) aiding such persons in attaining the vocational and educational status which they might normally have aspired to and obtained had they not served their country''. Section 3492(b) authorizes the Secretary to pay to an eligible veteran receiving tutorial assistance pursuant to section 3492(a) of this chapter, the cost of such tutorial assistance, subject to certain limits, upon certification by the educational institution that `` . . . (2) the tutor chosen to perform such assistance is qualified and is not the eligible veteran's parent, spouse, child (whether or not married or over eighteen years of age), brother, or sister; and (3) the charges for such assistance do not exceed the customary charges for such tutorial assistance''.Survivors' and Dependents' Educational War Orphans' Educational Section 3500 states that ``the 64.117 Assistance. Assistance Act of 1956, as educational program established amended; 38 U.S.C. Chapter by this chapter is for the 35. purpose of providing opportunities for education to children whose education would otherwise be impeded or interrupted by reason of the disability or death of a parent from a disease or injury incurred or aggravated in the Armed Forces after the beginning of the Spanish- American War, and for the purpose of aiding such children in attaining the educational status which they might have aspired to and attained but for the disability or death of such parent. The Congress further declares that the educational program extended to the surviving spouses of veterans who died of service-connected total disabilities and to spouses of veterans with a service-connected total disability permanent in nature is for the purpose of assisting them in preparing to support themselves and their families at a standard of living level which the veteran, but for the veteran's death or service disability, could have expected to provide for the veteran's family''. Section 3501 defines the term ``eligible person'' as: ``(A) a child of a person who_(i) died of a service-connected disability, (ii) has a total disability permanent in nature resulting from a service- connected disability, or who died while a disability so evaluated was in existence or (iii) at the time of application for benefits under this chapter is a member of the Armed Forces serving on active duty listed, pursuant to section 556 of Title 37 [U.S.C.] and regulations issued thereunder, by the Secretary concerned in one or more of the following categories . . . for a total of ninety days: (A) missing in action, (B) captured in line of duty by a hostile force, or (C) forcibly detained or interned in line of duty by a foreign government or power, . . .'' Subparagraph (a)(2) of this section provides that the term ``child'' includes individuals who are married and individuals who are above the age of twenty-three years. Section 3512 establishes periods of eligibility. Provides that the educational program to which an eligible child within the meaning of this chapter is entitled to may be afforded, ``. . . during the period beginning on the person's eighteenth birthday, or on the successful completion of the person's secondary schooling, whichever first occurs, and ending on the person's twenty- sixth birthday, except that_(1) if the person is above the age of compulsory school attendance under applicable State law, and the Secretary determines that the person's best interests will be served thereby, such period may begin before the person's eighteenth birthday; (2) if the person has a mental or physical handicap, and . . . the person's best interests will be served by pursuing a program of special restorative training or a specialized course of vocational training approved under section 3536 of this title, such period may begin before the person's fourteenth birthday; (3) if the Secretary finds that the parent from whom eligibility is derived has a service-connected total disability permanent in nature, or if the death of the parent from whom eligibility is derived occurs, after the eligible person's eighteenth birthday but before the person's twenty-sixth birthday, then (unless paragraph (4) applies) such period shall end 8 years after, whichever date last occurs: (A) the date on which the Secretary first finds that the parent from whom eligibility is derived has a service-connected total disability permanent in nature, or (B) the date of death of the parent from whom eligibility is derived; (4) if the person serves on duty with the Armed Forces as an eligible person after the person's eighteenth birthday but before the person's twenty-sixth birthday, then such period shall end 8 years after the person's first discharge or release from such duty with the Armed Forces . . . in no event shall such period be extended beyond the person's thirty-first birthday by reason of this paragraph; and (5)(A) if the person becomes eligible by reason of the provisions of section 3501(a)(1)(A)(ii) of this title after the person's eighteenth birthday but before the person's twenty-sixth birthday, then (unless clause (4) of this section applies) such period shall end eight years after the date on which the person becomes eligible by reason of such provisions, but in no event shall such period be extended beyond the person's thirty-first birthday by reason of this clause. . . .''. Section 3513 provides that the parent or guardian of a person or the eligible person (if such person has attained legal majority) for whom the educational assistance is sought under Chapter 35 shall submit an application to the Secretary, which shall be in such form and contain such information as the Secretary shall prescribe. Section 3562 provides that the commencement of a program of education or special restorative training under Chapter 35 shall be a bar, ``(1) to subsequent payments of compensation, dependency and indemnity compensation, or pension based on a death of a parent to an eligible person over the age of eighteen by reason of pursuing a course in an educational institution, or (2) to increased rates, or additional amounts of compensation, dependency and indemnity compensation, or pension because of such a person whether eligibility is based upon the death or upon the total permanent disability of the parent''. Section 3563 states that ``The Secretary shall notify the parent or guardian of each eligible person as defined in section 3501(a)(1)(A) of this title of the educational assistance available to such person under Chapter 35. Such notification shall be provided not later then the month in which such eligible person attains such person's thirteenth birthday or as soon thereafter as feasible''.----------------------------------------------------------------------------------------------------------------
Age Distinctions in Regulations Governing Federal Financial Assistance Programs of the Department of Veterans Affairs---------------------------------------------------------------------------------------------------------------- Program Regulation Section and Age Distinction CFDA----------------------------------------------------------------------------------------------------------------Veterans' Benefits...................... Adjudication (38 CFR part Section 3.57 defines the term 3). ``child'' of a veteran as, ``. . . an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death, or an illegitimate child; and (i) who is under the age of 18 years; or (ii) who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an approved educational institution. (2) For the purposes of determining entitlement of benefits based on a child's school attendance, the term ``child'' of the veteran also includes the following unmarried persons: (i) A person who was adopted by the veteran between the ages of 18 or 23 years. (ii) A person who became a stepchild of a veteran between the ages of 18 or 23 years and who is a member of the veteran's household at the time of the veteran's death. . . .''Survivors' and Dependents' Educational Adjudication (38 CFR part Section 3.807(d) sets forth 64.117 Assistance. 3). basic eligibility criteria for the program of educational assistance under 38 U.S.C. Chapter 35. Defines the term ``child'' as the son or daughter of a veteran who meets the requirements of 38 CFR 3.57, except as to age or marital status. Survivors' and Dependent's Section 21.3021 describes Educational Assistant beneficiaries of the program. Under 38 U.S.C. Chapter 35 Paragraph (a) defines the term (38 CFR part 21, subpart ``eligible person'' as, ``(1) A C). child of a: (i) Veteran who died of a service-connected disability. . . .'' Paragraph (b) defines the term ``child'' as a son or daughter of a veteran as defined in 38 CFR 3.807(d). Section 21.3023 states that: ``(a) Child; age 18. A child who is eligible for educational assistance and who is also eligible for pension, compensation dependency and indemnity compensation based on school attendance must elect whether he or she will receive educational assistance or pension, compensation or dependency and indemnity compensation. (1) An election of education assistance either before or after the age of 18 years is a bar to subsequent payment or increased rates or additional amounts of pension, compensation or dependency and indemnity compensation on account of a child based on school attendance on or after the age of 18 years. . . . (2) Payment of pension, compensation or dependency and indemnity compensation to or on account of a child after his or her 18th birthday does not bar subsequent payments of educational assistance. . . . (b) Child; under 18 or helpless. Educational assistance allowance or special restorative training allowance may generally be paid concurrently with pension, compensation or dependency and indemnity compensation for a child under the age of 18 years or for a helpless child based on the service of one or more parents. Where, however, entitlement is based on the death of more than one parent in the same parental line, concurrent payments in two or more cases may not be authorized if the death of one such parent occurred on or after June 9, 1960. In the latter cases, an election of educational assistance and pension, compensation or dependency and indemnity compensation in one case does not preclude a reelection of benefits before attaining age 18 or while helpless based on the service of another parent in the same parental line. . . .'' Section 21.3040 sets forth criteria for the commencement and termination of the program of education or special restorative training for an eligible child under 38 U.S.C. Chapter 35. Paragraph (a) of this section provides that a program of education or special restorative training may not be afforded prior to the eligible persons' 18th birthday or the completion of secondary schooling, whichever is earlier, unless it is determined through counseling that the best interests of the eligible person will be served by entering training at an earlier date and the eligible person has passed: (1) Compulsory school attendance age under State law; or (2) his or her 14th birthday and due to physical or mental handicap may benefit by special restorative or specialized vocational training. Paragraph (c) of this section provides that no person is eligible for educational assistance who reached his or her 26th birthday on or before the effective date of a finding of permanent total service- connected disability, or on or before the date the veteran's death occurred, or on or before the 91st day of listing by the Secretary concerned of the member of the Armed Forces or whose service eligibility is claimed as being is one of the missing categories identified in 38 CFR 21.3021(a) (1)(iii) and (3)(ii). Paragraph (d) provides that no person is eligible for educational assistance beyond his or her 31st birthday, except in certain exceptional cases. Section 21.3041 sets forth periods of eligibility for an eligible child. Paragraph (a) of this section provides the basic beginning date for the educational assistance as the person's 18th birthday or successful completion of secondary schooling, whichever occurs first. Paragraph (b) authorizes certain exceptions to the basic beginning date, if: (1) A person has passed compulsory school attendance under applicable State law, or (2) has passed his or her 14th birthday and has a physical or mental handicap. Paragraph (c) provides the basic ending date as the person's 26th birthday. Paragraphs (d) and (e) set forth criteria for modifying or extending the ending date. Administration of Section 21.3300 provides that VA Educational Benefits; 38 may prescribe special U.S.C. Chapter 34, 35, and restorative training for the 36 (38 CFR part 21, purpose of enabling an eligible subpart D). child to pursue a program of education, special vocational program, or other appropriate goal, where needed to overcome or lessen the effects of a physical or mental disability. Section 21.4102(a) requires VA to provide counseling for the purpose set forth in 38 CFR 21.4100 to an eligible child when: (1) The eligible child may require specialized vocational or special restorative training, or (2) the eligible child has reached compulsory school attendance age under State law, but has neither reached his or her 18th birthday nor completed secondary schooling, or (3) if requested by the eligible child or his or her parent or guardian for the purpose of preparing an educational plan. Section 21.4139(b) provides that VA will make payment of educational assistance under 38 U.S.C. Chapter 35 to the eligible person if: (1) He or she has attained majority and has no known legal disability or (2) is in the eligible person's best interests, and there is no reason not to designate the eligible person as payee. VA may pay minors under this provision. Section 21.4141 provides that payment of educational assistance allowance under 38 U.S.C. Chapter 35 will be subject to offsets of amounts of pension, compensation, or dependency and indemnity compensation paid over the same period on behalf of a child based on school attendance.VA Hospital, Domiciliary or Nursing Home Eligiblity for hospital, Section 17.47(e) provides that 64.009 Care. domiciliary or nursing within the limits of VA 64.010 home care of persons facilities, hospital or nursing 64.015 discharged or released home care may be provided to 64.016 from active military, any veteran with a nonservice- naval, or air service (38 connected disability if such a CFR 17.47). veteran is 65 years of age or older.Civilian Health and Medical Program of Medical Care for Survivors Section 17.54 states that 64.009 the Department of Veterans Affairs and Dependents of Certain medical care may be provided (CHAMPA). Veterans (38 CFR 17.54). for: ``(1) The spouse or child of a veteran who has a total disability, permanent in nature, resulting from a service-connected disability, and (2) the surviving spouse or child of a veteran who_(a) died as a result of a service- connected disability, or (b) at the time of death had a total disability, permanent in nature resulting from a service- connected disability and_(3) the surviving spouse or child of a person who died in the active military, naval or air service . . . Who are not otherwise eligible for medical care as beneficiaries of the Armed Forces under the provisions of Chapter 55 of Title 10, United States Code (CHAMPUS) . . . and (4) An eligible child who is pursuing a full-time course of instruction approved under 38 U.S.C. Chapter 36, and who incurs a disabling illness or injury while pursuing such course; . . . shall remain eligible for medical care until: (a) The end of the 6- month period beginning on the date the disability is removed, or (b) the end of the 2-year period beginning on the date of the onset of the disability; or (c) the 23d birthday of the child, whichever occurs first. . . .''Veterans' Educational Assistance........ Administration of Section 21.4135(d) sets forth Educational Benefits; 38 the following dates for the U.S.C. Chapters 34, 35, discontinuance of the and 36 (38 CFR part 21, educational assistance subpart D). allowance provided for a dependent child, under Chapter 34 of Title 38: ``. . . (1) Last day of the in calendar year in which marriage occurred unless discontinuance is required at an earlier date under other provisions. (2) Age 18. Day preceding 18th birthday. (3) School attendance. Last day of month in which 23rd birthday, whichever is earlier. (4) Helplessness ceased. Last day of month school attendance ceased or day preceding following 60 days after notice to payee that helplessness has ceased.'' Section 21.4136 sets forth monthly rates for the payment of educational assistance allowance under 38 U.S.C. Chapter 34. Paragraph (f) defines the term ``dependent'' as a spouse, child or dependent parent who meets the definitions of relationship specified in 38 CFR 3.50, 3.51, 3.57 and 3.59.----------------------------------------------------------------------------------------------------------------
Browse Previous
|
