38 CFR Part 18 — Nondiscrimination in Federally-Assisted Programs of the Department of Veterans Affairs—Effectuation of Title VI of the Civil Rights Act of 1964

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 A—General Authority: Sec. 602, 78 Stat. 252 (42 U.S.C. 2000d-1) and the laws referred to in Appendix A. § 18.1 Purpose. The purpose of this part is to effectuate the provisions of Title VI of the Civil Rights Act of 1964 (hereafter referred to as the Act [29 FR 19301, Dec. 31, 1964. Redesignated at 45 FR 63268, Sept. 24, 1980] § 18.2 Application of this part. This part applies to any program for which Federal financial assistance is authorized under a law administered by the Department of Veterans Affairs, including the types of Federal financial assistance listed in appendix A to this subpart. It applies to money paid, property transferred, or other Federal financial assistance extended after the effective date of this part pursuant to an application approved prior to such effective date. This part does not apply to (a) any Federal financial assistance by way of insurance or guaranty contracts, (b) money paid, property transferred, or other assistance extended before the effective date of this part, (c) any assistance to any individual who is the ultimate beneficiary, or (d) any employment practice, under any such program, of any employer, employment agency, or labor organization, except to the extent described in § 18.3. The fact that a type of Federal financial assistance is not listed in appendix A to this subpart shall not mean, if Title VI of the Act is otherwise applicable, that a program is not covered. Other types of Federal financial assistance under statutes now in force or hereinafter enacted may be added to appendix A to this subpart by notice published in the Federal Register. [38 FR 17965, July 5, 1973. Redesignated at 45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51369, Aug. 26, 2003] § 18.3 Discrimination prohibited. (a) General. (b) Specific discriminatory actions prohibited. (i) Deny an individual any service, financial aid, or other benefit provided under the program; (ii) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program; (iii) Subject an individual to segregation or separate treatment in any matter related to receipt of any service, financial aid, or other benefit under the program; (iv) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program; (v) Treat an individual differently from others in determining whether is satisfied any admission, enrollment, quota, eligibility, membership or other requirement or condition which individuals must meet in order to be provided any service, financial aid, or other benefit provided under the program. (vi) Deny a person an opportunity to participate in the program through the provision of services or otherwise or afford an opportunity to do so which is different from that afforded others under the program. (vii) Deny a person the opportunity to participate as a member of a planning or advisory body which is an integral part of the program. (2) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, or national origin. (3) In determining the site or location of facilities, a recipient or applicant may not make selections with the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program to which this part applies on the grounds of race, color or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this part. (4) As used in this section the services, financial aid, or other benefits provided under a program receiving Federal financial assistance shall be deemed to include any service, financial aid, or other benefit provided in or through a facility provided with the aid of Federal financial assistance. (5) The enumeration of specific forms of prohibited discrimination in this paragraph does not limit the generality of the prohibition in paragraph (a) of this section. (6)(i) In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination. (ii) Even in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color or national origin. (c) Medical emergencies. (d) Employment practices. (2) In regard to Federal financial assistance which does not have providing employment as a primary objective, the provisions of paragraph (d)(1) of this section apply to the employment practices of the recipient if discrimination on the ground of race, color, or national origin in such employment practices tends, on the grounds of race, color, or national origin, to exclude persons from participation in, to deny them the benefits of or to subject them to discrimination under the program receiving Federal financial assistance. In any such case, the provisions of paragraph (d)(1) of this section shall apply to the extent necessary to assure equality of opportunity to and nondiscriminatory treatment of beneficiaries. [29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17965, July 5, 1973; 42 FR 60144, Nov. 25, 1977. Redesignated at 45 FR 63268, Sept. 24, 1980, and further amended at 51 FR 10384, Mar. 26, 1986; 68 FR 51369, Aug. 26, 2003] § 18.4 Assurances required. (a) General. (2) Transfers of surplus property are subject to regulations issued by the Administrator of General Services (41 CFR subpart 101-6.2). (b) Continuing Federal financial assistance. (c) Elementary and secondary schools. (d) Extent of application to institution or facility. [38 FR 17965, July 5, 1973. Redesignated at 45 FR 63268, Sept. 24, 1980, and amended at 51 FR 10384, Mar. 26, 1986; 68 FR 51369, Aug. 26, 2003] § 18.6 Compliance information. (a) Cooperation and assistance. (b) Compliance reports. (c) Access to sources of information. (d) Information to beneficiaries and participants. [29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973. Redesignated at 45 FR 63268, Sept. 24, 1980 and amended at 51 FR 10384, Mar. 26, 1986; 68 FR 51369, Aug. 26, 2003] § 18.7 Conduct of investigations. (a) Periodic compliance reviews. (b) Complaints. (c) Investigations. (d) Resolution of matters. (2) If an investigation does not warrant action pursuant to paragraph (d)(1) of this section the responsible agency official or designee will so inform the recipient and the complainant, if any, in writing. (e) Intimidatory or retaliatory acts prohibited. [29 FR 19301, Dec. 31, 1964. Redesignated at 45 FR 63268, Sept. 24, 1980 and amended at 51 FR 10384, Mar. 26, 1986] § 18.8 Procedure for effecting compliance. (a) General. (b) Noncompliance with § 18.4. (c) Termination of or refusal to grant or to continue Federal financial assistance. (d) Other means authorized by law. [29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973. Redesignated at 45 FR 63268, Sept. 24, 1980, and amended at 51 FR 10384, Mar. 26, 1986] § 18.9 Hearings. (a) Opportunity for hearing. (b) Time and place of hearing. (c) Right to counsel. (d) Procedures, evidence, and record. (2) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made. (e) Consolidated or joint hearings. [29 FR 19301, Dec. 28, 1964, as amended at 38 FR 17966, July 5, 1973. Redesignated at 45 FR 63268, Sept. 24, 1980 and amended at 51 FR 10384, Mar. 26, 1986; 68 FR 51369, Aug. 26, 2003] § 18.10 Decisions and notices. (a) Procedure on decisions by an administrative law judge. (b) Decisions on record or review by the responsible agency official. (c) Decisions on record where a hearing is waived. (d) Rulings required. (e) Approval by Secretary. (f) Content of orders. (g) Post termination proceedings. (2) Any applicant or recipient adversely affected by an order entered pursuant to paragraph (f) of this section may at any time request the responsible agency official to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or recipient has met the requirements of paragraph (g)(1) of this section. If the responsible agency official determines that those requirements have been satisfied, the official shall restore such eligibility. (3) If the responsible agency official denies any such request, the applicant or recipient may submit a request for a hearing in writing, specifying why it believes such official to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record, in accordance with rules of procedure issued by the responsible agency official. The applicant or recipient will be restored to such eligibility if it proves at such a hearing that it satisfied the requirements of paragraph (g)(1) of this section. While proceedings under this paragraph are pending, the sanctions imposed by the order issued under paragraph (f) of this section shall remain in effect. [29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17966, July 5, 1973. Redesignated at 45 FR 63268, Sept. 24, 1980, and amended at 51 FR 10384, Mar. 26, 1986; 68 FR 51369, Aug. 26, 2003] § 18.11 Judicial review. Action taken pursuant to section 602 of the Act is subject to judicial review as provided in section 603 of the Act. [29 FR 19301, Dec. 31, 1964. Redesignated at 45 FR 63268, Sept. 24, 1980] § 18.12 Effect on other regulations, forms and instructions. (a) Effect on other regulations. (1) Executive Orders 10925 (3 CFR, 1959-1963 Comp., p. 448), 11114 (3 CFR, 1959-1963, p. 774), and 11246 (3 CFR, 1965 Supp., p. 167) and regulations issued thereunder, or (2) Executive Order 11063 (3 CFR, 1959-1963 Comp., p. 652) and regulations issued thereunder, or any other orders, regulations or instructions, insofar as such orders, regulations, or instructions prohibit discrimination on the grounds of race, color or national origin in any program or situation to which this part is inapplicable, or prohibit discrimination on any other ground. (b) Forms and instructions. (c) Supervision and coordination. [29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17967, July 5, 1973. Redesignated at 45 FR 63268, Sept. 24, 1980; 68 FR 51369, Aug. 26, 2003] § 18.13 Definitions. As used in this part: (a) The term agency (b) The term Secretary (c) The term responsible agency official (d) The term United States State (e) The term Federal financial assistance (f) The terms program or activity program (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 which is established by two or more of the entities described in paragraph (f)(1), (2), or (3) of this section. (g) The term facility (h) The term recipient (i) The term applicant application [29 FR 19301, Dec. 31, 1964, as amended at 38 FR 17967, July 5, 1973. Redesignated at 45 FR 63268, Sept. 24, 1980, and amended at 51 FR 10385, Mar. 26, 1986; 68 FR 51369, Aug. 26, 2003] Appendix A to Subpart A of Part 18—Statutory Provisions to Which This Subpart Applies 1. Payments to State homes (38 U.S.C. 1741-1743). 2. State home facilities for furnishing domiciliary, nursing home, and hospital care (38 U.S.C. 8131-8137). 3. Space and office facilities for representatives of recognized national organizations (38 U.S.C. 5902(a)(2)). 4. All-volunteer force educational assistance, Veteran Readiness and Employment, post-Vietnam era veterans' educational assistance, survivors' and dependents' educational assistance, and administration of educational benefits (38 U.S.C. Chapters 30, 31, 32, 34, 35 and 36, respectively). 5. Sharing of medical facilities, equipment, and information (38 U.S.C. 8151-8157). 6. Approval of educational institutions (38 U.S.C. 104). 7. Space and office facilities for representatives of State employment services (38 U.S.C. 7725(1)). 8. Medical care for survivors and dependents of certain veterans (38 U.S.C. 1713). 9. Transfers for nursing home care; adult day health care (38 U.S.C. 1720). 10. Treatment and rehabilitation for alcohol or drug dependence or abuse disabilities (38 U.S.C. 1720A). 11. Aid to States for establishment, expansion, and improvement of veterans cemeteries (38 U.S.C. 2408). 12. Assistance in establishing new medical schools; grants to affiliated medical schools; assistance to health manpower training institutions (38 U.S.C. Chapter 82). 13. Department of Veterans Affairs health professional scholarship program (38 U.S.C. 7601-7655). 14. Emergency veterans job training (Pub. L. 98-77, 97 Stat. 443-452). [51 FR 10385, Mar. 26, 1986, as amended at 87 FR 8742, Feb. 16, 2022] Appendix B to Subpart A of Part 18—Illustrative Applications The following examples, without being exhaustive, will illustrate the application of the nondiscrimination provisions to certain grants of the Department of Veterans Affairs. (In all cases the discrimination prohibited is discrimination on the grounds of race, color, or national origin prohibited by title VI of the Act and this part, as a condition of the receipt of Federal financial assistance.) (a) In grants which support the provision of health or welfare services for veterans in State homes, discrimination in the selection or eligibility of individuals to receive the services, and segregation or other discriminatory practices in the manner of providing them, are prohibited. This prohibition extends to all facilities and services provided by the State as grantee under the program or by a political subdivision of the State. It extends also to services purchased or otherwise obtained by the grantee (or political subdivision) from hospitals, nursing homes, schools, and similar institutions for beneficiaries of the program, and to the facilities in which such services are provided, subject, however, to the provisions of § 18.3(c). (b) In grants to assist in the construction of facilities for the provision of health or welfare services assurances will be required that services will be provided without discrimination, to the same extent that discrimination would be prohibited as a condition of Federal operating grants for the support of such services. Thus, as a condition of grants for the construction of a State home for furnishing nursing home care, assurances will be required that there will be no discrimination in the admission or treatment of patients. In the case of such grants the assurance will apply to patients, to interns, residents, student nurses, and other trainees, and to the privilege of physicians, dentists, and other professionally qualified persons to practice in the nursing home, and will apply to the entire facility for which, or for a part of which, the grant is made, and to facilities operated in connection therewith. (c) Upon transfers of real or personal surplus property for health or educational uses, discrimination is prohibited to the same extent as in the case of grants for the construction of facilities or the provision of equipment for like purposes. (d) A recipient may not take action that is calculated to bring about indirectly what this part forbids it to accomplish directly. Thus a State, in selecting or approving projects or sites for the construction of a nursing home which will receive Federal financial assistance, may not base its selections or approvals on criteria which have the effect of defeating or of substantially impairing accomplishment of the objectives of the Federal assistance program with respect to individuals of a particular race, color, or national origin. (38 U.S.C. 1741, 1744, 8131-8137, 8155, 5902(a)(2), Chapters 31, 34, 35 and 36) [38 FR 17968, July 5, 1973. Redesignated at 45 FR 63268, Sept. 24, 1980] Subparts B-C [Reserved] Subpart D—Nondiscrimination on the Basis of Handicap Authority: 29 U.S.C. 706, 794. Source: 45 FR 63268, Sept. 24, 1980, unless otherwise noted. General Provisions § 18.401 Purpose. The purpose of this part is to effectuate section 504 of the Rehabilitation Act of 1973, which is designed to eliminate discrimination on the basis of handicap in any program or activity receiving Federal financial assistance. § 18.402 Application. This part applies to each recipient of Federal financial assistance from the Department of Veterans Affairs and to each program or activity that receives such assistance. [45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003] § 18.403 Definitions. As used in this part, the term: (a) The Act (b) Section 504 (c) Education of the Handicapped Act et seq. (d) Agency (e) Secretary (f) Recipient (g) Applicant for assistance (h) Federal financial assistance (1) Funds, including funds extended to any entity for payment to or on behalf of students admitted to that entity, extended directly to those students for payment to that entity, or extended directly to those students contingent upon their participation in education or training of that entity; (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 such property for less than fair market value or for reduced consideration; and (ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal Government. (i) Facility (j) Handicapped person. (i) Has a physical or mental impairment which substantially limits one or more major life activities; (ii) Has a record of such an impairment; or (iii) Is regarded as having such an impairment. (2) As used in paragraph (j)(1) of this section, the phrase: (i) Physical or mental impairment (A) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological, musculoskeletal; special sense organs including speech organs; respiratory; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or (B) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. (C) The term physical or mental impairment (ii) Major life activities (iii) Has a record of such an impairment (iv) Is regarded as having an impairment (A) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a recipient as constituting such a limitation; (B) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; (C) Has none of the impairments defined in paragraph (j)(2)(i) of this section, but is treated by a recipient as having such an impairment. (k) Qualified handicapped person (1) With respect to employment, a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question; (2) With respect to public elementary, secondary, or adult educational services, a handicapped person: (i) Of an age during which nonhandicapped persons are provided such services; (ii) Of any age during which it is mandatory under State laws to provide such services to handicapped persons; or (iii) To whom a State is required to provide a free appropriate public education under section 612 of the Education of the Handicapped Act; and (3) With respect to postsecondary and vocational education services, a handicapped person who meets the academic and technical standards requisite to admission or participation in the recipient's education program or activity; and (4) With respect to other services, a handicapped person who meets the essential eligibility requirements for the receipt of such services. (l) Handicap (m) Program or activity (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 (m)(1), (2), or (3) of this section. [45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003] § 18.404 Discrimination prohibited. (a) General. (b) Discriminatory actions prohibited. (i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service that is equal to that afforded others; (ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others; (iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that provided to others; (iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others; (v) Aid or perpetuate discrimination against a qualified handicapped person by providing significant assistance to an agency, organization, or person that discriminates on the basis of handicap in providing any aid, benefit, or service to beneficiaries of the recipient's program or activity; (vi) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or (vii) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service. (2) Aids, benefits, and services, to be equally effective, are not required to produce the identical result or level of achievement for handicapped and nonhandicapped persons, but must give handicapped persons equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person's needs. (3) Despite the existence of separate or different aid, benefits, or services provided in accordance with this part, a recipient may not deny a qualified handicapped person the opportunity to participate in aid, benefits, or services that are not separate or different. (4) A recipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration that: (i) Have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) Have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program or activity with respect to handicapped persons, or (iii) Perpetuate the discrimination of another recipient if both recipients are subject to common administrative control or are agencies of the same State. (5) In determining the site or location of a facility, an applicant for assistance or a recipient may not make selections that: (i) Have the effect of excluding handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity that receives Federal financial assistance, or (ii) Have the purpose or effect of defeating or substantially impairing the accomplishment of the objective of the program or activity with respect to handicapped persons. (6) As used in this section, the aid, benefit, or service provided under a program or activity receiving Federal financial assistance includes any aid, benefit, or service provided in or through a facility that has been constructed, expanded, altered, leased or rented, or otherwise acquired, in whole or in part, with Federal financial assistance. (c) Aid, benefits, or services limited by Federal law. (d) Special communication. [45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003] § 18.405 Assurances required. (a) Assurances. (b) Duration of obligation. (2) Where Federal financial assistance is extended to provide personal property, the assurance will obligate the recipient for the period during which it retains ownership or possession of the property. (3) In all other cases the assurance will obligate the recipient for the period during which Federal financial assistance is extended. (c) Extent of application to institution or facility. (d) Covenants. (2) Where no transfer of property is involved but property is purchased or improved with Federal financial assistance, the recipient shall agree to include the covenant described in paragraph (b)(2) of this section in the instrument effecting or recording any subsequent transfer of property. (3) Where Federal financial assistance is provided in the form of real property or interest in the property from the Agency, the covenant shall also include a condition coupled with a right to be reserved by the Agency to revert title to the property if there is a breach of the covenant. If a transferee of real property proposes to mortgage or otherwise encumber the real property as security for financing construction of new, or improvement of existing, facilities on the property for the purpose for which the property was transferred, the Secretary may, upon request of the transferee and if necessary to accomplish such financing and upon such conditions as considered appropriate, agree to forbear the exercise of the right to revert title for as long as the lien of the mortgage or other encumbrance remains effective. (e) Other methods of enforcement. (2) Periodic compliance reviews of training establishments will be conducted by VA compliance officers. During these reviews recipients are required to permit access by VA compliance officers during normal business hours to such of their books, records, accounts, facilities and other sources of information including interviews with personnel and trainees as may be pertinent to ascertain compliance with the law. (3) From study of documentation, results of interviews, and observation of activities during tours of facilities, compliance officers will evaluate recipients' compliance status. [45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986; 68 FR 51370, Aug. 26, 2003] § 18.406 Remedial action, voluntary action and self-evaluation. (a) Remedial action. (2) Where a recipient is found to have discriminated against qualified persons on the basis of handicap in violation of section 504 or this part and where another recipient exercises control over the recipient that has discriminated, the Secretary, where appropriate, may require either or both recipients to take remedial action. (3) The Secretary may, where necessary to overcome the effects of discrimination in violation of section 504 or this part, require a recipient to take remedial action with respect to: (i) Handicapped persons who are no longer participants in the recipient's program or activity but who were participants in the program or activity when such discrimination occurred; (ii) Handicapped persons who would have been participants in the program or activity had the discrimination not occurred; or (iii) Handicapped persons presently in the program or activity, but not receiving full benefits or equal and integrated treatment within the program or activity. (b) Voluntary action. (c) Self-evaluation. (i) Evaluate with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons, its current policies and practices and the effects of the policies and practices that do not or may not meet the requirements of this part; (ii) Modify, after consultation with interested persons, including handicapped persons or organizations representing handicapped persons, any policies and practices that do not meet the requirements of this part; and (iii) Take, after consultation with interested persons, including handicapped persons or organizations representing handicapped persons, appropriate remedial steps to eliminate the effects of any discrimination that resulted from adherence to these policies and practices. (2) A recipient that employs fifteen or more persons shall, for at least three years following completion of the evaluation required under paragraph (c)(1) of this section, maintain on file, make available for public inspection, and provide to the Secretary upon request: (i) A list of the interested persons consulted; (ii) A description of areas examined and any problems identified; and (iii) A description of any modifications made and of any remedial steps taken. (3) Recipients who become such more than one year after the effective date of these regulations shall complete these self-evaluation requirements within one year after becoming recipients of Federal financial assistance. (The information collection requirements contained in paragraph (c) have been approved by the Office of Management and Budget under control number 2900-0415) [45 FR 63268, Sept. 24, 1980, as amended at 49 FR 32574, Aug. 15, 1984; 68 FR 51370, Aug. 26, 2003] § 18.407 Designation of responsible employee and adoption of grievance procedures. (a) Designation of responsible employee. (b) Adoption of grievance procedures. § 18.408 Notice. (a) A recipient that employs fifteen or more persons shall take appropriate initial and continuing steps to notify participants, beneficiaries, applicants, and employees, including those with impaired vision or hearing, and unions or professional organizations holding collective bargaining or professional agreements with the recipient that it does not discriminate on the basis of handicap in violation of section 504 and this part. The notification shall state, where appropriate, that the recipient does not discriminate in admission or access to, or treatment, or employment in, its programs or activities. The notification shall also include an identification of the responsible employee designated under § 18.407. A recipient shall make the initial notification required by this paragraph within 90 days of the effective date of this part. Methods of initial and continuing notification may include the posting of notices, publication in newspapers and magazines, placement of notices in recipient's publication, and distribution of memorandums or other written communications. (b) If a recipient publishes or uses recruitment materials or publications containing general information that it makes available to participants, beneficiaries, applicants, or employees, it shall include in those materials or publications a statement of the policy described in paragraph (a) of this section. A recipient may meet the requirement of this section either by including appropriate inserts in existing materials and publications or by revising and reprinting the materials and publications. [45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003] § 18.409 Administrative requirements for certain recipients. The Secretary may require any recipient with fewer than fifteen employees, or any class of such recipients, to comply with §§ 18.407 and 18.408 in whole or in part, when the Secretary finds a violation of this part or finds that such compliance will not significantly impair the ability of the recipient or class of recipients to provide benefits or services. § 18.410 Effect of State or local law or other requirements and effect of employment opportunities. (a) The obligation to comply with this part is not obviated or alleviated by the existence of any State law or other requirement that, on the basis of handicap, imposes prohibitions or limits upon the eligibility of qualified handicapped persons to receive services or to practice any occupation or profession. (b) The obligation to comply with this part is not obviated or alleviated because employment opportunities in any occupation or profession are or may be more limited for handicapped persons than for nonhandicapped persons. Employment Practices § 18.411 Discrimination prohibited. (a) General. (2) A recipient shall make all decisions concerning employment under any program or activity to which this part applies in a manner which ensures that discrimination on the basis of handicap does not occur and may not limit, segregate, or classify applicants or employees in any way that adversely affects their opportunities or status because of handicap. (3) A recipient may not participate in a contractual or other relationship that has the effect of subjecting qualified handicapped applicants or employees to discrimination in employment. The relationships referred to in this section include relationships with employment and referral agencies, with organizations providing or administering fringe benefits to employees of the recipient, and with organizations providing training and apprenticeships. (b) Specific activities. (1) Recruitment, advertising, and the processing of applications for employment; (2) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring; (3) Rates of pay or other forms of compensation and changes in compensation; (4) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists; (5) Leaves of absence, sick leave, or any other leave; (6) Fringe benefits available by virtue of employment, whether or not administered by the recipient; (7) Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, and selection for leaves of absence to pursue training; (8) Employer sponsored activities, including those that are social or recreational; and (9) Any other term, condition, or privilege of employment. (c) Collective bargaining agreements. [45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003] § 18.412 Reasonable accommodation. (a) A recipient shall make reasonable accommodation to the known physical or mental limitations of a handicapped applicant or employee if such accommodation would enable that person to perform the essential functions of the job unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program or activity. (b) Reasonable accommodation may include: (1) Making facilities used by employees readily accessible to and usable by handicapped persons; and (2) Job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters and other similar actions. (c) In determining under paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of a recipient's program or activity, factors to be considered include: (1) The overall size of the recipient's program or activity with respect to number of employees, number and type of facilities, and size of budget; (2) The type of the recipient's operation, including the composition and structure of the recipient's work force; and (3) The nature and cost of the accommodation needed. (d) A recipient may not deny any employment opportunity to a qualified handicapped employee or applicant if the basis for denial is the need to make reasonable accommodation to the physical or mental limitations of the employee or applicant. [45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986; 68 FR 51370, Aug. 26, 2003] § 18.413 Employment criteria. (a) A recipient may not use any employment test or other selection criterion that screens out or tends to screen out handicapped persons or any class of handicapped persons unless: (1) The test score or other selection criterion, as used by the recipient, is shown to be job-related for the position in question; and (2) Alternative job-related tests or criteria that do not screen out or tend to screen out as many handicapped persons are not shown by the Secretary to be available. (b) A recipient shall select and administer tests concerning employment to best ensure that when administered to an applicant or employee who has a handicap that impairs sensory, manual, or speaking skills, the test results accurately reflect the applicant's or employee's job skills, aptitude, or whatever other factor the test purports to measure, rather than reflect the applicant's or employee's impaired sensory, manual, or speaking skills (except when those skills are the factors that the test purports to measure). § 18.414 Preemployment inquiries. (a) Except as provided in paragraphs (b) and (c) of this section, a recipient may not conduct a preemployment medical examination or may not make preemployment inquiry of an applicant as to whether the applicant is a handicapped person or as to the nature or severity of a handicap. A recipient may, however, make preemployment inquiry into the applicant's ability to perform job-related functions. (b) When a recipient is taking remedial action to correct the effects of past discrimination pursuant to § 18.406(a), when a recipient is taking voluntary action to overcome the effects of conditions that resulted in limited participation in its federally assisted program or activity pursuant to § 18.406(b), or when a recipient is taking affirmative action pursuant to section 503 of the Act, the recipient may invite applicants for employment to indicate whether and to what extent they are handicapped, provided that: (1) The recipient states clearly on any written questionnaire used for this purpose or makes clear orally if no written questionnaire is used that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary or affirmative action efforts; and (2) The recipient states clearly that the information is being requested on a voluntary basis, that it will be kept confidential as provided in paragraph (d) of this section, that refusal to provide it will not subject the applicant or employee to any adverse treatment, and that it will be used only in accordance with this part. (c) Nothing in this section shall prohibit a recipient from conditioning an offer of employment on the results of a medical examination conducted prior to the employee's entrance on duty, provided that: (1) All entering employees are subjected to such an examination regardless of handicap, and (2) the results of such an examination are used only in accordance with the requirements of this part. (d) Information obtained in accordance with this section as to the medical condition or history of the applicant shall be collected and maintained on separate forms that shall be accorded confidentiality as medical records, except that: (1) Supervisors and managers may be informed regarding restrictions on the work or duties of handicapped persons and regarding necessary accommodations; (2) First aid and safety personnel may be informed, where appropriate, if the condition might require emergency treatment; (3) Government officials investigating compliance with the Act shall be provided relevant information upon request. Accessibility § 18.421 Discrimination prohibited. No qualified handicapped person shall, because a recipient's facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity to which this part applies. § 18.422 Existing facilities. (a) Accessibility. (b) Methods. (c) Small health, welfare or other social service providers, and recipients that operate other than educational programs or activities. (d) Time period. (e) Transition plan. (1) Identify physical obstacles in the recipient's facilities that limit the accessibility of its program or activity to handicapped persons; (2) Describe in detail the methods that will be used to make the facilities accessible; (3) Specify the schedule for taking the steps necessary to achieve full accessibility under paragraph (a) of this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and (4) Indicate the person responsible for implementation of the plan. (f) Notice. (The information collection requirements contained in paragraph (e) have been approved by the Office of Management and Budget under control number 2900-0414) [45 FR 63268, Sept. 24, 1980, as amended at 49 FR 32574, Aug. 15, 1984; 68 FR 51370, Aug. 26, 2003] § 18.423 New construction. (a) Design and construction. (b) Alteration. (c) Conformance with Uniform Federal Accessibility Standards. (2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall be interpreted to exempt from the requirements of UFAS only mechanical rooms and other spaces that, because of their intended use, will not require accessibility to the public or beneficiaries or result in the employment or residence therein of persons with physical handicaps. (3) This section does not require recipients to make building alterations that have little likelihood of being accomplished without removing or altering a load-bearing structural member. [45 FR 63268, Sept. 24, 1980, as amended at 55 FR 52138, 52141, Dec. 19, 1990] Elementary, Secondary, and Adult Education § 18.431 Application. Sections 18.431 through 18.439 apply to elementary, secondary, and adult education programs or activities that receive Federal financial assistance from the Department of Veterans Affairs and to recipients that operate or receive Federal financial assistance for the operation of such programs or activities. [45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003] § 18.432 Location and notification. A recipient that operates a public elementary or secondary educational program shall annually: (a) Undertake to identify and locate every qualified handicapped person residing in the recipient's jurisdiction who is not receiving a public education; and (b) Take appropriate steps to notify handicapped persons their parents or guardians of the recipients's duty under §§ 18.431 through 18.439. § 18.433 Free appropriate public education. (a) General. (b) Appropriate education. (i) Are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met; and (ii) Are based upon adherence to procedures that satisfy the requirements of §§ 18.434, 18.435, and 18.436. (2) Implementation of an Individualized Education Program developed in accordance with the Education of the Handicapped Act is one means of meeting the standard established in paragraph (b)(1)(i) of this section. (3) A recipient may place a qualified handicapped person or refer that person for aid, benefits, or services other than those that it operates or provides as its means of carrying out the requirements of §§ 18.431 through 18.439. The recipients remain responsible for ensuring that the requirements of §§ 18.431 through 18.439 are met with respect to any qualified handicapped person so placed or referred. (c) Free education. (2) If a recipient places a handicapped person or refers that person for aid, benefits, or services not operated or provided by the recipient as its means of carrying out the requirements of this subpart, the recipient shall ensure that adequate transportation to and from the aid, benefits, or services is provided at no greater cost than would be incurred by the person, parents or guardian if the person were placed in the aid, benefits, or services operated by the recipient. (3) If placement in a public or private residential program is necessary to provide free appropriate public education to a handicapped person because of his or her handicap, the program, including non-medical care and room and board, shall be provided at no cost to the person, parents or guardian. (4) If a recipient has made available, in conformance with this section and § 18.434, a free appropriate public education to a handicapped person and the person's parents or guardian chooses to place the person in a private school, the recipient is not required to pay for the person's education in the private school. Disagreements between a parent or guardian and a recipient regarding whether the recipient has made a free appropriate public education available or regarding the question of financial responsibility are subject to the due process procedures of § 18.436. (d) Compliance. [45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986; 51 FR 12702, Apr. 15, 1986; 68 FR 51370, Aug. 26, 2003] § 18.434 Education setting. (a) Academic setting. (b) Nonacademic settings. (c) Comparable facilities. § 18.435 Evaluation and placement. (a) Preplacement evaluation. (b) Evaluation procedures. (1) Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer; (2) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and (3) Tests are selected and administered to best ensure that, when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student's aptitude or achievement level or whatever other factor the test purports to measure, rather than reflect the student's impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure.) (c) Placement procedures. (1) Draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background and adaptive behavior; (2) Establish procedures to ensure that information obtained from all sources is documented and carefully considered; (3) Ensure that the placement decision is made by a group of persons, including persons knowledgeable about the student, the meaning of the evaluation data and the placement options; and (4) Ensure that the placement decision is made in accordance with § 18.434. (d) Reevaluation. [45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003] § 18.436 Procedural safeguards. (a) A recipient that operates a public elementary or secondary education program shall implement a system of procedural safeguards with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services. The system shall include: (1) Notice; (2) An opportunity for the parents or guardian of the person to examine relevant records; (3) An impartial hearing with opportunity for participation by the person's parents or guardian and representation by counsel; and (4) Review procedure. (b) Compliance with the procedural safeguards of section 615 of the Education of the Handicapped Act is one means of meeting this requirement. § 18.437 Nonacademic services. (a) General. (2) Nonacademic and extracurricular services and activities may include counseling services, physical recreational athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the recipient, referrals to agencies which provide assistance to handicapped persons, and employment of students, including both employment by the recipient and assistance in making available outside employment. (b) Counseling services. (c) Physical education and athletics. (2) A recipient may offer to handicapped students physical education and athletic activities that are separate or different from those offered to nonhandicapped students only if separation or differentiation is consistent with the requirements of § 18.434 and only if no qualified handicapped student is denied the opportunity to compete for teams or to participate in courses that are not separate or different. [45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003] § 18.438 Adult education. A recipient that provides adult education may not, on the basis of handicap, exclude qualified handicapped persons. The recipient shall take into account the needs of these persons in determining the aid, benefits, or services to be provided. [45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003] § 18.439 Private education. (a) A recipient that provides private elementary or secondary education may not on the basis of handicap, exclude a qualified handicapped person if the person can, with minor adjustments, be provided an appropriate education, as defined in § 18.433(b)(1), within that recipient's program or activity. (b) A recipient may not charge more for providing an appropriate education to handicapped persons than to nonhandicapped persons except to the extent that any additional charge is justified by a substantial increase in cost to the recipient. (c) A recipient to which this section applies that provides special education shall do so in accordance with §§ 18.435 and 18.436. Each recipient to which this section applies is subject to §§ 18.434, 18.437, and 18.438. [45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003] Postsecondary Education § 18.441 Application. Sections 18.441 through 18.447 apply to postsecondary education programs or activities that receive Federal financial assistance from the Department of Veterans Affairs and to recipients that operate or receive or benefit from Federal financial assistance for the operation of such programs or activities. [45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003] § 18.442 Admissions and recruitment. (a) General. (b) Admission. (1) May not apply limitations on the number or proportion of handicapped persons who may be admitted; (2) May not use any test or criterion for admission that has a disproportionate, adverse effect on handicapped persons or any class of handicapped persons unless: (i) The test or criterion, as used by the recipient, has been validated as a predictor of success in the education program or activity in question; and (ii) Alternate tests or criteria that have a less disproportionate, adverse effect are not shown by the Secretary to be available; (3) Shall assure itself that: (i) Admissions tests are selected and administered to best ensure that, when a test is administered to an applicant who has a handicap that impairs sensory, manual, or speaking skills, the test results accurately reflect the applicant's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflect the applicant's impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure); (ii) Admissions tests that are designed for persons with impaired sensory, manual, or speaking skills are offered as often and in as timely a manner as are other admissions tests; and (iii) Admissions tests are administered in facilities that, on the whole, are accessible to handicapped persons; and (4) Except as provided in paragraph (c) of this section, may not make preadmission inquiries as to whether an applicant for admission is a handicapped person. After admission, the recipient may inquire on a confidential basis as to handicaps that may require accommodation. (c) Preadmission inquiry exception. (1) The recipient shall state clearly on any written questionnaire used for this purpose or make clear orally if no written questionnaire is used that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary action efforts; and (2) The recipient shall state clearly that the information is being requested on a voluntary basis, that it will be kept confidential, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will be used only in accordance with this part. (d) Validity studies. § 18.443 General treatment of students. (a) No qualified handicapped student shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any academic, research, occupational training, housing, health insurance, counseling, financial aid, physical education, athletics, recreation, transportation, other extracurricular, or other aid, benefits, or services operated by a recipient to which this subpart applies. (b) A recipient that considers participation by students in education programs or activities not operated wholly by the recipient as part of, or equivalent to, an education program or activity operated by the recipient shall assure itself that the other education program or activity, as a whole, provides an equal opportunity for the participation of qualified handicapped persons. (c) A recipient to which this subpart applies may not, on the basis of handicap, exclude any qualified handicapped student from any course, course of study, or other part of its education program or activity. (d) A recipient shall operate its program or activity in the most integrated setting appropriate. [45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003] § 18.444 Academic adjustments. (a) Academic requirements. (b) Other rules. (c) Course examinations. (d) Auxiliary aids. (2) Auxiliary aids may include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions. Recipients need not provide attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature. [45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003] § 18.445 Housing. (a) Housing provided by a recipient. (b) Other housing. § 18.446 Financial and employment assistance to students. (a) Provision of financial assistance. (i) On the basis of handicap, provide less assistance than is provided to nonhandicapped persons, limit eligibility for assistance, or otherwise discriminate; or (ii) Assist any entity or person that provides assistance to any of the recipient's students in a manner that discriminates against qualified handicapped persons on the basis of handicap. (2) A recipient may administer or assist in the administration of scholarships, fellowships, or other forms of financial assistance established under wills, trusts, bequests, or similar legal instruments that require awards to be made on the basis of factors that discriminate or have the effect of discriminating on the basis of handicap only if the overall effect of the award of scholarships, fellowships, and other forms of financial assistance is not discriminatory on the basis of handicap. (b) Assistance in making available outside employment. (c) Employment of students by recipients. § 18.447 Nonacademic services. (a) Physical education and athletics. (2) A recipient may offer to handicapped students physical education and athletic activities that are separate or different only if separation or differentiation is consistent with the requirements of § 18.443(d) and only if no qualified handicapped student is denied the opportunity to compete for teams or to participate in courses that are not separate or different. (b) Counseling and placement services. (c) Social organizations. [45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003] Health and Social Services § 18.451 Application. Subpart F applies to health, and other social service programs or activities that receive Federal financial assistance from the Department of Veterans Affairs and to recipients that operate or receive Federal financial assistance for the operation of such programs or activities. [45 FR 63268, Sept. 24, 1980, as amended at 68 FR 51370, Aug. 26, 2003] § 18.452 Health and other social services. (a) General. (1) Deny a qualified handicapped person these benefits or services; (2) Give a qualified handicapped person the opportunity to receive benefits or services that are not equal to those offered nonhandicapped persons. (3) Provide a qualified handicapped person with benefits or services that are not as effective (as defined in § 18.404(b)(2)) as the benefits or services provided to others; (4) Provide benefits or services in a manner that limits or has the effect of limiting the participation of qualified handicapped persons; or (5) Provide different or separate benefits or services to handicapped persons except where necessary to provide qualified handicapped persons with benefits and services that are as effective as those provided to others. (b) Notice. (c) Emergency treatment for the hearing impaired. (d) Auxiliary aids. (2) The Secretary may require recipients with fewer than fifteen employees to provide auxiliary aids where the provision of aids would not significantly impair the ability of the recipient to provide its benefits or services. (3) Auxiliary aids may include brailled and taped material, interpreters, and aids for persons with impaired hearing or vision. § 18.453 Drug and alcohol addicts. A recipient that operates a general hospital or outpatient facility may not discriminate, with regard to a drug or alcohol abuser or alcoholic who is suffering from a medical condition, in the admission of that person for treatment of the medical condition, or in the treatment of the medical condition because of the person's drug or alcohol abuse or alcoholism. § 18.454 Education of institutionalized persons. A recipient that operates or supervises a program or activity that provides aid, benefits, or services for persons who are institutionalized because of handicap and is responsible for providing training shall ensure that each qualified handicapped person, as defined in § 18.403(k)(2), in its program or activity that provides aid, benefits, or services is provided an appropriate education, as defined in § 18.433(b). Nothing in this section shall be interpreted as altering in any way the obligations of recipients under §§ 18.431 through 18.439. [45 FR 63268, Sept. 24, 1980; 51 FR 12702, Apr. 15, 1986; 68 FR 51370, Aug. 26, 2003] Procedures § 18.461 Procedures. The procedural provisions applicable to Title VI of the Civil Rights Act of 1964 apply to this part. These procedures are found in §§ 18.6 through 18.11 and part 18b of this chapter. Appendix A to Subpart D of Part 18—Statutory Provisions to Which This Part Applies 1. Payments to State Homes (38 U.S.C. 1741-1743). 2. State home facilities for furnishing domiciliary, nursing home, and hospital care (38 U.S.C. 8131-8137). 3. Transfers for nursing home care; adult day health care (38 U.S.C. 1720). 4. Sharing of medical facilities, equipment, and information (38 U.S.C. 8151-8157). 5. Assistance in establishing new state medical schools, grants to affiliated medical schools; assistance to health manpower training institutions (38 U.S.C. Chapter 82). 6. Approval of educational institutions (38 U.S.C. 104). 7. Medical care for survivors and dependents of certain veterans (38 U.S.C. 1713). 8. Space and office facilities for representatives of State employment service (38 U.S.C. 7725(4)). 9. Space and office facilities for representatives of recognized national service organizations (38 U.S.C. 5902(a)(2)). 10. All-volunteer force educational assistance, Veteran Readiness and Employment post-Vietnam era veterans educational assistance; veterans educational assistance, survivors' and dependents' educational assistance, and administration of educational benefits (38 U.S.C. Chapters 30, 31, 32, 34, 35 and 36 respectively). 11. Treatment and rehabilitation for alcohol or drug dependence or abuse disabilities (38 U.S.C. 1720A). 12. Aid to States for establishment, expansion, and improvement of veterans cemeteries (38 U.S.C. 2408). 13. Department of Veterans Affairs health professional scholarship program (38 U.S.C. 7601-7655). 14. Emergency veterans job training (Pub. L. 98-77, 97 Stat. 443-452). [45 FR 63268, Sept. 24, 1980, as amended at 51 FR 10385, Mar. 26, 1986; 51 FR 12702, Apr. 15, 1986; 87 FR 8742, Feb. 16, 2022] Subpart E—Nondiscrimination on the Basis of Age Authority: Age Discrimination Act of 1975, as amended, 42 U.S.C. 6101, et seq.; Source: 50 FR 34133, Aug. 23, 1985, unless otherwise noted. General § 18.501 Purpose. 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] § 18.502 Application. (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) § 18.503 Definitions. As used in these regulations: (a) Act (b) Action (c) Secretary (d) Age (e) Age discrimination (f) Age distinction (g) Age-related term children, adult, older persons, student (h) Day (i) Federal financial assistance (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 (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 (l) Subrecipient recipient (m) United States (Authority: 42 U.S.C. 6101-6107) [50 FR 34133, Aug. 23, 1985, as amended at 68 FR 51371, Aug. 26, 2003] 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. (b) Specific rules. (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 statutory objective (a) Normal operation (b) Statutory objective (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. (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. (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. (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. Veteran Readiness and Employment; 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). [50 FR 34133, Aug. 23, 1985, as amended at 87 FR 8742, Feb. 16, 2022] 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 Veterans' Benefits Act of 1957, as amended; 38 U.S.C. 101 Section 101(4)(A) defines the term “child” for the purposes of Title 38, U.S.C. (except for 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 Veterans' Benefits Act of 1957, as amended, 38 U.S.C. 104 Section 104(a) authorizes the Secretary to approve or disapprove an educational 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 the Department of Veterans Affairs (CHAMPA) Section 103(b) of the Veterans Health Care Expansion Act of 1973, as amended; 38 U.S.C. 1713 Section 1713(a) authorizes the Secretary to provide medical care to: “(1) The spouse or 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) 64.009 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 Care Section 510 of the Veterans' Benefits Act of 1957, amended; 38 U.S.C. 1710 Section 1710 authorizes the Secretary, within the limits of VA facilities, to furnish hospital care or nursing home 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 64.009 Post-Vietnam Era Veterans' Educational Assistance Post Vietnam Era Veterans' Educational Act of 1977, as amended; U.S.C. Chapter 32 Section 3201 states that the purpose of Chapter 32 of Title 38, U.S.C. is: “(1) To provide educational assistance 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” 64.120 Veterans' Educational Assistance Section 2 of the Veterans' Readjustment Benefits Act of 1966, amended; 38 U.S.C. Chapter 34 Section 3451 states that the education program created by this chapter is for the purpose 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” 64.111 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 Assistance War Orphans' Educational Assistance Act of 1956, as amended; 38 U.S.C. Chapter 35 Section 3500 states that “the educational program established by this chapter is for the 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” 64.117 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 than 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 3) Section 3.57 defines the term “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 Assistance Adjudication (38 CFR part 3) Section 3.807(d) sets forth 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 64.117 Survivors' and Dependent's Educational Assistant Under 38 U.S.C. Chapter 35 (38 CFR part 21, subpart C) Section 21.3021 describes beneficiaries of the program. Paragraph (a) defines the term “eligible person” as, “(1) A 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 Educational Benefits; 38 U.S.C. Chapter 34, 35, and 36 (38 CFR part 21, subpart D) Section 21.3300 provides that VA may prescribe special restorative training for the purpose of enabling an eligible 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 Care Eligiblity for hospital, domiciliary or nursing home care of persons discharged or released from active military, naval, or air service (38 CFR 17.47) Section 17.47(e) provides that within the limits of VA facilities, hospital or nursing home care may be provided to any veteran with a nonservice-connected disability if such a veteran is 65 years of age or older 64.009 Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPA) Medical Care for Survivors and Dependents of Certain Veterans (38 CFR 17.54) Section 17.54 states that medical care may be provided 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. . . .” 64.009 Veterans' Educational Assistance Administration of Educational Benefits; 38 U.S.C. Chapters 34, 35, and 36 (38 CFR part 21, subpart D) Section 21.4135(d) sets forth the following dates for the discontinuance of the educational assistance 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, 3.57 and 3.59 [50 FR 34133, Aug. 23, 1985, as amended at 76 FR 34000, June 10, 2011]

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