Fast Letter 07-06-07

[Wings]

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DEPARTMENT OF VETERANS AFFAIRS

Veterans Benefits Administration

Washington, D.C. 20420

March 27, 2007 In Reply Refer To: 211

Fast Letter 07-06

Director (00/21)

All VA Regional Offices and Centers

 

 

SUBJ: Overview of changes made to title 38, United States Code, by the Veterans Benefits, Health Care, and Information Technology Act of 2006 (Pub. L. No. 109-461)

 

What is the purpose of this letter?

 

On December 22, 2006, the President signed the Veterans Benefits, Health Care, and Information Technology Act of 2006 (the Act). This Act amends title 38 of the United States Code in several significant ways. Unless otherwise specified, the provisions are effective December 22, 2006.

 

The purpose of this letter is to provide guidance by outlining sections of the Act that will affect Compensation and Pension Programs.

 

Overview of Changes

 

Title I: Attorney Representation Matters

 

Section 101. Agent or Attorney Representation in Veterans Benefits Cases Before the Department of Veterans Affairs. Amends, in pertinent part, 38 U.S.C § 5904, to effectively eliminate certain restrictions on the representation of veterans and other claimants by agents and attorneys in the preparation, presentation and prosecution of claims for benefits before VA. Also affected are §§ 5902, 5903, and 5905. Prior to passage of this legislation, agents and attorneys were prohibited from charging fees for representation provided prior to the time the Board of Veterans’ Appeals first made a final decision in a case. Under the law as it has been amended, agents and attorneys would now be allowed to charge claimants fees for services provided after a notice of disagreement is filed in a case. Further information regarding implementation of this legislation will be forthcoming as regulations develop. Effective date: Most of the amendments made by section 101 are effective December 22, 2006, but the amendments allowing the charging of fees for services provided after the date a notice of disagreement is filed and requiring that fee agreements be filed where the Secretary prescribes are effective 180 days after enactment.

 

Title II: Health Matters. Title II relates to health benefits and programs and enhances the Department’s ability to furnish such benefits, including readjustment counseling and related mental health services for combat veterans.

 

1. Section 211. Modification to State Home Authorities. Most notably, this legislation contains three provisions which enlarge considerably VA’s responsibility for funding the operation of State homes. Significantly, (1) it increases the amount that VA pays each state for nursing home care in a State run home that is provided to veterans who are receiving care for a service-connected disability and who have a service-connected disability rated as 70 percent or more. Currently VA pays $63.40 per day to States for the care of these veterans. This section would require that VA pay essentially the same as VA pays for contract nursing home care; (2) it expands the categories of veterans for whom VA would fill prescriptions written by non-VA physicians (under current law, VA fills prescriptions written by non-VA physicians for veterans who are receiving additional compensation or allowance or increased pension, by reason of being permanently housebound or in need of regular aid and attendance. The new provision would require VA to fill such prescriptions for two additional categories of veterans if they reside in a state home, i.e., veterans in need of such drugs for a service-connected disability; and veterans with service-connected disabilities rated at 50 percent or more). These two provisions become effective 90 days after the date of the enactment of this Act. Finally, section 211 also provides VA with limited authority to treat an existing health care facility in the community, or certain beds in such a facility, as a State home for purposes of receiving per diem payments from VA.

 

Title III: Education Matters. Of particular importance, section 301 of Title III expands eligibility for the Survivors’ and Dependents’ Educational Assistance program (Chapter 35) to include the spouse or child of a member of the Armed Forces who is hospitalized or receiving outpatient medical care, services, or treatment for a service-connected disability that the Secretary determines is total and permanent in nature, and who is likely to be discharged or released from such service for that disability. In brief, this expansion is intended to address those situations in which service members are severely injured or disabled but not discharged or separated from duty because of the nature and extent of their disabilities, which may require lengthy medical treatment potentially lasting at great length. It would treat the spouses and children of these service members in the same way as if the service member were a totally and permanently disabled service-connected veteran, for the purpose of authorizing his or her dependent to immediately avail themselves of the educational assistance provided under Chapter 35. A more in depth coverage of the legislation contained in Title III is provided under a separate Fast Letter.

 

Title IV: National Cemetery and Memorial Affairs Matters

 

1. Section 401. Provision of Government Memorial Headstones or Markers and Memorial Inscriptions for Deceased Dependent Children of Veterans Whose Remains are unavailable for burial. Amends 38 U.S.C. § 2306 to authorize the Secretary to provide a memorial headstone or marker for an eligible dependent child whose remains are unavailable, or if feasible, to add a memorial inscription to an existing VA-provided memorial headstone or marker.

 

2. Section 402. Provision of Government Markers for Marked Graves of Veterans at Private Cemeteries. Section 402(a) extends from December 31, 2006 to December 31, 2007, the expiration date of the Secretary’s authority to furnish Government markers at the expense of the United States to eligible veterans buried in previously marked graves in private cemeteries. Section 402© and (d) make several revisions to the language of § 2306 to accommodate the practical needs of a veteran’s family in obtaining a Government-furnished marker.

 

3. Section 403. Eligibility of Indian Tribal Organizations for Grants for the Establishment of Veterans Cemeteries on Trust Lands. Amends 38 U.S.C. § 2408 to authorize VA to make grants to Native American tribal organizations to assist them in establishing, expanding, or improving veterans’ cemeteries on trust lands in the same manner and under the same conditions as VA makes similar grants to the states.

 

Title X: Other Matters.

 

1. Section 1002. Clarification of Correctional Facilities Covered by Certain Provisions of Law. Amends pertinent provisions of title 38 which limit the amount of VA benefits that may be paid to an individual who is incarcerated in a “Federal, State, or local penal institution” for more than 60 days for conviction of a felony or, in some cases, a misdemeanor. This section clarifies that the subject limitations set forth in title 38 apply to an individual incarcerated in any type of penal facility, including a facility operated by a private contractor. Specifically, the legislation changes the phrase “Federal, State, or local penal institution” to read “Federal, State, local or other penal institution or correctional facility”. These affected sections include 38 U.S.C. §§ 1505(a), 3108(g)(1), 3231(d)(1), 3482(g)(1), 3532(e), 5313, and 5313A.

 

Implementation of Statutory Changes

 

Although regulations will be published, it is not necessary for changes in the regulations to be completed to apply most of the provisions of the Act. They should be put into effect immediately unless otherwise specified.

 

Questions?

 

Questions regarding these changes should be submitted to the Q&A mailbox at VAVBAWAS/CO/21Q&A by the station Question Coordinator (see Fast Letter 02-04).

 

 

 

/s/

Bradley G. Mayes, Director

Compensation and Pension Service