[Federal Register: September 30, 2003 (Volume 68, Number 189)]
[Proposed Rules]
[Page 56425-56428]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30se03-41]
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Part VII
Department of Veterans Affairs
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38 CFR Part 61
VA Homeless Providers Grant and Per Diem Program; Religious
Organizations; Proposed Rule
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 61
RIN 2900-AL63
VA Homeless Providers Grant and Per Diem Program; Religious
Organizations
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: We propose to revise the regulations concerning the VA
Homeless Providers Grant and Per Diem Program. More specifically, we
propose to revise provisions that apply to religious organizations that
receive VA funds under VA's Homeless Providers Grant and Per Diem
Program to ensure that VA activities under this program are open to all
qualified organizations, regardless of their religious character, and
to clearly establish the proper uses to which funds may be put, and the
conditions for the receipt of such funding.
Also, consistent with Title VII of the Civil Rights Act of 1964, we
propose to remove the regulatory prohibition against religious
organizations making employment decisions on a religious basis. The
numerous other requirements are more than sufficient to ensure that
direct government funds are not used for inherently religious
activities.
DATES: Comments must be received on or before October 30, 2003.
ADDRESSES: Mail or hand-deliver written comments to: Director,
Regulations Management (00REG1), Department of Veterans Affairs, 810
Vermont Ave., NW., Room 1068, Washington, DC 20420; or fax comments to (202) 273-9026; or e-mail comments to OGCRegulations@mail.va.gov.
Comments should indicate that they are submitted in response to ``RIN
2900-AL63.'' All comments received will be available for public
inspection in the Office of Regulation Policy and Management, Room
1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday
(except holidays). Please call 202 273-9515 for an appointment.
FOR FURTHER INFORMATION CONTACT: Roger Casey, VA Homeless Providers
Grant and Per Diem Program, Mental Health Strategic Health Care Group
(116E), Department of Veterans Affairs, 810 Vermont Avenue, NW.,
Washington, DC 20420; (877) 332-0334. (This is a toll-free number.)
SUPPLEMENTARY INFORMATION: In the interim final rule document published
in the Federal Register, March 19, 2003, we revised a portion of the
``VA Homeless Providers Grant and Per Diem Program'' regulations. In
order to allow the public to easily review the regulatory changes, we
included the entire rule text for that section, including portions that
were not changing from the regulation that had already been promulgated
prior to the interim final rule. The interim final regulation contained
a Sec. 61.64 concerning religious organizations, which had been
promulgated previously and was not changed in the interim final rule,
that reads as follows:
(a) As a condition for receiving assistance under this part, an
organization that is primarily a religious organization must agree
to conduct activities for which the assistance is provided in a
manner that is free from religious influences and must comply with
the following:
(1) It will not discriminate against any employee or applicant
for employment on the basis of religion and will not limit
employment or give preference in employment to persons on the basis
of religion;
(2) It will not discriminate against any person applying for
housing or supportive services on the basis of religion and will not
limit such housing or services or give preference to persons on the
basis of religion; and
(3) It will provide no religious instruction or counseling,
conduct no religious worship or services, engage in no religious
proselytizing, and exert no other religious influence as a condition
of the provision of housing and supportive services.
We propose to revise Sec. 61.64, consistent with Executive Order
13199 (``Establishment of White House Office of Faith-Based and
Community Initiatives'') and Executive Order 13279 (``Equal Protection
of Laws for Faith-Based and Community Organizations''), to ensure that
VA programs under this part are open to all qualified organizations,
regardless of their religious character, and to establish clearly the
proper uses to which funds may be put, and the conditions for the
receipt of such funding. Accordingly, we propose to revise Sec. 61.64
in accordance with the following principles.
1. Participation by faith based organizations in VA programs. The
proposed rule would make clear that organizations are eligible to
participate in VA programs under this part without regard to their
religious character or affiliation, and that organizations may not be
excluded from the competition for VA funds under this part because they
are religious. Specifically, religious organizations would be eligible
to compete for funding on the same basis, and under the same
eligibility requirements, as all other nonprofit organizations. Also,
the Federal Government, as well as State and local governments
administering funds under VA programs under this part, would be
prohibited from discriminating against organizations on the basis of
religion or their religious character.
2. Faith-based activities. The proposed rule would describe the
requirement applicable to all recipient organizations regarding the use
of VA funds under this part for faith-based activities. Specifically, a
participating organization could not use direct VA funds under this
part to finance inherently religious activities, such as worship,
religious instruction, or proselytization. If the organization engages
in such activities, the activities must be offered separately, in time
or location, from the programs or services funded with VA assistance,
and participation must be voluntary for the beneficiaries of the
directly funded programs or services under this part. This requirement
would ensure that direct VA funds under this part provided to religious
organizations are not used to support inherently religious activities.
Thus, VA funds under this part provided directly to a participating
organization may not be used, for example, to conduct prayer meetings,
studies of sacred texts, or any other activity that is inherently
religious.
This proposed restriction does not mean that an organization that
receives VA funds under this part cannot engage in inherently religious
activities. It simply means such an organization cannot fund these
activities with direct VA funds under this part. Thus, faith-based
organizations that receive direct VA funds under this part must take
steps to separate, in time or location, their inherently religious
activities from the VA-funded services that they offer under this part.
The proposed rule defines the meaning of ``direct financial
assistance'' and ``indirect financial assistance.'' We note, however,
that VA currently has in place only programs that provide direct
financial assistance to participating organizations.
3. Independence of faith-based organizations. The proposed rule
clarifies that a religious organization that participates in VA
programs will retain its independence and may continue to carry out its
mission, including the definition, practice, and expression of its
religious beliefs, provided that it does not use direct financial
assistance from VA under this part to support any inherently religious
activities, such as worship, religious instruction, or proselytization.
Among other things, faith-based organizations
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may use space in their facilities to provide VA-funded services under
this part, without removing religious art, icons, scripture, or other
religious symbols. In addition, a VA-funded religious organization may
retain religious terms in its organization's name, select its board
members and otherwise govern itself on a religious basis, and include
religious references in its organization's mission statements and other
governing documents.
4. Nondiscrimination in providing assistance. The proposed rule
clarifies that an organization that participates in a VA program under
this part shall not, in providing service funded in whole or in part by
VA, discriminate against a program beneficiary or prospective program
beneficiary on the basis of religion or religious belief.
5. Assurance requirement. The proposed rule would remove those
provisions of VA's regulation that require only VA-funded religious
organizations to provide assurance that they will conduct eligible
program activities in a manner that is ``free from religious
influences'' as VA imposes no comparable assurance requirements in any
other context. VA believes it is unfair to require religious
organizations alone to provide additional assurance, above and beyond
those any other organization is required to provide, that they will
comply with VA requirements. All organizations that participate in VA
programs, including religious ones, must carry out eligible activities
in accordance with all program requirements and other applicable
requirements governing the conduct of VA-funded activities, including
those prohibiting the use of direct financial assistance from VA to
engage in inherently religious activities. In addition, to the extent
that provisions of VA's regulation disqualify religious organizations
from participating in VA's program because they are motivated or
influenced by religious faith to provide social services, the proposed
rule removes that restriction, which is inconsistent with governing
law. Such requirements may have a ``chilling effect'' on religious
organizations, many of which are motivated by their faith to provide
VA-funded social services or view the provision of such services as a
``ministry.''
As noted above, current Sec. 61.64 provides that as a condition
for receiving assistance an organization that is primarily a religious
organization must agree not to discriminate against any employee on the
basis of religion and could not limit employment or give preference on
the basis of religion. We propose to delete the hiring restriction.
Section 702 of the Federal Civil Rights Act of 1964 provides that a
religious organization may, without running afoul of Title VII, employ
individuals who share its religious beliefs. This provision helps
enable faith-based groups to promote common values, a sense of
community and unity of purpose, and shared experiences through
service--all of which can contribute to a religious organization's
effectiveness. It thus helps protect the religious liberties of
communities of faith. The proposed regulation thus reflects the
recognition that a religious organization may determine that, in order
to define or carry out its mission, it is important that it be able to
take its faith into account in making employment decisions.
Comment Period
As noted above, an interim final rule revising the VA Homeless
Providers Grant and Per Diem regulations became effective on March 19,
2003. We will begin working on a final rule relating to the interim
final rule as soon as the comment period for the interim final rule
closes. We are providing a 30-day comment period for this proposed rule
concerning religious organizations so that any resulting changes can be
included in said final rule.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
Executive Order 12866
This document has been reviewed by the Office of Management and
Budget under Executive Order 12866.
Regulatory Flexibility Act
The Secretary hereby certifies that the proposed rule will not have
a significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C.
601-602. This proposed rule merely ensures that religious organizations
are treated the same as other participants in the Homeless Providers
Grant and Per Diem Program. It creates no new economic impact.
Therefore, pursuant to 5 U.S.C. 605(b), this proposed rule is exempt
from the initial and final regulatory flexibility analysis requirement
of sections 603 and 604.
Unfunded Mandates
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of anticipated costs and benefits before
developing any rule that may result in an expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector of
$100 million or more in any given year. This rule would have no
consequential effect on State, local, or tribal governments.
Catalog of Federal Domestic Assistance Program
The Catalog of Federal Domestic Assistance program number is
64.024.
List of Subjects in 38 CFR Part 61
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Day care, Dental health, Drug abuse, Government contracts, Grant
programs-health, Grant programs-veterans, Health care, Health
facilities, Health professions, Health records, Homeless, Mental health
programs, Per-diem program, Reporting and recordkeeping requirements,
Travel and transportation expenses, Veterans.
Approved: May 30, 2003.
Anthony J. Principi,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, we propose to amend 38
CFR part 61 as follows:
PART 61--VA HOMELESS PROVIDERS GRANT AND PER DIEM PROGRAM
1. The authority citation for part 61 continues to read as follows:
Authority: 38 U.S.C. 501, 2002, 2011, 2012, 2061, 2064, 7721
note.
2. Revise Sec. 61.64 to read as follows:
Sec. 61.64 Religious organizations.
(a) Organizations that are religious or faith-based are eligible,
on the same basis as any other organization, to participate in VA
programs under this part. Neither the Federal Government nor a State or
local government receiving funds under this part shall discriminate
against an organization on the basis of the organization's religious
character or affiliation.
(b)(1) No organization may use direct financial assistance from VA
under this part to pay for any of the following:
(i) Religious worship, instruction, or proselytization; or
(ii) Equipment or supplies to be used for any of those activities.
(2) For purposes of this section, ``indirect financial assistance''
means Federal assistance in which a service provider receives program
funds through a voucher, certificate, agreement or other form of
disbursement, as a result of the independent and private choices of
individual beneficiaries. ``Direct financial assistance,'' means
Federal aid
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in the form of a grant, contract, or cooperative agreement where the
independent choices of individual beneficiaries do not determine which
organizations receive program funds.
(c) Organizations that engage in inherently religious activities,
such as worship, religious instruction, or proselytization, must offer
those services separately in time or location from any programs or
services funded with direct financial assistance from VA, and
participation in any of the organization's inherently religious
activities must be voluntary for the beneficiaries of a program or
service funded by direct financial assistance from VA.
(d) A religious organization that participates in VA programs under
this part will retain its independence from Federal, State, or local
governments and may continue to carry out its mission, including the
definition, practice and expression of its religious beliefs, provided
that it does not use direct financial assistance from VA under this
part to support any inherently religious activities, such as worship,
religious instruction, or proselytization. Among other things, faith-
based organizations may use space in their facilities to provide VA-
funded services under this part, without removing religious art, icons,
scripture, or other religious symbols. In addition, a VA-funded
religious organization retains its authority over its internal
governance, and it may retain religious terms in its organization's
name, select its board members and otherwise govern itself on a
religious basis, and include religious references in its organization's
mission statements and other governing documents.
(e) An organization that participates in a VA program under this
part shall not, in providing program assistance, discriminate against a
program beneficiary or prospective program beneficiary regarding
housing, supportive services, or technical assistance, on the basis of
religion or religious belief.
(f) If a State or local government voluntarily contributes its own
funds to supplement Federally funded activities, the State or local
government has the option to segregate the Federal funds or commingle
them. However, if the funds are commingled, this provision applies to
all of the commingled funds.
(Authority: 38 U.S.C. 501, 2002, 2011, 2012, 2061, 2064, 7721 note)
[FR Doc. 03-24320 Filed 9-29-03; 8:45 am]
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