B-105303, JAN. 24, 1964
Highlights
VETERANS ADMINISTRATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 14. IT IS PROVIDED IN 38 U.S.C. 1666. THAT A DETERMINATION OF LIABILITY OF A SCHOOL FOR A FALSE CERTIFICATION MAY BE MADE WHERE (1) THE FALSE CERTIFICATION WAS THE SOLE CAUSE OF THE OVERPAYMENT. (2) IN CASE OTHER FACTORS ARE INVOLVED IF THERE IS SUBSTANTIAL EVIDENCE OF WILFULNESS. IT IS DETERMINED THAT THE FALSE CERTIFICATION WAS THE TRUE CAUSE OF THE OVERPAYMENT. THE PROPOSED CHANGES WOULD PROVIDE ALSO THAT THE SCHOOL OR ESTABLISHMENT WILL BE HELD NOT LIABLE IF IT IS FOUND THAT THE FALSE CERTIFICATION WAS NOT THE CAUSE OF THE OVERPAYMENT. OR WHERE IT IS DETERMINED THAT THE CONTRIBUTING FACTORS MITIGATE THE ACT OF THE SCHOOL OR INSTITUTION IN SUBMITTING THE FALSE CERTIFICATION TO THE EXTENT THAT SUCH ACT IS NOT CONSIDERED THE PRINCIPAL CAUSE OF THE OVERPAYMENT.
B-105303, JAN. 24, 1964
TO ADMINISTRATOR, VETERANS ADMINISTRATION:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 14, 1963, TRANSMITTING FOR OUR COMMENT PROPOSED CHANGES IN VETERANS ADMINISTRATION REGULATION 1230R TO IMPLEMENT THE PROVISIONS OF 38 U.S.C. 1666 RELATING TO THE RECOVERY OF OVERPAYMENTS OF EDUCATION AND TRAINING ALLOWANCES.
IT IS PROVIDED IN 38 U.S.C. 1666, IN MATERIAL PART, THAT:
"WHENEVER THE ADMINISTRATOR FINDS THAT AN OVERPAYMENT HAS BEEN MADE TO A VETERAN AS THE RESULT OF (1) THE WILLFUL OR NEGLIGENT FAILURE OF AN EDUCATION INSTITUTION OR TRAINING ESTABLISHMENT TO REPORT, AS REQUIRED BY THIS CHAPTER AND APPLICABLE REGULATIONS, TO THE VETERANS' ADMINISTRATION EXCESSIVE ABSENCES FROM A COURSE, OR DISCONTINUANCE OR INTERRUPTION OF A COURSE BY THE VETERAN OR (2) FALSE CERTIFICATION BY THE EDUCATIONAL INSTITUTION OR TRAINING ESTABLISHMENT, THE AMOUNT OF SUCH INSTITUTION OR ESTABLISHMENT, AND MAY BE RECOVERED IN THE SAME MANNER AS ANY OTHER DEBT DUE THE UNITED STATES * * *.'
UNDER THE PROPOSED CHANGES THE REGULATION WOULD BE MODIFIED TO PROVIDE, IN EFFECT, THAT A DETERMINATION OF LIABILITY OF A SCHOOL FOR A FALSE CERTIFICATION MAY BE MADE WHERE (1) THE FALSE CERTIFICATION WAS THE SOLE CAUSE OF THE OVERPAYMENT; (2) IN CASE OTHER FACTORS ARE INVOLVED IF THERE IS SUBSTANTIAL EVIDENCE OF WILFULNESS, NEGLIGENCE OR INTENT TO DECEIVE ON THE PART OF THE SCHOOL, OR (3) FROM A CONSIDERATION OF ALL CONTRIBUTING FACTORS, IT IS DETERMINED THAT THE FALSE CERTIFICATION WAS THE TRUE CAUSE OF THE OVERPAYMENT. THE PROPOSED CHANGES WOULD PROVIDE ALSO THAT THE SCHOOL OR ESTABLISHMENT WILL BE HELD NOT LIABLE IF IT IS FOUND THAT THE FALSE CERTIFICATION WAS NOT THE CAUSE OF THE OVERPAYMENT, OR WHERE IT IS DETERMINED THAT THE CONTRIBUTING FACTORS MITIGATE THE ACT OF THE SCHOOL OR INSTITUTION IN SUBMITTING THE FALSE CERTIFICATION TO THE EXTENT THAT SUCH ACT IS NOT CONSIDERED THE PRINCIPAL CAUSE OF THE OVERPAYMENT.
IT MAY BE OBSERVED THAT THE STATUTE DOES NOT PROVIDE THAT A FALSE CERTIFICATION BY THE INSTITUTION OR ESTABLISHMENT MUST BE THE SOLE OR PRINCIPAL CAUSE OF THE OVERPAYMENT OR THAT THERE MUST BE EVIDENCE OF WILFULNESS, NEGLIGENCE OR INTENT TO DECEIVE ON THE PART OF THE INSTITUTION. WE BELIEVE SUCH PROVISIONS WERE NOT INCLUDED FOR THE REASON THAT THIS WOULD REMOVE TO A SUBSTANTIAL DEGREE THE INTENDED EFFECTIVENESS CONTEMPLATED BY THE LEGISLATION; THAT IS, TO PLACE RESPONSIBILITY UPON THE INSTITUTIONS IN FURNISHING THE INFORMATION CERTIFIED BY THEM AND PERMIT RELIANCE BY THE GOVERNMENT UPON THE MONTHLY OR PERIODIC CERTIFICATIONS REQUIRED IN PROCESSING PAYMENTS TO THE VETERANS, THEREBY MINIMIZING THE PROBABILITY OF OVERPAYMENTS DUE TO ERRONEOUS CERTIFICATIONS AND ELIMINATING THE COST OF PREPARING AND SUBMITTING DETAILED VOUCHER SUPPORT.
WE THEREFORE BELIEVE THAT THE PROPOSED CHANGES ARE INCONSISTENT WITH THE PURPOSE AND INTENT, AS WELL AS THE PROVISIONS OF THE STATUTE, DETERMINATIONS OF THIS CHARACTER, IN OUR OPINION, SHOULD BE MADE ON THE BASIS OF THE FACTS AND CIRCUMSTANCES OF EACH CASE AND IN A MANNER WHICH CONFORMS TO THE STATUTORY PURPOSE AND REQUIREMENTS.