[Federal Register: June 26, 2000 (Volume 65, Number 123)]
[Proposed Rules]
[Page 39491-39497]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jn00-22]
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Part III
Department of Education
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34 CFR Part 361
State Vocational Rehabilitation Services Program; Proposed Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 361
RIN 1820-AB52
State Vocational Rehabilitation Services Program
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary proposes to amend the regulations governing the
State Vocational Rehabilitation Services Program (VR program) by
revising the scope of available employment outcomes under the VR
program. The proposed regulations would redefine the term ``employment
outcome'' to include only those outcomes in which an individual with a
disability works in an integrated setting. This action is necessary to
reflect the purpose of Title I of the Rehabilitation Act of 1973, as
amended (Act) (29 U.S.C. 701-744), which is to enable individuals with
disabilities who participate in the VR program to achieve an
appropriate employment outcome in the competitive, integrated labor
market.
DATES: We must receive your comments by August 25, 2000.
ADDRESSES: Address all comments about these proposed regulations to
Fredric K. Schroeder, U.S. Department of Education, 400 Maryland
Avenue, SW., room 3028, Mary E. Switzer Building, Washington, DC 20202-
2531. Comments also may be sent by facsimile to (202) 205-9874. If you
prefer to send your comments through the Internet, use the following
address: comments@ed.gov.
You must include the term ``VR Regulations--Employment Outcome'' in
the subject line of your electronic message.
If you want to comment on the information collection requirements,
you must send your comments to the Office of Management and Budget at
the address listed in the Paperwork Reduction Act section of this
preamble. You may also send a copy of these comments to the Department
representative named in this section.
FOR FURTHER INFORMATION CONTACT: Beverlee Stafford, U.S. Department of
Education, 400 Maryland Avenue, SW., room 3014, Mary E. Switzer
Building, Washington, DC. 20202-2531. Telephone (202) 205-8831. If you
use a telecommunications device for the deaf (TDD), you may call (202)
205-5538.
Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to Katie Mincey, Director, Alternate Formats
Center, U.S. Department of Education, 400 Maryland Avenue, SW., room
1000, Mary E. Switzer Building, Washington, DC. 20202-2531. Telephone
(202) 260-9895. If you use a telecommunications device for the deaf
(TDD), you may call the Federal Information Relay Service (FIRS) at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
Invitation To Comment
We invite you to submit comments regarding these proposed
regulations. To ensure that your comments have maximum effect in
developing the final regulations, we urge you to identify clearly the
specific section or sections of the proposed regulations that each of
your comments addresses and to arrange your comments in the same order
as the proposed regulations.
We invite you to assist us in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden that might result from these proposed
regulations. Please let us know of any further opportunities we should
take to reduce potential costs or increase potential benefits while
preserving the effective and efficient administration of the VR
program.
During and after the comment period, you may inspect all public
comments about these proposed regulations in room 3214, Mary E. Switzer
Building, 330 C Street, SW., Washington, DC, between the hours of 8:30
a.m. and 4 p.m., Eastern time, Monday through Friday of each week
except Federal holidays.
Assistance to Individuals With Disabilities in Reviewing the
Rulemaking Record
On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of aid, you may call (202) 205-
8113 or (202) 260-9895. If you use a TDD, you may call the Federal
Information Relay Service at 1-800-877-8339.
Background
The State Vocational Rehabilitation Services Program (VR program)
makes available to individuals with disabilities, particularly those
with significant disabilities, necessary vocational rehabilitation (VR)
services so that they may enter or continue to work in the competitive,
integrated labor market along with the general population. The chief
measure of success of a State VR agency's efforts in serving a
participant in the VR program is whether the individual has achieved an
appropriate employment outcome, in particular a high-quality,
competitive job in an integrated setting. Integrated employment
settings generally refer to those settings that are typically found in
the community in which individuals with disabilities have the same
opportunity to interact with others as is given to any other person
(see 34 CFR 361.5(b)(30)(ii) of the current VR program regulations for
a detailed definition). Accordingly, this notice of proposed rulemaking
(NPRM) addresses the scope of available outcomes under the VR program
in order to ensure that program participants attain jobs in the
competitive, integrated labor market as the Act intends.
The statutory authority for the VR program, Title I of the Act,
has, over time, placed greater and greater emphasis on integration, a
fact further reflected in recent reauthorizations. As indicated in
section 100(a)(1) of the Act, a provision retained in the 1998
Amendments to the Act, individuals with disabilities, including
individuals with the most significant disabilities, have demonstrated
their ability to achieve gainful employment in integrated settings if
appropriate services and supports are provided. Recent legislative
history also reflects Congress' commitment to ensuring that individuals
with significant disabilities be able to progress to jobs in the
competitive integrated job market (see e.g., Senate Report 105-166, p.
13).
The scope of employment outcomes authorized under the VR program
must be consistent with the definition of ``employment outcome'' in
section 7(11) of the Act. That section of the Act, which explicitly
refers only to employment outcomes that occur in integrated settings,
defines ``employment outcome'' as full-time or, if appropriate, part-
time competitive employment in the integrated labor market, supported
employment, or any other vocational outcome the Secretary may determine
to be appropriate (including the vocational outcome of self-employment,
telecommuting, or business ownership), consistent with the requirements
of the Act [emphasis added].
Thus, the Act entrusts the Secretary to determine the scope of
employment outcomes, other than competitive employment (i.e.,
integrated work at or
[[Page 39493]]
above minimum wage--see 34 CFR 361.5(b)(10)) and supported employment
(integrated work with ongoing support services--see 34 CFR
361.5(b)(46)), which individuals with disabilities should pursue under
the VR program consistent with the Act's requirements.
Through this NPRM, we are proposing to amend the current
regulations governing the VR program (34 CFR part 361) to no longer
consider extended employment (also referred to as non-integrated or
sheltered employment) as an employment outcome under the VR program. We
believe the proposed regulatory changes are necessary to implement the
clear emphasis that the Act places on competitive employment and
supported employment--outcomes that occur in integrated settings. At
the same time, however, the proposed changes would not prohibit State
VR agencies from serving individuals, or enabling individuals to work,
in extended employment settings (also referred to as non-integrated or
sheltered settings) if appropriate to the individual, but would ensure
that those individuals are provided the services that they need to
transition to the competitive labor market in the community.
On February 28, 2000, we published an NPRM (65 FR 10620) that would
implement extensive changes to the current VR program regulations to
reflect statutory changes made by the Rehabilitation Act Amendments of
1998 (1998 Amendments). As mentioned previously, the proposal in this
new NPRM to change the regulatory definition of the term ``employment
outcome,'' and to implement corresponding changes to other sections of
the current regulations affected by the revised definition, are based
not only on the 1998 Amendments, but on the emphasis that the Act, over
time, has placed on enabling individuals in sheltered employment to
transition to employment outcomes in the competitive, integrated labor
market. Although these proposed changes were not developed in time to
be included in the February 28 NPRM, we consider this new NPRM critical
to realizing the full potential of individuals with significant
disabilities. Thus, it is our intent to implement these new changes as
part of the final regulations that follow the February 28 proposed
regulations.
We also note that the proposed regulations would not exclude from
the scope of ``employment outcomes'' under the VR program all positions
obtained by individuals with disabilities under certain types of set-
aside contracts authorized by the Javits-Wagner-O'Day Act (JWOD), 41
U.S.C. 46-48. For example, service-related jobs performed under JWOD
contracts and in settings that satisfy the definition of ``integrated
setting'' in 34 CFR 361.5(b)(30)(ii) (i.e., a setting typically found
in the community in which the VR program participant's interaction with
non-disabled persons is the same as that experienced by a non-disabled
person in a comparable position) would meet the definition of
``employment outcome'' in the proposed regulations. Those positions are
to be contrasted with jobs in sheltered settings performed under JWOD
contracts or other arrangements that are not integrated and would not
be considered employment outcomes. The determination as to whether any
job, including those obtained under JWOD contracts, meets the
regulatory definition of ``integrated setting,'' and therefore
qualifies as an ``employment outcome'' under the proposed regulations,
should be made on a case-by-case basis.
Section-by-Section Summary
Section 361.5 Applicable Definitions
Employment Outcome; Extended Employment
The chief revision to the current regulations that would be
implemented by this NPRM concerns the scope of outcomes, other than
competitive employment and supported employment, covered under the
definition of ``employment outcome.'' Specifically, the current
regulatory definition would be changed to include only employment in
integrated settings, meaning that jobs in sheltered or other non-
integrated settings would no longer be recognized as ``employment
outcomes'' under the VR program. In particular, ``extended
employment,'' which is defined in both the current and proposed
regulations as work in a non-integrated or sheltered setting for a
nonprofit entity along with any support services that the individual
needs in order to prepare for competitive employment, would not be an
authorized employment outcome under the proposed regulations.
The changes to the current regulations proposed in this NPRM, while
essential to fulfilling the expectation in the Act that individuals
with disabilities are generally capable of pursuing competitive,
integrated work in the community, should not cause great difficulty to
State VR units in administering their programs. Under the current
regulations, the VR program pays the short-term costs of services
(e.g., vocational evaluation, work adjustment, and other training
services) that enable an individual to perform work in an extended
employment setting. The ongoing costs of services associated with an
individual who remains in extended employment are typically borne by
other State and local resources. In addition, only a relatively small
number of individuals exit the VR program after obtaining non-
integrated employment (about 3.5% of outcomes nationwide in 1998, the
most current data available). Thus, it is evident that many State units
already have been deemphasizing non-integrated work as a final
employment goal for some time. Those units have come to realize, as is
reflected throughout the Act's legislative history, that in the past
individuals with disabilities were too often inappropriately placed in
sheltered settings as a final outcome rather than as a temporary
placement from which the individual could transition to a job in the
community.
The proposed regulations would continue to allow State units to use
extended employment jobs as interim steps for VR program participants.
The State unit, however, could only consider the individual to have
achieved an employment outcome after the individual transitions to
integrated work in the community. We believe this approach better
reflects the relationship between the VR program and sheltered
employment and is further supported by the relatively few VR program
participants who engage in extended employment. To the extent extended
employment continues to be used as a temporary worksite for an eligible
individual under the VR program, the State unit should continue to
provide services to that individual, but should not identify (for State
or Federal reporting purposes, for purposes of satisfying VR program
performance measures, etc.) that person's job as a successful outcome
until the individual enters the integrated labor market in the
community.
In addition, Secs. 361.47 and 361.55 of the proposed regulations,
which are discussed in the following paragraphs, specify recordkeeping
and annual review requirements, respectively, that are designed to
ensure that persons in extended employment receive necessary support in
order to continue to pursue integrated employment. We believe that
these proposed requirements, which are much the same as the
recordkeeping and review requirements in the current regulations, and
any burden associated with the proposed requirements, are necessary to
ensure that persons are able to pursue high-quality competitive
employment in the integrated labor market as the Act intends.
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Section 361.37 Establishment and Maintenance of Information and
Referral Programs
In order to ensure that individuals with disabilities who choose to
work in an extended employment setting long-term, rather than pursue
employment in an integrated setting under the VR program, are able to
access the services they need, Sec. 361.37(a) of the proposed
regulations would require that State VR agencies refer these
individuals to local extended employment providers. We are particularly
interested in comments from community rehabilitation programs and other
State and local service providers on the impact that the proposed
regulations would have on those resources that currently pay most of
the costs of serving individuals in extended employment. We also note
that persons who initially choose to pursue extended employment and
subsequently change their minds and seek competitive or other
integrated employment can still access the VR system. Also, while we
recognize that this proposed change would result in an additional
responsibility being placed on the State VR agency, we believe that any
burden associated with that responsibility is outweighed by the need to
ensure that individuals who choose sheltered work can access State and
local resources that support extended employment programs.
Section 361.47 Record of Services
We are proposing limited changes to the current regulations to
reflect the proposed revisions to the definition of ``employment
outcome'' and the review requirements in Sec. 361.55.
In sum, proposed changes to paragraph (g) of this section would
require a justification in the record of services for any decision on
the part of the State unit to provide a VR program participant services
in a non-integrated setting, including a decision to support the
individual in extended employment as an initial step toward integrated
employment. In addition, proposed paragraph (k) of this section would
be added to the current regulations to require documentation of the
annual reviews required under section 101(a)(14) of the Act and
Sec. 361.55 of the proposed regulations for individuals who achieved an
authorized (i.e., integrated) employment outcome but are compensated
through a wage certificate under section 14(c) of the Fair Labor
Standards Act (FLSA) (e.g., individuals in supported employment who
earn less than the minimum wage).
Finally, a State unit would also be required under the proposed
changes to this section to document follow-up reviews when it closes
the record of services for an individual in extended employment who
chooses to remain there long-term or who the State unit determines
cannot achieve integrated employment. As explained in the discussion on
Sec. 361.55, these individuals would not be considered to have achieved
an employment outcome under the VR program.
It should be noted that each of the documentation requirements in
the proposed regulations also is reflected in the February 28 NPRM
referred to in the Background section of this preamble.
Section 361.55 Annual Review of Individuals in Extended Employment and
Other Employment Under Special Certificate Provisions of the Fair Labor
Standards Act
Removing extended employment from the scope of available employment
outcomes under the discretion given to the Secretary under section
7(11)(C) of the Act necessitates changes to this section of the current
regulations. Initially, it should be noted that the proposed
regulations reflect the requirement in section 101(a)(14) of the Act
and the current regulations that the State unit conduct an annual
review of any VR program participant who has achieved an employment
outcome (i.e., integrated employment under the proposed regulations)
but is compensated under a wage certificate as authorized in section
14(c) of the FLSA. With regard to those participants in the VR program
who are still placed in extended employment, however, the State unit's
future obligations under the proposed regulations would depend on a
number of factors.
As indicated previously, we expect that most individuals in
extended employment would perform that work temporarily as a means of
training or otherwise preparing for competitive employment. Because the
State unit would continue to provide services to these individuals and
to review the individual's plan of services consistent with
102(b)(2)(E) of the Act until they successfully transition to a job in
an integrated setting, that individual's record of services would
remain open, and the review requirements in this revised section need
not apply.
On the other hand, if the State unit decides to close the record of
services of an individual in extended employment because it does not
believe the individual can achieve integrated employment (i.e., an
employment outcome under the proposed regulations) or because the
individual chooses to remain in extended employment, then the proposed
regulations would continue to require that the State unit conduct an
annual review and reevaluation (for 2 years and thereafter if requested
by the individual) of the individual's readiness for competitive
employment, that the individual be able to provide input into each
review, and that the State unit make maximum efforts to assist the
individual in transitioning to competitive employment.
Effective Date of Changes
Finally, we recognize that the proposed changes in this NPRM, while
supported by the Act, represent a departure from the past practice of
including non-integrated jobs among the scope of authorized employment
outcomes. Thus, in order to minimize the impact that these proposed
changes would have on State units or eligible individuals under the VR
program, we are proposing that the changes to the current regulations
in this NPRM take effect beginning in FY 2002 (i.e., October 1, 2001).
This delayed implementation date would give State units and other
providers of VR services more than a year to take whatever steps may be
necessary to meet the revised regulatory requirements. Most
importantly, we expect that the time afforded will enable States to
implement the proposed changes in a manner that is least disruptive to
VR program beneficiaries. Nonetheless, we intend to provide necessary
technical assistance to State units in order to assist those agencies
in making the transition required by the proposed regulations. We also
are particularly interested in comments on whether persons agree that
the delayed implementation date will give States sufficient time to
implement the proposed policy.
Goals 2000: Educate America Act
The Goals 2000: Educate America Act (Goals 2000) focuses the
Nation's education reform efforts on the eight National Education Goals
and provides a framework for meeting them. Goals 2000 promotes new
partnerships to strengthen schools and expands the Department's
capacities for helping communities to exchange ideas and obtain
information needed to achieve the goals.
These proposed regulations would address the National Education
Goal that every adult American, including individuals with
disabilities, will possess the knowledge and skills necessary to
compete in a global economy and exercise the rights and
responsibilities of citizenship.
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Executive Order 12866
1. Potential Costs and Benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action. The potential costs associated
with the proposed regulations are those resulting from statutory
requirements and those we have determined as necessary for
administering this program effectively and efficiently. Elsewhere in
this SUPPLEMENTARY INFORMATION section we identify and explain burdens
specifically associated with information collection requirements. See
the heading Paperwork Reduction Act of 1995.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these proposed regulations, we have determined that
the benefits would justify the costs.
We have also determined that this regulatory action would not
unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
Summary of Potential Costs and Benefits
We believe that the NPRM would substantially improve the State VR
Services Program and would yield substantial benefits in terms of
program management, efficiency, and effectiveness. The proposed
regulatory changes would align the VR program appropriately with the
statutory expectation that individuals with disabilities can in fact
achieve employment in the competitive labor market. The proposed
changes also include program requirements (e.g., those related to
referrals, documentation of service records, and reviews of persons in
extended employment) that are designed to ensure that individuals with
disabilities are supported in pursuing competitive jobs or are able to
access other resources that can assist those who choose extended
employment. We believe that the proposed regulations represent the
least burdensome way to implement the Act and fulfill important policy
objectives that we consider to be essential to the success of the
program and to persons with disabilities.
Elsewhere in this preamble we discuss other potential costs and
benefits of these proposed regulations under the following heading:
Section-by-Section Summary.
2. Clarity of the Regulations
Executive Order 12866 and the President's Memorandum of June 1,
1998 on ``Plain Language in Government Writing'' require each agency to
write regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
* Are the requirements in the proposed regulations clearly
stated?
* Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
* Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
Would the proposed regulations be easier to understand if we
divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol and a numbered heading; for example, Sec. 361.47
Record of services.)
* Could the description of the proposed regulations in the
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in
making the proposed regulations easier to understand? If so, how?
* What else could we do to make the proposed regulations
easier to understand?
Send any comments that concern how the Department could make these
proposed regulations easier to understand to the person listed in the
ADDRESSES section of the preamble.
Regulatory Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities. These proposed regulations would impact some community
rehabilitation programs that currently operate extended employment
programs, or execute Federal contracts under the Javits-Wagner-O'Day
Act, for individuals with disabilities. Those facilities rely on the
State VR Services Program, as well as other programs, for referrals of
persons for whom sheltered employment is appropriate. However, since
most costs of employing persons with disabilities in a sheltered
setting are born by programs other than the State VR Services Program,
and since State VR agencies could continue to provide support to
persons in extended employment settings (without considering that work
a successful employment outcome), we do not believe potential impact
would be significant.
Paperwork Reduction Act of 1995
Section 361.47 contains information collection requirements that
pertain to State recordkeeping, and section 361.55 contains information
collection requirements under the State plan. Under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507(d)), the Department of Education
has submitted a copy of these sections to the Office of Management and
Budget (OMB) for its review.
Collection of Information: State Vocational Rehabilitation Services
Program
The information to be collected includes State plan assurances to
meet statutory requirements and other required information that the
Department considers important to the efficient and effective
administration of the VR program. Required information that is
unrelated to the State plan is necessary for purposes of Department
monitoring of program performance and compliance.
The Department needs and uses the information related to the State
plan for the VR program in order to ensure compliance with Federal
requirements. An approved State plan is necessary for a State to
receive a grant under the VR program. All State plan assurances are
reported once unless the State has submitted the information previously
or determines that modifications are necessary, or the Secretary
requires modifications due to changes in State policy, Federal law
(including regulations), interpretation of the Act by a Federal court
or the highest court in the State, or a finding by the Secretary of
State noncompliance with the requirements of the Act.
As previously noted, the Department published an NPRM on February
28, 2000 (65 FR 10620) that proposed extensive changes to the
regulations under this part in order to conform to the 1998 Amendments
to the Act. In the February 28, 2000 NPRM, we estimated an annual
reporting and recordkeeping burden for the collection of information to
average 12,220 hours for each response for 82 respondents, or a total
of 1,002,050 burden hours. The annual reporting and recordkeeping
burden for the collection of information in this new NPRM is included
in that total since the information collection requirements proposed in
the new NPRM were included in the February 28, 2000 NPRM as well
(although some of the requirements were located in other sections in
the prior NPRM). Nonetheless, it is estimated that the actual burden
for the information collection requirements in sections 361.47(g) and
(k) and 361.55 would average 87 hours for each response for 82
respondents, including the time for reviewing instructions, searching
existing data sources, gathering and
[[Page 39496]]
maintaining the data needed, and completing and reviewing the
collection of information. Thus, we estimate the total annual reporting
and recordkeeping burden for this specific collection to be 7,134 hours
of the total 1,002,050 hours identified in the NPRM published on
February 28, 2000.
If you want to comment on the information collection requirements,
please send your comments to the Office of Information and Regulatory
Affairs, OMB, room 10235, New Executive Office Building, Washington, DC
20508; Attention: Desk Officer for U.S. Department of Education. You
may also send a copy of these comments to the Department representative
named in the ADDRESSES section of this preamble.
We consider your comments on this proposed collection of
information in--
* Deciding whether the proposed collection is necessary for
the proper performance of our functions, including whether the
information will have practical use;
* Evaluating the accuracy of our estimate of the burden of
the proposed collection, including the validity of our methodology and
assumptions;
* Enhancing the quality, usefulness, and clarity of the
information we collect; and
* Minimizing the burden on those who must respond. This
include exploring the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology; e.g., permitting electronic submission of
responses.
OMB is required to make a decision concerning the collection of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, to ensure that OMB gives your comments full consideration,
it is important that OMB receives the comments within 30 days of
publication. This does not affect the deadline for your comments to us
on the proposed regulations.
Intergovernmental Review
This program is subject to Executive Order 12372 and the
regulations in 34 CFR part 79. One of the objectives of the Executive
order is to foster an intergovernmental partnership and a strengthening
federalism. The Executive order relies on processes developed by State
and local governments for coordination and review of proposed Federal
financial assistance.
This document provides early notification of our specific plans and
actions for this program.
Assessment of Educational Impact
The Secretary particularly requests comments on whether these
proposed regulations would require transmission of information that any
other agency or authority of the United States gathers or makes
available.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in the text or
Adobe Portable Document Format (PDF) on the Internet at either of the
following sites:
http://ocfo.ed.gov/fedreg.htm
http://www.ed.gov/news.html
To use the PDF you must have Adobe Acrobat Reader, which is available
free at either of the previous sites. If you have questions about using
the PDF, call the U.S. Government Printing Office (GPO), toll free, at
1-888-293-6498; or in the Washington, DC, area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: http://
www.access.gpo.gov/nara/index.html
(Catalog of Federal Domestic Assistance Number: 84.126 State
Vocational Rehabilitation Services Program)
List of Subjects in 34 CFR Part 361
Reporting and recordkeeping requirements, State-administered grant
program--education, Vocational rehabilitation.
Dated: June 20, 2000.
Richard W. Riley,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary proposes
to amend part 361 of title 34 of the Code of Federal Regulations as
follows:
PART 361--STATE VOCATIONAL REHABILITATION SERVICES PROGRAM
1. The authority citation for part 361 continues to read as
follows:
Authority: 29 U.S.C. 709(c), unless otherwise noted.
2. Section Sec. 361.5 is amended by revising paragraphs (b)(15) and
(b)(18), and the authority citations following each of those
paragraphs, to read as follows:
Sec. 361.5 Applicable definitions
* * * * *
(b) * * *
(15) Employment outcome means, with respect to an individual,
entering or retaining full-time or, if appropriate, part-time
competitive employment in the integrated labor market, supported
employment, or any other type of employment in an integrated setting,
including self-employment, telecommuting, or business ownership, that
is consistent with an individual's strengths, resources, priorities,
concerns, abilities, capabilities, interests, and informed choice.
(Authority: Sections 7(11), 12(c), 100(a)(2), and 102(b)(3)(A) of
the Act; 29 U.S.C. 705(11), 709(c), 720(a)(2), and 722(b)(3)(A))
* * * * *
(18) Extended employment means work in a non-integrated or
sheltered setting for a public or private nonprofit agency or
organization that an eligible individual performs for the purposes of
training or otherwise preparing for competitive employment and for
which the individual receives--
(i) Compensation in accordance with the Fair Labor Standards Act;
and
(ii) Any support services that the individual needs in order to
prepare for competitive employment.
(Authority: Section 12(c) of the Act; 29 U.S.C. 709(c))
* * * * *
3. Section 361.37 is amended by removing the word ``and'' at the
end of paragraph (a)(2); removing the period at the end of paragraph
(a)(3), and adding, in its place, ``; and''; adding a new paragraph
(a)(4); and revising the authority citation following the section to
read as follows:
Sec. 361.37 Establishment and maintenance of information and referral
programs.
(a) General provisions. The State plan must assure that--
* * * * *
(4) The State unit will refer to local extended employment
providers an individual with a disability who makes an informed choice
to pursue extended employment as the individual's employment goal.
* * * * *
(Authority: Sec. 12(c) and 101(a)(20) of the Act; 29 U.S.C. 709(c)
and 721(a)(20))
4. Section 361.47 is amended by revising paragraph (g), adding a
new paragraph (k), and revising the authority citation following the
section to read as follows:
Sec. 361.47 Record of services.
* * * * *
(g) In the event that an individual's IPE provides for vocational
rehabilitation services in a non-integrated setting, including an
extended employment setting, a
[[Page 39497]]
justification to support the need for the non-integrated setting.
* * * * *
(k) In the event an individual achieves an employment outcome in
which the individual is compensated in accordance with section 14(c) of
the Fair Labor Standards Act or the designated State unit closes the
record of services of an individual in extended employment on the basis
that the individual is unable to achieve an employment outcome
consistent with Sec. 361.5(b)(15) or that the individual through
informed choice chooses to remain in extended employment, documentation
of the results of the annual reviews required under Sec. 361.55, the
individual's input into those reviews, and the individual's or, if
appropriate, the individual's representative's acknowledgement that
those reviews were conducted.
(Authority: Sections 101(a)(6), (9), (14), (20) and 102(a), (b), and
(d) of the Act; 29 U.S.C. 721(a)(6), (9), (14), (20) and 722(a),
(b), and (d))
* * * * *
5. Section 361.55 is revised to read as follows:
Sec. 361.55 Annual review of individuals in extended employment and
other employment under special certificate provisions of the Fair Labor
Standards Act.
(a) The State plan must assure that the designated State unit
conducts an annual review and reevaluation in accordance with the
requirements in paragraph (b) of this section for an individual with a
disability served under this title--
(1) Who has achieved an employment outcome in which the individual
is compensated in accordance with section 14(c) of the Fair Labor
Standards Act; or
(2) Whose record of services is closed while the individual is in
extended employment on the basis that the individual is unable to
achieve an employment outcome consistent with Sec. 361.5(b)(15) or the
individual through informed choice chooses to remain in extended
employment.
(b) For each individual with a disability who meets the criteria in
paragraph (a) of this section, the designated State unit must--
(1) Annually review and reevaluate the status of each individual
for 2 years after the individual's record of services is closed (and
thereafter if requested by the individual or, if appropriate, the
individual's representative) to determine the interests, priorities,
and needs of the individual with respect to competitive employment or
training for competitive employment;
(2) Enable the individual or, if appropriate, the individual's
representative to provide input into the review and reevaluation and
must document that input in the record of services, consistent with
Sec. 361.47(k), with the individual's or, as appropriate, the
individual's representative's signed acknowledgment that the review and
reevaluation have been conducted; and
(c) Make maximum efforts, including identifying and providing
vocational rehabilitation services, reasonable accommodations, and
other necessary support services, to assist the individual in engaging
in competitive employment as defined in Sec. 361.5(b)(10).
(Authority: Sections 12(c) and 101(a)(14) of the Act; 29 U.S.C.
709(c) and 721(a)(14))
[FR Doc. 00-15991 Filed 6-23-00; 8:45 am]
BILLING CODE 4000-01-U