[Federal Register: January 22, 2001 (Volume 66, Number 14)]
[Rules and Regulations]
[Page 7249-7258]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22ja01-34]
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Part XVI
Department of Education
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34 CFR Part 361
State Vocational Rehabilitation Services Program; Final Rule
[[Page 7250]]
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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: Final regulations.
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SUMMARY: The Secretary amends the regulations governing the State
Vocational Rehabilitation Services Program (VR program) by revising the
scope of employment outcomes under the VR program. These regulations
redefine the term ``employment outcome'' (as it applies to the VR
program) to mean 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),
which is to enable individuals with disabilities who participate in the
VR program to achieve an employment outcome in an integrated setting.
DATES: These regulations are effective October 1, 2001, but may be
implemented by States prior to that date, as discussed in the appendix.
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
alternative 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: The VR program provides necessary vocational
rehabilitation (VR) services to enable eligible individuals with
disabilities, particularly those with significant disabilities, to
enter or continue to work in the integrated labor market along with the
general population. Through the VR program, State agencies work with
individuals with disabilities to assist those individuals in achieving
employment, ideally a competitive job in an integrated setting.
Integrated employment settings 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)(33)(ii) for a detailed definition).
Accordingly, these regulations revise the scope of employment outcomes
under the VR program in order to assist program participants to attain
jobs in an integrated setting.
On June 26, 2000, we published a notice of proposed rulemaking
(NPRM) for this part, 34 CFR part 361, in the Federal Register (65 FR
39492) in which we proposed the major changes that are to take effect
in these final regulations. It is important that we clarify that on
January 17, 2000, we published final regulations for this part in the
Federal Register to implement changes to the Rehabilitation Act of 1973
made by the Rehabilitation Act Amendments of 1998 contained in Title IV
of the Workforce Investment Act of 1998 (WIA), as amended (1998
Amendments). The final regulations being promulgated in this present
publication are pursuant to the June 26, 2000 NPRM and establish
additional changes to 34 CFR part 361 that were not included in the
final regulations implementing the 1998 Amendments published in the
Federal Register on January 17, 2000.
We decided to publish these final regulations (revising the term
``employment outcome'' as it applies to the VR program) separately from
the final regulations implementing the 1998 Amendments since these
regulations do not take effect until fiscal year (FY) 2002 (or sooner
at the discretion of each State). In contrast, the final regulations
implementing the 1998 Amendments will be effective for all States 30
days after the date of publication. Moreover, we are publishing these
regulations, with their delayed effective date, at this time in order
to give State units, individuals with disabilities, and other service
providers sufficient time to prepare for the changes that will result
from these regulatory changes.
The proposed regulatory changes that we discussed in the preamble
to the NPRM preceding these final regulations (65 FR 39492-39494) have
been maintained in these final regulations. These changes include the
following:
Amending the regulatory definition of ``employment
outcome'' under the VR program to refer to outcomes that occur in
integrated settings.
Amending the regulatory referral requirements to require
the State unit to refer to local extended employment providers any
individual with a disability who makes an informed choice to pursue
extended employment (also referred to as ``non-integrated employment''
or ``sheltered employment'') as his or her long-term employment goal.
Making conforming changes to the regulatory requirements
concerning records of service and annual reviews of non-competitive
outcomes.
As we discussed in detail in the preamble to the NPRM, the
statutory authority for redefining the term ``employment outcome,'' for
purposes of the VR program, is based on section 7(11) of the Act. That
statutory provision defines ``employment outcome'' under the VR program
as full-time or, if appropriate, part-time competitive employment in
the integrated labor market, supported employment, or any other
vocational outcome, as defined by the Secretary (including the
vocational outcome of self-employment, telecommuting, or business
ownership), that is consistent with the Act. Accordingly, the Act
entrusts the Secretary to determine the scope of employment outcomes,
other than competitive employment (i.e., integrated work at or above
minimum wage--see 34 CFR 361.5(b)(11)) and supported employment (i.e.,
integrated work with ongoing support services--see 34 CFR
361.5(b)(53)), that individuals with disabilities may pursue under the
VR program. Pursuant to this authority, the Secretary has determined
that defining ``employment outcome'' under the VR program as employment
that occurs in integrated settings is necessary to ensure that persons
with significant disabilities are supported in pursuing competitive and
supported employment. We believe this change is consistent with the
Act's emphasis on the integration into society of persons with
disabilities and on the ability of individuals with disabilities,
including those with the most significant disabilities, to achieve
employment in integrated settings if necessary services and supports
are provided.
We also noted in the NPRM, and discuss at length in the Analysis of
Comments and Changes in the appendix to these regulations, that the
regulatory changes we are establishing do not affect the ability of
State VR agencies from serving individuals in extended employment
settings for purposes of preparing those individuals for employment in
integrated settings. The key change is that extended employment, for
purposes of participating in the VR program, represents an interim step
in the
[[Page 7251]]
rehabilitation process rather than an end point of that process.
At the same time, we note that some persons with disabilities may
prefer to work in extended employment facilities long-term. In
recognition of that fact, and because we fully value the choice of work
made by each person with a disability (regardless of whether that work
occurs in an integrated setting), we have sought to ensure through
these regulations that those wanting to work in extended employment can
access the services they need directly from local extended employment
facilities.
In addition, we note that many jobs obtained by individuals with
disabilities under certain types of set-aside contracts authorized by
the Javits-Wagner-O'Day Act (JWOD), 41 USC 46-48, satisfy the
definition of ``employment outcome'' under the VR program. More
specifically, those service-related and other jobs performed under JWOD
contracts or other programs that satisfy the definition of ``integrated
setting'' in 34 CFR 361.5(b)(33)(ii) would constitute an ``employment
outcome'' (for purposes of the VR program) under these regulations. 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'' (for
purposes of the VR program), must be made by State units on a case-by-
case basis.
These final regulations include limited changes from the NPRM. In
particular, while retaining the proposed October 1, 2001, effective
date, we have clarified that States may implement the changes sooner at
their discretion. The purpose of this sliding effective date is to
reflect the fact that some States already have implemented policies in
which all VR program participants pursue employment in an integrated
setting. In addition, we have amended the proposed regulations to--
Amend the regulatory definition of ``extended employment''
to eliminate redundant language. This definition also reflects the fact
that some individuals may enter extended employment for training and
other job-readiness purposes through the VR program, while others may
enter it for long-term employment through other resources. Therefore,
we have deleted from the definition any implication that training
serves as the sole purpose of extended employment. Participants in the
VR program who receive VR training services on a transitional basis in
an extended employment setting may receive other VR services as well,
such as diagnostics and assessment services, in an extended employment
setting;
Require that, before referring to local extended
employment providers an individual with a disability who chooses to
pursue extended employment, the State unit must provide the individual
with information concerning the VR program, integrated employment
options, the circumstances in which an individual can receive VR
services in an extended employment setting, and the individual's
ability to return to the VR agency at any point that he or she decides
to pursue employment in an integrated setting, and, as appropriate,
refer the individual to the Social Security Administration in order to
obtain information concerning the ability of individuals with
disabilities to work while receiving benefits from the Social Security
Administration;
Require that applicants under the VR program who are
unable to work in an integrated setting be referred to local extended
employment providers;
Require that individuals who were initially found eligible
for VR services, but are later determined unable to work in an
integrated setting, be referred to local extended employment providers;
and
Include technical amendments to other sections of the
current regulations (specifically, Secs. 361.45 and 361.46 concerning
the individualized plan for employment and Sec. 361.56 concerning
closure of the record of services) that were not included in the NPRM
but are necessary to conform to the revised definition of the term
``employment outcome'' under the VR program.
We explain more fully each of these changes in the Analysis of
Comments and Changes in Appendix B at the end of these final
regulations.
We also include a set of general questions and answers in Appendix
A to these regulations, which will be codified in the Code of Federal
Regulations. These questions and answers provide a short explanation of
the changes made by these final regulations pursuant to comments
received by the public.
Finally, we wish to emphasize that nothing in these final
regulations is intended to alter the fact that extended employment is a
legitimate and valued employment option for people with disabilities
(e.g., those who make an informed choice to work in an extended
employment setting). Nor do these regulations have any effect on the
requirements of other Federal programs that financially support
extended employment facilities, including definitions of terms such as
``employment,'' ``job,'' or ``work'' used in those programs or
corresponding Federal statutes. The chief purpose of these regulations
is to ensure, as we believe Title I of the Act intends, that
participants in the VR program, particularly those with significant
disabilities, are afforded a full opportunity to integrate within their
communities and participate in jobs that are available to the general
population.
Analysis of Comments and Changes
In response to our invitation in the NPRM, more than 3,000 parties
submitted comments on the proposed regulations. An analysis of the
comments and of the changes in the regulations since publication of the
NPRM is published in Appendix B at the end of these final regulations.
We group major issues according to subject. We discuss other
substantive issues under the sections of the regulations to which they
pertain. Generally, we do not address technical and other minor
changes, as well as suggested changes that the law does not authorize
the Secretary to make.
National Education Goals
The eight National Education Goals focus the Nation's education
reform efforts and provide a framework for improving teaching and
learning.
These regulations 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.
Executive Order 12866
We have reviewed these final regulations in accordance with
Executive Order 12866. Under the terms of the order, we have assessed
the potential costs and benefits of this regulatory action.
The potential costs associated with these final regulations are
those resulting from statutory requirements and those we have
determined as necessary for administering this program effectively and
efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these final regulations, we have determined that
the benefits of the final regulations justify the costs.
We also have determined that this regulatory action does not unduly
interfere with State, local, and tribal governments in the exercise of
their governmental functions.
[[Page 7252]]
Summary of Potential Costs and Benefits
We discussed the potential costs and benefits of these final
regulations in the preamble to the NPRM (65 FR 39492-39496), including
throughout the section-by-section analysis. Our analysis of potential
costs and benefits generally remains the same as in the NPRM, although
we include additional discussion of potential costs and benefits in
Appendix B to these final regulations titled Analysis of Comments and
Changes.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995 does not require you to respond
to a collection of information unless it displays a valid Office of
Management and Budget (OMB) control number. We display the valid OMB
control number assigned to the collection of information in these final
regulations at the end of the affected sections of the 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 strengthened
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.
Federalism
Executive Order 13132 requires us to ensure meaningful and timely
input by State and local elected officials in the development of
regulatory policies that have federalism implications. ``Federalism
implications'' means substantial direct effects on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government.
These regulations implement various statutory changes to the State
Vocational Rehabilitation Services Program. We do not believe that
these regulations have federalism implications as defined in Executive
Order 13132 or that they preempt State law. Accordingly, the Secretary
has determined that these regulations do not contain policies that have
federalism implications.
Assessment of Educational Impact
In the NPRM we requested comments on whether the proposed
regulations would require transmission of information that any other
agency or authority of the United States gathers or makes available.
Based on the response to the NPRM and on our review, we have
determined that these final regulations do not 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 text or Adobe
Portable Document Format (PDF) on the Internet at either of the
following sites:
http://ocfo.ed.gov/fedreg.htm
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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: December 18, 2000.
Richard W. Riley,
Secretary of Education.
For the reasons discussed in the preamble and the appendix to these
regulations, the Secretary amends 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 361.5 is amended by revising paragraphs (b)(16) and
(b)(19) to read as follows:
Sec. 361.5 Applicable definitions.
* * * * *
(b) * * *
(16) Employment outcome means, with respect to an individual,
entering or retaining full-time or, if appropriate, part-time
competitive employment, as defined in Sec. 361.5(b)(11), 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.
* * * * *
(19) Extended employment means work in a non-integrated or
sheltered setting for a public or private nonprofit agency or
organization that provides compensation in accordance with the Fair
Labor Standards Act.
* * * * *
3. Section 361.37 is amended by--
A. Redesignating paragraphs (b) and (c) as paragraphs (c) and (d)
respectively;
B. Adding a new paragraph (b); and
C. Revising the authority citation following the section to read as
follows:
Sec. 361.37 Information and referral programs.
* * * * *
(b) The State unit must 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.
Before making the referral required by this paragraph, the State unit
must--
(1) Consistent with Sec. 361.42(a)(4)(i) of this part, explain to
the individual that the purpose of the vocational rehabilitation
program is to assist individuals to achieve an employment outcome as
defined in Sec. 361.5(b)(16) (i.e., employment in an integrated
setting);
(2) Consistent with Sec. 361.52 of this part, provide the
individual with information concerning the availability of employment
options, and of vocational rehabilitation services, in integrated
settings;
(3) Inform the individual that services under the vocational
rehabilitation program can be provided to eligible individuals in an
extended employment setting if necessary for purposes of training or
otherwise preparing for employment in an integrated setting;
(4) Inform the individual that, if he or she initially chooses not
to pursue employment in an integrated setting, he or she can seek
services from the designated State unit at a later date if, at that
time, he or she chooses to pursue employment in an integrated setting;
and
[[Page 7253]]
(5) Refer the individual, as appropriate, to the Social Security
Administration in order to obtain information concerning the ability of
individuals with disabilities to work while receiving benefits from the
Social Security Administration.
* * * * *
(Authority: Sections 7(11), 12(c), 101(a)(5)(D), 101(a)(10)(C)(ii),
and 101(a)(20) of the Act; 29 U.S.C. 709(c), 721(a)(5)(D),
721(a)(10)(C)(ii), and 721(a)(20))
4. Section 361.43 is amended by revising paragraph (d) and revising
the authority citation following the section to read as follows:
Sec. 361.43 Procedures for ineligibility determination.
* * * * *
(d) Refer the individual--
(1) To other programs that are part of the One-Stop service
delivery system under the Workforce Investment Act that can address the
individual's training or employment-related needs; or
(2) To local extended employment providers if the ineligibility
determination is based on a finding that the individual is incapable of
achieving an employment outcome as defined in Sec. 361.5(b)(16).
* * * * *
(Authority: Sections 12(c), 102(a)(5), and 102(c) of the Act; 29
U.S.C. 709(c), 722(a)(5), and 722(c))
5. Section 361.45 is amended by revising paragraph (b)(2) to read
as follows:
Sec. 361.45 Development of the individualized plan for employment.
* * * * *
(b) * * *
(2) The IPE must be designed to achieve a specific employment
outcome, as defined in Sec. 361.5(b)(16), that is selected by the
individual consistent with the individual's unique strengths,
resources, priorities, concerns, abilities, capabilities, interests,
and informed choice.
* * * * *
6. Section 361.46 is amended by revising paragraph (a)(1) to read
as follows:
Sec. 361.46 Content of the individualized plan for employment.
(a) * * *
(1) A description of the specific employment outcome, as defined in
Sec. 361.5(b)(16), that is chosen by the eligible individual and is
consistent with the individual's unique strengths, resources,
priorities, concerns, abilities, capabilities, career interests, and
informed choice.
* * * * *
7. Section 361.47 is amended by revising paragraphs (a)(8) and
(a)(10) to read as follows:
Sec. 361.47 Record of services.
(a) * * *
(8) In the event that an individual's IPE provides for vocational
rehabilitation services in a non-integrated setting, a justification to
support the need for the non-integrated setting.
* * * * *
(10) 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)(16) or that an eligible individual
through informed choice chooses to remain in extended employment,
documentation of the results of the annual reviews required under
Sec. 361.55, of the individual's input into those reviews, and of the
individual's or, if appropriate, the individual's representative's
acknowledgment that those reviews were conducted.
* * * * *
8. 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 part--
(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)(16) or that
the individual made an informed choice 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(a)(10), with the individual's or, as appropriate, the
individual's representative's signed acknowledgment that the review and
reevaluation have been conducted; and
(3) 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)(11).
(Approved by the Office of Management and Budget under control
number 1820-0500.)
(Authority: Sections 12(c) and 101(a)(14) of the Act; 29 U.S.C.
709(c) and 721(a)(14))
9. Section 361.56 is amended by revising paragraph (a) to read as
follows:
Sec. 361.56 Requirements for closing the record of services of an
individual who has achieved an employment outcome.
* * * * *
(a) Employment outcome achieved. The individual has achieved the
employment outcome that is described in the individual's IPE in
accordance with Sec. 361.46(a)(1) and is consistent with the
individual's strengths, resources, priorities, concerns, abilities,
capabilities, interests, and informed choice.
* * * * *
10. Sections 361.10, 361.12, 361.13, 361.14, 361.15, 361.16,
361.17, 361.18, 361.19, 361.20, 361.21, 361.22, 361.23, 361.24, 361.25,
361.26, 361.27, 361.28, 361.29, 361.30, 361.31, 361.32, 361.34, 361.35,
361.36; 361.37, 361.38, 361.40, 361.41, 361.46, 361.47, 361.48, 361.49,
361.50, 361.51, 361.52, 361.53, 361.54, 361.57, 361.60 and 361.62 are
amended by adding after the section and before the authority citation
``(Approved by the Office of Management and Budget under control number
1820-0500)''.
11. Appendix A is added to part 361 to read as follows:
Appendix A to Part 31--Questions and Answers
The following questions and answers provide a summary of some of
the most
[[Page 7254]]
common and critical questions that we received regarding this part
361 and the applicable responses. As is evident from the responses,
we maintain that redefining the term ``employment outcome'' for
purposes of the VR program to mean outcomes that occur in integrated
settings will promote the provision of opportunities for all VR-
eligible individuals to pursue the types of jobs that generally are
available to the public.
Is Extended Employment Still a Legitimate Employment Option?
Yes. Employment in a sheltered setting is a legitimate and
valuable employment option for individuals with disabilities.
Implementation of these regulations will not change that fact.
Individuals still may choose to pursue long-term extended employment
outside of the VR program, and these regulations ensure that those
individuals' needs are met by requiring the VR agency to make the
necessary referral to local extended employment providers.
Do the Regulations Restrict Individual Choice?
No. We interpret the concept of individual choice in the Act as
a choice among the employment outcomes under the VR program
specified in the statute or by the Secretary in regulations.
Extended employment (i.e., sheltered or non-integrated
employment) remains both an initial step toward achieving integrated
employment under the VR program and a long-term employment option
through sources of support other than the VR program. In recognizing
that some individuals with disabilities may wish to work in an
extended employment setting, these regulations require the VR agency
to ensure that these individuals are afforded the opportunity to do
so by referring them to local extended employment providers. Those
providers currently support the vast majority of sheltered workers
through non-VR program resources. Moreover, persons wishing to
prepare for integrated employment by initially working in an
extended employment setting also may do so. In these cases, the VR
agency cannot discontinue VR services until the individual
transitions to integrated work in the community.
Can State Agencies Refuse To Serve Those With the Most Significant
Disabilities?
No. Both the Act and regulations guard against that result.
Persons with disabilities may not be excluded from the VR program
based on an assumption or belief that the individual is incapable of
working in an integrated setting. Rather, State units are required
to establish clear and convincing evidence that an individual is
incapable of achieving an employment outcome, for purposes of the VR
program, and must conduct a trial work assessment of the
individual's abilities before it can refuse services to any
individual who it initially believes is incapable of working in an
intergrated job setting.
Are Homemaker and Unpaid Family Worker Considered Employment
Outcomes for Purposes of the VR Program?
Yes. The chief purpose of the regulations is to ensure that
individuals with disabilities participating in the VR program are
able to pursue the same type of employment opportunities that are
available to the general public. Extended employment jobs, unlike
homemakers and unpaid family workers, are primarily reserved for
those with disabilities.
Will the Regulations Serve To Close Down Sheltered Workshops?
No. Sheltered workshops are primarily supported by other State,
local, and private resources and rely very little on VR program
funds. Persons who prefer to work in extended employment on a long-
term basis are assured access to local extended employment programs
through the referral requirements in the regulations. Also, those
participants in the VR program who can best prepare for integrated
employment by working in an extended employment setting as part of a
training and assessment program are able to follow that path as
well. Thus, extended employment programs and sheltered workshops
continue to serve essentially the same role that they currently
serve.
Appendix B
Analysis of Comments and Changes
Note: The following appendix will not appear in the Code of
Federal Regulations.
Sec. 361.5(b)(15) Applicable Definitions; Employment Outcome
General
Comments: More than 3,000 comments were received in response to
the NPRM published in the Federal Register on June 26, 2000 (65 FR
39492).
Many commenters voiced strong support for the proposed
definition of ``employment outcome'' that would revise the scope of
that term under the VR program to include only those outcomes in
which an individual with a disability works in an integrated
setting. Several commenters predicted that the proposed revision
would result in more opportunities for individuals with disabilities
to work in integrated settings (also referred to throughout this
appendix as ``integrated employment'') and in the elimination of
barriers to competitive jobs for individuals with significant
disabilities. Other commenters noted that, consistent with the
purpose of the Act, the proposed regulations supported the
transition of adults with significant disabilities from extended
employment settings (also referred to as sheltered or non-integrated
settings) to integrated employment. Finally, several commenters,
while supporting the proposed regulations, asked for additional
clarification on several issues. Those issues, and any corresponding
changes to the proposed regulations, are addressed in this appendix.
Many commenters strongly opposed the proposed regulations and
asked that the NPRM be rescinded or that any final rulemaking be
delayed for further study of the potential impact of the proposed
regulations. A number of commenters believed that the proposed
revision to the definition of ``employment outcome,'' for purposes
of the VR program, was inconsistent with the spirit and intent of
the Act, particularly the Act's emphasis on giving individuals with
disabilities the opportunity to make informed choices in selecting
an employment outcome under the VR program. Other commenters
declared that the proposed regulations would restrict the number and
variety of job options available to individuals with significant
disabilities, lead to individuals being denied access to VR
services, and weaken the priority the Act places on serving
individuals with the most significant disabilities.
We also received many comments from individuals with
disabilities, as well as their friends, family members, and
advocates, who expressed the fear that the proposed regulations
would lead to the elimination of extended (also referred to as
sheltered) employment programs in which individuals with
disabilities often participate.
Discussion: Due to the extensive detail of the previous comments
on the proposed definition of ``employment outcome,'' and the
significance of the issues raised in each, we address these
comments, and other related comments, under applicable topical
headings that follow.
Informed Choice
Comments: As previously indicated, several commenters asserted
that the proposed regulations would limit choices for individuals
who prefer to work in extended employment settings and, therefore,
would be contrary to the Act's emphasis on informed choice of the
individual.
Discussion: While we fully agree that the Act places a premium
on individuals with disabilities being able to exercise informed
choice throughout the rehabilitation process, we do not agree that
these regulations are inconsistent with that emphasis. We interpret
the statute as allowing individuals to exercise their choice among
employment outcomes under the VR program that are specified in the
Act or by the Secretary in regulations.
Moreover, despite the changes made by these regulations, we want
to make it clear that extended employment remains both an initial
step toward achieving integrated employment under the VR program and
a long-term employment option through sources of support other than
the VR program. These regulations continue to allow State VR
agencies to provide individuals with VR services by enabling persons
to work in extended employment settings in order to prepare for
employment in an integrated setting. We recognize that extended
employment settings offer some individuals with significant
disabilities valuable training and work experience for that purpose.
The key change made by these regulations is that extended employment
serves as an interim step in the rehabilitation process rather than
an end point to the VR process.
If an individual makes an informed choice (as will be explained
in more detail later in this appendix), that he or she wants to
pursue long-term employment in a non-integrated setting (e.g.,
extended or sheltered
[[Page 7255]]
employment), he or she may still do so. These final regulations
require the designated State unit to refer that individual to local
extended employment providers who can meet the individual's needs.
Extended employment providers support the vast majority of
sheltered workers through other State, local, and private resources.
Currently, the VR program provides very few financial resources to
extended employment providers. Given this fact, these regulations
will not have the effect, as feared by some, of ending the existence
of extended employment opportunities.
In addition, we have amended the referral requirements in
Sec. 361.37 of the regulations to ensure that individuals receive
sufficient information concerning the scope of the VR program and
integrated employment opportunities. This information will enable
individuals to make a fully informed choice regarding whether to
pursue integrated employment through the VR program or extended
employment through other sources.
The changes made by these regulations ensure that the VR program
promotes opportunities for individuals with disabilities,
particularly those with significant disabilities, to pursue
integrated employment options. Moreover, the regulations require
each State unit to preserve individual choice in the manner in which
the Act intends.
Changes: None.
Employment Options
Comments: Several commenters who supported the proposed
regulations suggested that removing sheltered employment from the
scope of ``employment outcomes'' under the VR program will enable
counselors to assist individuals with disabilities to obtain jobs in
integrated settings and with potentially better pay.
Other commenters who opposed the proposed regulations suggested
that the proposed requirements would restrict the number and variety
of job options for individuals with the most significant
disabilities, many of whom do not have the skills or abilities to
work in integrated employment settings.
Discussion: We believe, as do many of the commenters who wrote
in favor of these regulations, that these regulatory changes will
lead to more individuals with significant disabilities entering
integrated employment. Moreover, we believe that these regulations
will serve to expand job options in general for individuals with
significant disabilities while, at the same time, ensuring that
individuals still can access extended employment through appropriate
resources.
Specifically, these regulations require VR agencies to ensure
(to the extent they have not done so already) that individuals with
significant disabilities are assisted in pursuing work in the
integrated labor market. Prior to these final regulations,
participants in the VR program sometimes have been directed toward
sheltered work at the outset of entering the rehabilitation process
without first having the opportunity to pursue employment in an
integrated setting as they may have preferred.
We recognize that a small number of individuals with the most
significant disabilities may not have, or be able to obtain, the
skills and abilities to work in integrated employment settings. In
those cases in which that decision is reached, it is the
responsibility of the State VR agency to refer the individual to
extended employment providers.
Finally, we again note that extended employment remains an
interim step in the rehabilitation process leading to employment in
an integrated setting. As such, extended employment represents a
means of receiving support services and valuable work experience
rather than a final employment outcome under the VR program.
Changes: In recognizing that some individuals with the most
significant disabilities may not have, or be able to obtain, the
skills and abilities to work in integrated employment settings, we
have added to the final regulations, in Sec. 361.43(d)(2), the
requirement that State agencies also refer to extended employment
providers any individual who the agency determines is incapable of
achieving an employment outcome (i.e., integrated employment) under
the VR program.
Homemakers and Unpaid Family Workers
Comments: Several commenters stated that the Rehabilitation
Services Administration should not eliminate from the VR program
paid jobs in extended employment while continuing to accept
homemakers and unpaid family workers as unpaid employment outcomes.
Other commenters felt that the proposed definition of ``employment
outcome,'' for purposes of the VR program, effectively eliminated
homemakers and unpaid family workers from the scope of employment
outcomes under the VR program.
Discussion: The definition of ``employment outcome,'' for
purposes of the VR program, in these final regulations modifies the
prior regulatory definition by requiring that ``employment
outcomes'' under the VR program occur in integrated settings. The
final regulations do not address wage issues, meaning that non-wage
earning (and other sub-minimum wage) employment outcomes, as long as
they occur in integrated settings, satisfy the VR program definition
of ``employment outcome'' in Sec. 361.5(b)(16). While we strongly
believe that individuals with disabilities receiving VR services
should pursue employment outcomes with competitive wages, the final
regulations do not mandate that result.
The chief purpose of the regulations is to ensure that
individuals with disabilities participating in the VR program are
able to pursue the same type of outcomes that are available to the
general public. Because homemaker and unpaid family worker outcomes
are available in the community, homemakers and unpaid family workers
are considered to occur in integrated settings, as defined in
Sec. 361.5(b)(33), and thus meet the revised definition of
``employment outcome'' under the VR program, as defined in
Sec. 361.5(b)(16).
Changes: None.
Access to VR Services for Persons With Significant Disabilities
Comments: Some commenters predicted that the proposed
regulations would result in fewer individuals with significant
disabilities receiving services under the VR program. These
commenters expressed concern that VR counselors will be reluctant to
serve individuals with significant or the most significant
disabilities if they believe those individuals are less likely to
achieve employment outcomes in integrated settings. The commenters
believed that counselors will focus their efforts only on those who
are clearly capable of integrated work.
Discussion: We recognize the commenters' concerns, yet believe
that those concerns are addressed through the eligibility criteria
and procedures that VR agencies must follow. Those criteria and
corresponding procedures are unchanged by these regulations. We
emphasize that it is critical for VR agencies to ensure that persons
with significant disabilities are not excluded from the VR program
based on an assumption, belief, or preliminary impression that the
individual is incapable of working in an integrated setting.
The Act establishes a clear priority for serving persons with
the most significant disabilities (through the order of selection
requirements) and requires that the eligibility process specified in
the Act be followed in determining whether an individual is to
receive VR services. A discussion of that process and its
application to persons with significant disabilities follows.
In accordance with section 102(a) of the Act and Sec. 361.42 of
the regulations, an individual is eligible to receive VR services if
he or she is ``an individual with a disability'' (i.e., the
individual has an impairment that results in an impediment to
employment and can benefit in terms of an employment outcome from VR
services). The individual also must require VR services in order to
prepare for, secure, retain, or regain employment.
In light of these criteria, a counselor's decision not to serve
(but rather refer to an extended employment provider) an individual
with a disability on the basis that the individual cannot achieve
integrated employment would mean, in effect, that the counselor has
concluded that the individual cannot benefit in terms of an
employment outcome under the VR program (i.e., integrated work) from
VR services. The Act and regulations, however, state that any
individual seeking VR services is ``presumed [able] to benefit in
terms of an employment outcome from VR services.'' Moreover, for the
State agency to overcome that statutory presumption, it must
demonstrate with clear and convincing evidence that the individual
is incapable of benefiting in terms of an employment outcome under
the VR program due to the severity of the applicant's disability.
Finally, in order to establish the requisite ``clear and convincing
evidence,'' the agency first must explore the individual's
abilities, capabilities, and capacity to perform in work situations
by affording the individual trial work experiences (see section
102(a) of the Act and Sec. 361.42 of the regulations).
Thus, in the absence of clear and convincing evidence following
a trial work
[[Page 7256]]
assessment of the individual's abilities (or, as appropriate, an
extended evaluation under Sec. 361.42(f) of the regulations), VR
agencies must consider each individual, including those with the
most significant disabilities, capable of achieving integrated
employment. In other words, the Act establishes the general
expectation that individuals with the most significant disabilities,
if given necessary services and supports, are able to work in
integrated settings. These regulations ensure that every opportunity
is afforded so that this expectation is realized.
In addition, because extended employment remains an interim step
in the rehabilitation process, VR agencies may not refuse to serve
an individual who wishes to receive services in an extended
employment setting for purposes of preparing for employment in an
integrated setting.
We recognize that the regulations impose heightened
accountability and greater effort on the part of VR agencies. For
those reasons, we intend to monitor closely State implementation of
the final regulations during our annual review and periodic on-site
monitoring of State VR agencies in order to ensure that persons with
significant disabilities receive VR services in pursuit of
integrated employment. We also want to ensure that individuals who
receive initial services in an extended employment setting also
receive the VR services they need to transition to integrated
employment in the community.
Changes: None.
Effectiveness of Extended Employment
Comments: A number of commenters, citing relevant research over
the past three decades, stated that many individuals in extended
employment have not been able to transition to the competitive labor
market. These commenters observed that entities that operate
sheltered workshops often retain their most productive workers, thus
resulting in few of these individuals transitioning to integrated
employment. Consequently, the commenters urged that the proposed
regulations be revised to disallow extended employment as an interim
step in the rehabilitation process.
Other commenters who supported the proposed regulations asserted
that nearly 90 percent of individuals with developmental
disabilities and more than 65 percent of individuals who are blind
earn less than the minimum wage working in extended employment.
Several commenters who opposed the revised regulatory definition
of ``employment outcome,'' for purposes of the VR program, stated
that ``place-and-train methodologies'' used by VR programs have left
numerous people with disabilities adrift in the labor market with
part-time, low-wage jobs, no peer group, and limited social outlets.
These commenters further contend that extended employment programs
function as a safety net for individuals with significant
disabilities, providing additional opportunities for training and
employment in a safe, protective work environment. Other commenters
stated that the proposed regulations ``devalued'' individuals in
extended employment programs and the work they perform.
Discussion: We agree that extended employment programs have
traditionally served as a safety net for individuals with
significant disabilities who cannot perform integrated work in the
community or who choose to work only among their disabled peers. We
also recognize that extended employment programs offer opportunities
in which individuals with significant disabilities can obtain useful
training and work experience. For these reasons, we wish to
emphasize that we in no way devalue the dignity or the worth of
extended employment programs or the individuals who work in those
settings. Rather, we have amended the existing regulations in order
to focus the VR program on the statutory purpose (i.e., the purpose
reflected in Title I of the Rehabilitation Act) of giving persons
with disabilities, including those with significant or the most
significant disabilities, the opportunity to work in the community
and to achieve economic self-sufficiency.
While extended employment settings serve a useful purpose in
society and benefit some VR participants, we again note that
extended employment providers receive very little financial support
from the VR program. As we noted in the NPRM, a relatively small
number of VR program participants have achieved employment outcomes
in sheltered settings in recent years--approximately 3.5 percent of
VR program outcomes nationwide in 1998, according to the most
current data available. Thus, it is evident that many State units
already have not been treating extended employment as a final
employment outcome under the VR program. Those agencies have come to
realize, as is reflected through the Act's legislative history, that
historically participants in the VR program too often were placed in
sheltered settings as a final outcome rather than as a temporary
placement from which they could transition to a job in the
community. While this philosophy has evolved in many State VR
agencies, and is followed nationally through these regulations,
extended employment remains a safety net, and an appropriate work
environment, and continues to be supported by those resources on
which it has primarily relied.
We also believe that these regulatory changes will spur VR
agencies to closely follow program participants in extended
employment settings and assist in their transition to integrated
work. Prior to these regulations, VR agencies were permitted to
terminate VR services to an individual in extended employment. We
expect these final regulations will cause VR agencies to increase
their efforts with regard to individuals whom they serve in non-
integrated settings until the individual transitions to integrated
employment.
Changes: None.
Availability of Opportunities for Integrated Employment
Comments: As noted earlier, many individuals who supported the
proposed regulations believed that the change would hasten the
movement toward integrated employment and the elimination of
barriers to integrated jobs for individuals with significant
disabilities.
In contrast, a number of commenters who opposed the proposed
regulations reasoned that extended employment should continue to be
included as an ``employment outcome'' under the VR program because
integrated employment opportunities are rarely available in rural
areas or Indian reservations. These commenters stated that extended
employment is often the sole work opportunity for people with
significant disabilities who reside in these underserved areas.
Discussion: Extended employment, whether accessed through
resources other than the VR program or used as an interim step
toward integrated employment under the VR program, remains a viable
opportunity for individuals in rural areas or elsewhere. As
indicated previously, extended employment facilities offer some
persons with disabilities important services. Accordingly, we expect
that many individuals with disabilities will continue to pursue
extended employment and, therefore, have ensured through these
regulations that opportunities in extended employment can be
accessed. At the same time, however, we do not believe that the
prevalence of extended employment options in certain areas should
mean that VR program participants not be given the opportunity to
pursue integrated employment as is intended by the Act.
We recognize that defining ``employment outcome'' under the VR
program as a job in an integrated setting will require some VR
agencies to work to broaden integrated job options for program
participants. Nevertheless, we fully believe, like many of the
commenters, that the obligations on VR agencies resulting from the
regulations are consistent with the VR program's statutory emphasis
on integration. Thus, to the extent integrated employment
opportunities are limited in rural, reservation, or other areas, it
is incumbent on the local VR unit to work with employers to expand
integrated job opportunities for individuals with significant
disabilities.
Changes: None.
Continuation of Extended Employment Programs
Comments: We received many comments from individuals with
disabilities, and their family members and friends, who expressed
the fear that the changes to the prior regulations would lead to the
elimination of extended employment programs and the closing of
sheltered workshops where individuals with disabilities currently
work.
Discussion: As indicated throughout this analysis of comments,
the regulations do not eliminate extended employment programs or
serve to close sheltered workshops. We again note the valuable
contributions these facilities make to society and the high regard
in which they are held by some of the commenters to the proposed
regulations. Still, extended employment programs generally are
funded by other State, local, and private resources and rely very
little on VR program funds as evidenced by (1) the small percentage
of VR program participants who have exited the program while in a
sheltered setting, and (2) the fact that several
[[Page 7257]]
VR agencies already follow a policy of working with individuals in
pursuit of integrated employment. Moreover, the regulations ensure
that persons who choose to work in extended employment on a long-
term basis are able to access local extended employment programs
through the required referral process under Sec. 361.37 of the
regulations.
At the same time, individuals who choose to prepare for
integrated employment under the VR program by temporarily working in
an extended employment setting are able to follow that path as well.
The State VR agencies will continue to provide necessary services to
enable these individuals to gain valuable work experience in
extended employment facilities and transition to integrated
employment at a later time. If an individual chooses to remain in
extended employment or if it is determined that the individual is
unable to achieve employment in an integrated setting (although
Sec. 361.55 of the regulations requires the agency later to review
whether the individual's choice or readiness for integrated
employment has changed), the VR agency must refer that individual to
the local extended employment provider to ensure that the
individual's needs continue to be met. In this way, extended
employment programs and sheltered workshops continue to serve the
same valued role in the society as they currently serve.
Changes: None.
Sec. 361.37 Establishment and Maintenance of Information and
Referral Programs
Comments: A few commenters viewed as unduly burdensome the
proposed requirements concerning the State unit's obligation to
refer to local extended employment providers any individual who
chooses extended employment as their employment goal.
Some commenters stated that State, local, and private resources
that support extended employment programs are insufficient to absorb
the additional referrals that would result from the proposed
regulations. In contrast, other commenters supported the proposed
regulations, including the referral requirements, stating that
extended employment programs operated by community rehabilitation
programs will continue since those organizations do not rely on VR
program funds to support their extended employment operations.
Discussion: As discussed previously, the proposed regulations in
this section required State VR agencies to refer individuals with
disabilities to local extended employment providers if the
individual chooses to work in an extended employment setting on a
long-term basis rather than pursue employment in an integrated
setting under the VR program.
We do not believe that the limited burden associated with the
referral requirements in this section are inappropriate or
unjustified. While we recognize that the requirements in Sec. 361.37
imposed additional responsibilities on VR agencies, those
requirements are designed to ensure that each individual with a
disability can receive services through applicable resources. As for
those applicants under the VR program who choose to pursue extended
employment long-term, the VR agency should ensure that those
individuals are made aware of the scope of available extended
employment service providers and should make referrals that are
consistent with each individual's informed choice.
Section 361.37 of the final regulations requires State VR
agencies to provide sufficient information to all applicants to
ensure that they are making an informed choice in either applying
for VR services or choosing to pursue extended employment on a long-
term basis. In particular, these regulations require State agencies
to inform individuals of the purpose of the VR program, the
availability of VR services and employment options in an integrated
setting, the availability of services in an extended employment
setting as a means of assisting the individual to transition into
integrated employment, the right to return to the VR program for
assistance if the individual chooses later to seek employment in an
integrated setting, and, when appropriate, the availability of
information from the Social Security Administration concerning the
ability of individuals with disabilities to work while receiving
benefits from the Social Security Administration.
Many of these information requirements are consistent with the
informational requirements in Sec. 361.42. In addition, it is
important that individuals with disabilities who are receiving, or
have been found eligible for, Social Security benefits be informed
of recent reforms that are designed to reduce a key work
disincentive by enabling individuals with disabilities to work and
continue receiving Social Security benefits. We believe that the
need for this critical information, and its potential effect on an
individual's interest in pursuing integrated work in the community,
justifies requiring VR agencies to ensure that an individual with a
disability can access it when appropriate. The purpose behind this
requirement, as with each of the informational requirements in
Sec. 361.37(b), is to ensure that individuals make truly informed
choices among the wide scope of employment options--both integrated
and non-integrated--available to persons with disabilities. We do
note, however, that if the individual proceeds to complete the VR
agency's application, pursuant to Sec. 361.42(a)(4), after receiving
the information specified in this section of the regulations, there
can be no question that the individual intends to pursue integrated
employment under the VR program.
Moreover, an individual with a disability who requires VR
services to achieve an employment outcome cannot be refused services
unless the State unit establishes clear and convincing evidence,
following a trial work assessment, that the severity of the
individual's disability prevents that individual from working in an
integrated setting.
Finally, in the limited instances in which the State unit
establishes the requisite clear and convincing evidence that the
individual is incapable of achieving integrated employment, the
amended regulations also require that those persons be referred to
local extended employment programs in the community that can better
address their employment needs (that added referral requirement is
located in Sec. 361.43 of the final regulations).
Changes: We have amended the proposed regulations to ensure that
VR agencies provide individuals with sufficient information to make
a fully informed choice between pursuing integrated employment under
the VR program or extended employment through other sources. Section
361.37 of these final regulations requires the State unit, prior to
referring an individual with a disability who chooses to pursue
extended employment to local extended employment providers, to
inform the individual of the purpose of the VR program, the
availability of integrated employment options, the fact that VR
services can be provided to eligible individuals in an extended
employment setting for purposes of training or otherwise preparing
for integrated employment, and the ability of the individual to seek
VR services at a later date if at that time the individual chooses
to pursue employment in an integrated setting, and, as appropriate,
to refer the individual to the Social Security Administration in
order to obtain information concerning the ability of individuals
with disabilities to work while receiving benefits from the Social
Security Administration.
Sec. 361.43 Procedures for Ineligibility Determination
Comments: None.
Discussion: Although amendments to this section of the current
regulations were not proposed in the NPRM, we have determined, based
on the comments we received, that a change to this section is
warranted. We believe that it is important to ensure that persons
found too severely disabled to work in an integrated setting are
referred to local extended employment facilities so that these
individuals can still take advantage of the work opportunities that
the facilities offer.
The proposed regulations, in particular Sec. 361.37, would have
applied a referral requirement only to those who initially choose to
pursue extended employment as their long-term employment goal.
However, we also believe that persons who seek to participate in the
VR program but are found, based on clear and convincing evidence
following a trial work assessment, incapable of achieving integrated
employment should be given the same valuable opportunity to work in
an extended employment setting with support from appropriate
sources. As we indicated in the discussion under Sec. 361.37, we
also believe it is important for the VR agency to ensure that these
individuals are made aware of the different extended employment
service providers available in the area so that individuals can be
referred to providers consistent with their informed choice.
Changes: We have amended the proposed regulations to require in
Sec. 361.43 that individuals who are found unable to work in an
integrated setting be referred to local extended employment
providers.
[[Page 7258]]
Sec. 361.45 Development of the Individualized Plan for Employment
and Sec. 361.46 Content of the Individualized Plan for Employment
Comments: None.
Discussion: Both Sec. 361.45 (concerning the development of the
individualized plan for employment (IPE)) and Sec. 361.46
(concerning IPE content) require technical changes to conform to the
revised definition of the term ``employment outcome'' under the VR
program and have been amended accordingly.
Changes: We have revised Secs. 361.45 and 361.46 to conform to
the revised definition of ``employment outcome'' under the VR
program.
Sec. 361.55 Annual Review of Individuals in Extended Employment
and Other Employment Under Special Certificate Provisions of the
Fair Labor Standards Act
Comments: A few commenters who opposed the proposed regulations
stated that the annual review requirements in the NPRM would not be
effective in identifying individuals who may be ready to transition
from extended employment to integrated employment in the community,
including supported employment. The commenters asserted that under
existing regulations State VR agencies have not conducted annual
reviews of persons in extended employment; have been reluctant to
reopen service records of those in extended employment and
investigate alternative work settings; and have not taken into
consideration advances in rehabilitation technology and the
availability of community supports that may facilitate transition to
integrated employment.
On the other hand, at least one State unit stated that annual
reviews of individuals in extended employment have been effective
and that it is unlikely that persons would remain in extended
employment if they sought and were capable of competitive
employment.
Finally, one commenter asked that we clarify this section of the
proposed regulations, in particular the circumstances under which
individuals are to receive annual reviews.
Discussion: We understand that there is uncertainty in the
disability field concerning the extent to which reviews of VR
program participants in extended employment have resulted in
individuals transitioning to jobs in integrated settings. VR
agencies must be vigorous in determining which individuals can, and
wish to, transition to integrated employment (particularly
competitive employment); in providing necessary supports to
facilitate that transition; and in ensuring that annual reviews are
more than cursory exercises (see e.g., Senate Report No. 105-166, p.
13, for more information on that point).
The statutory requirements concerning annual reviews of those in
extended employment are key factors underlying these regulations.
Those requirements, specifically section 101(a)(14) of the Act,
establish an expectation that extended employment is not intended to
serve as a final outcome under the VR program, but rather as an
interim step through which eligible individuals can prepare for
competitive employment. Given the importance of the reviews in
enabling individuals with significant disabilities to transition to
work in an integrated setting when desired by the individual, those
reviews should be thorough evaluations of readiness for integrated
work so that the State unit can effectively determine the interests,
priorities, and needs of the individual with respect to employment
in integrated settings.
To enhance the effectiveness of the annual reviews, Sec. 361.55
of the regulations requires that the review and reevaluation of an
individual's readiness for competitive employment provide for input
from the individual or the individual's representative. We believe
this requirement, which is based on corresponding requirements in
the Act, will help ensure that State units make maximum efforts to
assist individuals in transitioning from extended employment to
integrated employment consistent with their desires.
While we do not believe it is necessary to revise
Sec. 361.55(a), we wish to clarify the instances in which reviews
under this section of the regulations must be conducted.
Specifically, annual reviews (for two years, and thereafter at the
individual's request) are required if a VR program participant has--
(1) achieved an employment outcome in which the individual is
compensated in accordance with section 14(c) of the Fair Labor
Standards Act (i.e., the individual is working in an integrated
setting, but is compensated at less than the minimum wage); (2) had
his or her record of services closed while in extended employment on
the basis that the individual is unable to achieve an employment
outcome; or (3) had his or her record of services closed while in
extended employment because the individual has made an informed
choice to remain in extended employment.
If an individual with a disability, in conjunction with the
State unit, chooses to receive VR services initially in an extended
employment setting in order to prepare for competitive employment,
it is incumbent on the State unit to monitor closely the
individual's progress. However, it is important to note that the
annual review requirements of this section do not apply in that
situation since the individual's program of VR services is ongoing
and the individual's record of services remains open.
Changes: None.
Sec. 361.56 Requirements for Closing the Record of Services of an
Individual Who Has Achieved an Employment Outcome
Comments: None.
Discussion: Section 361.56, which specifies the criteria for
closing the record of services for an individual who has achieved an
employment outcome under the VR program, like Secs. 361.45 and
361.46 discussed previously, has been slightly revised in these
final regulations to reflect the revised definition of the term
``employment outcome'' under the VR program.
Changes: We have amended Sec. 361.56 to conform to the revised
definition of ``employment outcome'' in Sec. 361.5(b)(16).
Effective Date
Comments: A number of commenters suggested that the final
regulations should provide VR agencies with the flexibility to
implement the new regulations before the effective date proposed in
the NPRM (October 1, 2001).
Discussion: As explained in the NPRM, we proposed requiring
States to implement the regulatory changes in FY 2002 to minimize
any potentially adverse impact on VR agencies or eligible
individuals. At the same time, however, we are aware that some
agencies already have established policies under which all VR
program participants pursue integrated employment. We believe those
policies are entirely consistent with the Act and the purpose of
these regulations. Therefore, we are requiring that States implement
these regulatory changes on or before October 1, 2001. After that
date, an ``employment outcome'' under the VR program means
employment in an integrated setting.
Changes: We have amended the regulations to allow VR agencies to
implement the requirements in these regulations prior to FY 2002 at
their discretion. The final regulations require that the
requirements be implemented no later than October 1, 2001.
[FR Doc. 01-1746 Filed 1-19-01; 8:45 am]
BILLING CODE 4000-01-P