[Proposed Rules]
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From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14oc98-34]
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Part IV
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-AB14
The 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 (VR) Services Program. These amendments
are needed to implement changes in the Rehabilitation Act of 1973, as
amended (Act). The proposed regulations would establish evaluation
standards and performance indicators for The State VR Services Program.
DATES: Comments must be received by the Department on or before
November 30, 1998.
ADDRESSES: All comments concerning these proposed regulations should be
addressed to Fredric K. Schroeder, Commissioner, Rehabilitation
Services Administration (RSA), U.S. Department of Education, 600
Independence Avenue, SW., Room 3028, Mary E. Switzer Building,
Washington, DC 20202-2531. Comments transmitted by facsimile should be
sent to (202) 205-9772 or (202) 260-7527. Comments may also be sent
through the Internet to: comments@ed.gov.
You must include the term ``VR Standards'' in the subject line of
your electronic message.
Electronic transmission of comments will facilitate the analysis of
comments. Also, comments should be specific and identified by proposed
regulatory citation. RSA is not required to consider comments received
after the due date for comments noted previously.
Comments that concern information collection requirements must be
sent to the Office of Management and Budget (OMB) at the address listed
in the Paperwork Reduction Act section of this preamble. A copy of
those comments may also be sent to the Department representative named
in this section.
FOR FURTHER INFORMATION CONTACT: Beverlee Stafford, Policy, Planning
and Evaluation Service, Rehabilitation Services Administration, U.S.
Department of Education, 600 Independence Avenue, SW., Room 3014 Mary
E. Switzer Building, Washington, DC 20202-2550. Telephone: (202) 205-
8831. Individuals who use a telecommunications device for the deaf
(TDD) may call the Federal Information Relay Service (FIRS) at 1-800-
877-8339 (in the Washington, DC area, telephone (202) 708-9300) between
8 a.m. and 8 p.m., Eastern time, Monday through Friday.
Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed in the preceding
paragraph.
For fiscal year (FY) 1996 performance data reports on individual
DSUs, please contact Harold Kay, Policy, Planning and Evaluation
Service, Rehabilitation Services Administration, Room 3014 Mary E.
Switzer Building, 600 Independence Avenue, SW., Washington, DC 20202-
2550. Telephone: (202) 205-9883. Internet: Harold__Kay@ed.gov.
SUPPLEMENTARY INFORMATION:
Invitation to Comment:
Interested persons are invited to submit comments and
recommendations regarding these proposed regulations. To ensure that
public comments have maximum effect in developing the final
regulations, the Department urges commenters to identify clearly the
specific section or sections of the proposed regulations that each
comment addresses and to arrange comments in the same order as the
proposed regulations.
All comments submitted in response to these proposed regulations
will be available for public inspection, during and after the comment
period, in Room 3214, 330 C Street, SW., Washington, DC, between the
hours of 8:30 a.m. and 4:00 p.m., Eastern time, Monday through Friday
of each week except Federal holidays.
On request the Department supplies 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 docket for these proposed regulations. An individual with a
disability who wants to schedule an appointment for this type of aid
may call (202) 205-8113 or (202) 260-9895. An individual who uses a TDD
may call the Federal Information Relay Service at 1-800-877-8339,
between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.
To assist the department in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden, the Secretary invites comments on whether
there may be further opportunities to reduce any regulatory burdens
found in these proposed regulations.
General
These proposed regulations would amend the regulations in Part 361
of the Code of Federal Regulations governing The State Vocational
Rehabilitation Services Program (VR program) by adding a Subpart E to
implement certain requirements of the Rehabilitation Act Amendments of
1992 (1992 Amendments), Pub. L. 102-569, and the Rehabilitation Act
Amendments of 1998 (1998 Amendments), as specified in Title IV of the
Workforce Investment Act of 1998 (Workforce Act), Pub. L. 105-220,
August 7, 1998. The 1992 Amendments added section 106 to Part A of
Title I of the Rehabilitation Act of 1973, as amended, which authorizes
the VR program. Title IV of the Workforce Act, which contains the 1998
Amendments, modifies section 106 of the Act to require that, to the
maximum extent practicable, the VR standards and indicators be
consistent with the core indicators of performance (Core Indicators)
established under section 136(b) of the Workforce Act. Section 106 also
requires, among other things, the following: (1) The Secretary
establishes and publishes in the Federal Register evaluation standards
and performance indicators for the VR program. (2) The evaluation
standards and performance indicators must include outcome and related
measures of program performance that facilitate and in no way impede
the accomplishment of the purpose and policy of the program. (3) The
evaluation standards and performance indicators must be developed with
input from designated State units (DSUs) for VR, related professional
and consumer organizations, recipients of VR services, and other
interested parties. (4) Each DSU shall report to the Secretary after
the end of each fiscal year the extent to which it is in compliance
with the evaluation standards and performance indicators. (5) The
Secretary provides technical assistance to any DSU that performs below
the established evaluation standards and develops jointly with a DSU a
program improvement plan outlining specific actions to be taken by a
DSU to improve program performance. (6) If a DSU that performs below
the established evaluation standards fails to enter into a program
improvement plan, or is not complying substantially with the terms and
conditions of such a program improvement plan, the Secretary reduces or
makes no further payments to the DSU until the DSU has entered into an
approved program improvement plan or is complying substantially with
the terms and conditions of such a
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program improvement plan. (7) RSA provides a report to Congress
containing an analysis of program performance, including relative State
performance, based on the evaluation standards and performance
indicators.
These proposed regulations would implement those requirements in
section 106.
Executive Order 12866 encourages Federal agencies to facilitate
meaningful participation in the regulatory development process.
Accordingly, the U.S. Department of Education (Department) has widely
consulted with the rehabilitation community during the development of
the current proposed evaluation standards and performance indicators.
On February 19, 1993, the Department published a notice of intent to
regulate in the Federal Register (58 FR 9458) to solicit comment on the
development of the proposed evaluation standards and performance
indicators. The Department also held a public meeting on September 23,
1993, to discuss several issues relating to the development of proposed
evaluation standards and performance indicators. Since that time, the
Commissioner of RSA has discussed the development of the proposed
indicators on many occasions with various members of the rehabilitation
community. These proposed regulations contain proposed evaluation
standards and performance indicators that reflect the input received
through these efforts.
The proposed regulations contain two evaluation standards, each of
which has at least two or more implementing performance indicators by
which to measure DSU performance. The proposed regulations also contain
specific performance levels for each indicator that identify the
minimum level of performance that a DSU would need to achieve in order
to pass a given indicator. Under these proposed regulations, a DSU
would have to pass a minimum of five of the seven performance
indicators, including at least two of the three primary indicators, for
Evaluation Standard 1, and both performance indicators for Evaluation
Standard 2.
The Secretary plans to propose other evaluation standards in
addition to the two standards included in these proposed regulations,
once appropriate data-gathering instruments and methods for measuring
compliance with the additional standards have been developed and
tested. The Secretary is considering three additional standards and
implementing performance indicators. These ``draft proposed standards
and indicators'' are identified and discussed in a separate section of
this preamble. The Secretary solicits public comment on issues
regarding the validity and feasibility of implementing these draft
proposed evaluation standards and performance indicators. The Secretary
also requests comments on identifying available data-gathering
instruments and methods for measuring compliance with the draft
proposed performance indicators. Based on the public comments received
and on the results of the data gathering, the Secretary intends to
revise these draft proposed standards and indicators and publish them
for comment in a future notice of proposed rulemaking (NPRM).
Proposed Evaluation Standards 1 and 2
Background
The following is a brief overview of the evaluation standards and
performance indicators included in these proposed regulations
(Evaluation Standards 1 and 2; Performance Indicators 1.1 through 1.7
and 2.1 through 2.2), including a discussion of the role of the
standards and indicators in the oversight of the VR program.
Accountability for the VR program is established primarily through
the Government Performance and Results Act (GPRA), the Title I
evaluation standards and performance indicators, DSU State Plans, and
program monitoring. GPRA requires that U.S. Government programs provide
annual plans that include program outcome indicators. RSA has proposed
national aggregate outcome indicators to meet GPRA requirements, and
the Title I evaluation standards and performance indicators are closely
related to the GPRA indicators. The Title I evaluation standards and
performance indicators measure performance at the DSU level, while the
GPRA indicators measure the aggregate performance of all DSUs.
Each DSU submits a State Plan containing assurances and specific
information demonstrating compliance with the requirements of section
101 of the Act. The 1998 Amendments revised section 101(a)(15) of the
Act to require DSUs to use the results of a comprehensive statewide
assessment of rehabilitation needs and the Title I evaluation standards
and performance indicators as bases for developing DSU goals and
priorities. In addition, under section 107(a)(1) of the Act, RSA
conducts monitoring to ``determine whether, in the administration of
the State Plan, a State is complying substantially with the provisions
of such plan and with evaluation standards and performance indicators
established under section 106 [of the Act].'' Thus, the Title I
evaluation standards and performance indicators are considered a
crucial part of a comprehensive, integrated system of accountability
for the VR program.
Proposed Evaluation Standard 1, which measures employment outcomes,
includes seven performance indicators. Because the Secretary considers
three of these performance indicators particularly representative of
the central purposes of the VR program, these three performance
indicators would be identified as ``primary'' indicators.
Primary indicators address the areas the Secretary considers most
significant in evaluating a DSU's success in assisting individuals with
disabilities, including individuals with significant disabilities, to
achieve high-quality employment outcomes. The first of these primary
indicators would measure the percentage of all individuals determined
to have achieved an employment outcome who exit the VR program into
competitive, self-, or ``Business Enterprise Program'' (BEP) employment
with earnings equivalent to at least the minimum wage (Performance
Indicator 1.3). The second primary indicator would measure individuals
with significant disabilities as a percentage of all individuals who
exit the VR program into competitive, self-, or BEP employment with
earnings equivalent to at least the minimum wage (Performance Indicator
1.4). The third primary indicator would measure the average hourly
earnings of all individuals who exit the VR program in competitive,
self-, or BEP employment with earnings levels equivalent to at least
the minimum wage as a ratio to the State's average hourly earnings for
all individuals in the State who are employed (as derived from the
Bureau of Labor Statistics report ``State Average Annual Pay'' for the
most recent available year) (Performance Indicator 1.5). The four
remaining performance indicators under Evaluation Standard 1 would
measure the number of employment outcomes (Performance Indicator 1.1),
the percentage of cases with employment outcomes (Performance Indicator
1.2), self-sufficiency resulting from employment (Performance Indicator
1.6), and employment outcomes with medical insurance plans that cover
hospitalization (Performance Indicator 1.7). A DSU would have to pass
two of the three primary indicators and a total of at least five of the
seven performance indicators to meet the performance requirements for
Evaluation Standard 1.
These proposed performance indicators are designed to ensure that
DSUs assist adequate numbers and proportions of individuals with
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disabilities to obtain employment outcomes, gain access to medical
insurance plans that cover hospitalization, and become self-sufficient.
The proposed performance indicators also emphasize high quality
competitive employment outcomes with adequate earnings, particularly
for individuals with significant disabilities.
The Secretary recognizes that high performance on some of these
proposed performance indicators could result in lower performance on
others. The performance indicators have been designed to support those
results in appropriate instances. For example, if a DSU decides to
focus more of its resources on assisting persons with significant
disabilities to achieve high-quality competitive employment outcomes
(which would enhance performance on Performance Indicator 1.4), fewer
persons with less significant disabilities would be served and the
total number of persons achieving employment outcomes (Performance
Indicator 1.1) would likely decline. The proposed regulations,
therefore, designate Performance Indicator 1.4 (and not Performance
Indicator 1.1) as primary in recognition of the difficulty in
satisfying both. Designating Performance Indicator 1.4 as primary is
also appropriate since it reflects two central purposes of the VR
program: addressing the needs of individuals with significant
disabilities and facilitating competitive employment outcomes.
A DSU would have to pass both of the performance indicators for
proposed Evaluation Standard 2, which measures equality of access to
rehabilitation services. The first performance indicator for proposed
Evaluation Standard 2 would compare service rates for minorities and
non-minorities. The second indicator for proposed Evaluation Standard 2
would compare the percentage of minorities with significant
disabilities who exit the VR program after receiving services under an
Individualized Plan for Employment (IPE) as a ratio to the percentage
of minorities in the State who have reported that a disability prevents
them from working.
As required by section 106(a)(1)(C) of the Act, the standards and
indicators developed under the VR program must be consistent, to the
maximum extent practicable, with the four Core Indicators established
under section 136(b) of the Workforce Act. Accordingly, the proposed
performance indicators under proposed Evaluation Standard 1 (Employment
Outcomes) reflect the first Core Indicator (Core Indicator I--entry
into unsubsidized employment) established under section
136(b)(2)(A)(i)(I) of the Workforce Act. In particular, performance
indicators 1.3 (percentage of individuals obtaining competitive
employment) and 1.4 (percentage of individuals with significant
disabilities obtaining competitive employment) are consistent with Core
Indicator I since performance indicators 1.3 and 1.4 represent the
proportions of individuals and individuals with significant
disabilities who obtain competitive employment. ``Competitive
employment'' is considered equivalent to ``unsubsidized employment,''
the term used in the Workforce Act to refer to instances in which an
individual is self-employed or is paid directly by the individual's
employer rather than through a separate source or entity that is
subsidizing the employment. On the other hand, performance indicators
1.1 and 1.2 measure the extent to which individuals achieve
``employment outcomes'' generally, which would include both competitive
employment outcomes and other outcomes that are not considered
unsubsidized employment (e.g., unpaid homemaker or unpaid family
worker). Thus, although performance indicators 1.1 and 1.2 are
necessary to address the full scope of employment outcomes achieved by
participants in the VR program, those indicators are not entirely
consistent with Core Indicator I of the Workforce Act. Finally,
performance indicators 1.5, 1.6, and 1.7 refer to other key factors
associated with a successful VR program--earnings, employment as the
main source of support, and employment benefits, respectively--and,
therefore, are not necessarily aligned with Core Indicator I.
The core indicators in the Workforce Act do not address equal
access to services (Evaluation Standard 2 in the proposed regulations),
consumer satisfaction (draft proposed Evaluation Standard 3 in this
preamble), or the adequate use of resources (draft proposed Evaluation
Standard 5 in this preamble). Thus, although the Secretary believes
these measures are (or in the case of the draft proposed standards,
could be) important factors to a successful VR program, the performance
indicators for each of these standards are not based on the Workforce
Act. Draft proposed Evaluation Standard 3 and its attendant performance
indicators, however, are related to the customer satisfaction indicator
in section 136(b)(2)(B) of the Workforce Act since both measure the
satisfaction of service recipients under applicable programs.
The draft proposed performance indicators under draft proposed
Evaluation Standard 4 (retention of employment and earnings), which are
described in a separate section of this preamble, are consistent with
Core Indicators II and III under section 136(b)(2)(A)(i)(II) and (III)
of the Workforce Act. Core Indicators II and III measure retention of
unsubsidized employment and earnings over a 6-month period, whereas the
draft proposed performance indicators would measure retention of
competitive employment outcomes (the equivalent of unsubsidized
employment), including earnings, over both a 6-and 12-month period in
order to address the difficulties experienced by individuals with
disabilities in retaining employment over time. The 12-month review
under the draft proposed indicator is also based on section
136(d)(2)(D) of the Workforce Act, which requires States to report on
participants' retention of employment and earnings received in
unsubsidized employment 12 months after entry into employment.
None of the proposed evaluation standards or performance indicators
reflect Core Indicator IV under section 136(b)(2)(A)(4) of the
Workforce Act (attainment of a recognized credential relating to
achievement of educational or occupational skills) since attaining a
recognized credential for achieving a skill has not been a stated goal
of the VR program. Performance under the VR program is currently based
solely on the extent to which individuals achieve and maintain
employment. However, for some individuals, attainment of appropriate
credentials is a necessary step in achieving their employment goals.
Therefore, the Secretary invites comment on the appropriateness of
including Core Indicator IV as a key measure of success in meeting the
goals of the VR program. If commenters believe that such an indicator
would be appropriate, suggestions on how such an indicator might be
implemented are invited.
The proposed evaluation standards and performance indicators would
be implemented beginning in FY 1999, and DSU data would be due at the
end of FY 1999. The data that are necessary to measure compliance with
the proposed indicators are currently being collected under existing
reporting requirements. Specifically, information contained in the Case
Service Report (RSA-911 report), which DSUs submit annually to RSA,
will be used to demonstrate performance under proposed Evaluation
Standard 1 (Employment outcomes) and
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proposed Evaluation Standard 2 (Equal access to services).
Proposed Subpart E also would require that each DSU report selected
data to the Secretary after the end of each fiscal year so that the
Secretary could determine whether the DSU is in compliance with the
proposed evaluation standards and performance indicators. If the
performance of any DSU falls below required levels, the Secretary would
provide technical assistance to the DSU, and the DSU and the Secretary
would jointly develop a program improvement plan outlining the specific
actions to be taken by the DSU to improve program performance.
The Secretary would review a DSU's compliance with its program
improvement plan on a biannual basis, and, if necessary, the Secretary
would request that a DSU make further revisions to the plan to improve
performance. If the Secretary establishes new performance levels while
a program improvement plan is in effect, the Secretary and the DSU
would jointly modify the program improvement plan to meet the new
performance levels. Reviews would continue and requests for revisions
would be made until the DSU achieved satisfactory performance based on
current performance levels over a period of more than one year.
If the Secretary determines that a DSU with less than satisfactory
performance has failed to enter into a program improvement plan or
comply substantially with the terms and conditions of such a program
improvement plan, the Secretary reduces or makes no further payments to
the DSU under this program until the DSU has met one of these two
requirements or raised its subsequent performance to meet the current
overall minimum satisfactory level on the compliance indicators.
Section-by-Section Analysis
Section 361.80--Purpose
Proposed Sec. 361.80 states that the purpose of this new subpart is
to establish evaluation standards and performance indicators for The
State VR Services Program.
Section 361.81--Applicable Definitions
Proposed Sec. 361.81 contains definitions of terms that apply to
the evaluation standards and performance indicators in this new
subpart. In addition to the definitions identified in this proposed
section, the definitions in Sec. 361.5, including the definitions of
``competitive employment'' and ``employment outcome,''
Sec. 361.5(b)(10) and (15), respectively, apply to the proposed
evaluation standards and performance indicators.
The proposed term ``average hourly earnings,'' which is used in
proposed Performance Indicator 1.5, Sec. 361.84(c)(1)(v), under
Evaluation Standard 1, would be determined by dividing the ``weekly
earnings at closure'' data element by the ``hours worked at closure''
data element from the RSA-911 report. An eligible individual's average
hourly earnings would be calculated for the week prior to the
individual's exiting the VR program after achieving a competitive
employment outcome.
The term ``Business Enterprise Program (BEP)'' would be defined as
an employment outcome in which an individual with a significant
disability operates a vending facility or other small business under
the management and supervision of a DSU. This definition would apply
only to the individual operating the enterprise under the management
and supervision of the DSU and would not apply to wage-earners or other
employees who work for the business. This term is used in proposed
Performance Indicators 1.3, 1.4, 1.5, and 1.6, Sec. 361.84(c)(1)(iii),
(iv), (v), and (vi), respectively, under proposed Evaluation Standard 1
(Employment outcomes), Sec. 361.82(c)(1).
The proposed definition of ``exit the VR program'' is based on the
service record closure categories in the RSA-911 report and would apply
whenever an individual's record of services is closed because the
individual was determined ineligible for VR services; achieved an
employment outcome; received services under an IPE but did not achieve
an employment outcome; or was determined eligible but did not receive
services under an IPE. This term is used in all performance indicators
under proposed Evaluation Standard 1 and in Performance Indicator 2.2,
Sec. 361.84(c)(2)(ii), under proposed Evaluation Standard 2 (Equal
access to services), Sec. 361.82(c)(2).
The proposed definition of ``full-time employment'' is an
employment outcome in which an eligible individual worked for a minimum
of 35 hours in the week before closure. This term is used in proposed
Performance Indicator 1.7, Sec. 361.84(c)(1)(vii), under Evaluation
Standard 1.
The proposed definition of ``general or combined DSU'' is a DSU
that does not exclusively serve individuals with visual impairments or
blindness. This term is used in proposed Sec. 361.86(b)(1) and (2).
The proposed definition of ``individuals from a minority
background'' is derived from RSA-911 reporting categories and is
consistent with governmentwide classifications of race and ethnicity.
This term is used in both performance indicators, Sec. 361.84(c)(2)(i)
and (ii), under proposed Evaluation Standard 2, Sec. 361.82(c)(2).
The proposed definition of ``minimum wage'' is the Federal or State
minimum wage, whichever is higher. Pursuant to Sec. 361.5(b)(10),
``competitive employment'' is employment in an integrated setting, at
or above the minimum wage, but not less than the customary wage and
level of benefits paid by the employer for the same or similar work
performed by non-disabled individuals. If a State minimum wage is
higher than the Federal, then employment in that State would not be
considered competitive if the individual's wage did not equal or exceed
the State minimum wage. This term is used in proposed Performance
Indicators 1.3, 1.4, 1.5, and 1.6, Sec. 361.84(c)(1)(iii), (iv), (v),
and (vi), respectively.
The proposed definition of ``non-minority individuals'' means those
individuals who report their race as White. This term is used in
proposed Performance Indicator 2.1, Sec. 361.84(c)(2)(i).
The proposed definition of ``performance period'' is the period of
time for which a DSU's performance is measured. For general and
combined DSUs, that period would be one year and performance data would
be aggregated over a one-year period commencing in FY 1999. However,
the number of individuals in any single year who exit a program
administered by a DSU that serves only individuals with visual
impairments or blindness is generally too small to serve as a reliable
and valid measure of performance. Thus, for DSUs that serve only
individuals with visual impairments or blindness, the performance
period would be two years. These DSUs would be required to report two
consecutive years of performance data; the first report would include
FY 1998 and FY 1999 data. At the end of FY 2000, the general and
combined DSUs would report FY 2000 data, and the DSUs that serve only
individuals with visual impairments or blindness would report
aggregated FY 1999 and FY 2000 data.
The proposed definition of ``primary indicator'' is used to
identify those performance indicators that place particular emphasis on
the extent to which State VR programs assist individuals, particularly
individuals with significant disabilities, to achieve competitive,
self-, or BEP employment with earnings equivalent to the minimum wage
or higher; and the
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average hourly earnings of individuals who exit the VR program in
competitive, self-, or BEP employment with earnings equivalent to the
minimum wage or higher relate to the State's average hourly earnings
for all employed individuals. As discussed previously, the significance
accorded these indicators is based on the emphasis the Act places on
competitive employment and on serving individuals with significant
disabilities.
In addition, emphasizing achievement of competitive, self-, and BEP
employment at earnings that are comparable to those achieved by
individuals without disabilities is intended as a means of addressing
the high unemployment and poverty levels experienced by individuals
with disabilities. The Secretary believes achieving these goals would
foster increased economic independence and integration into the
workforce for individuals receiving services under the VR program. The
three proposed ``primary'' indicators are designed to provide an
accurate measure of how well a State's VR program addresses these
goals. The term ``primary indicator'' is used in proposed 361.86(b)(1).
The proposed definition of ``RSA-911'' is the Case Service Report
that DSUs provide to RSA on each individual exiting the VR program. The
Case Service Report includes data on employment outcomes, demographic
characteristics, and services received by individuals eligible for VR
services. This term is used in proposed Sec. 361.88, ``Reporting
requirements.''
The proposed definition of ``self-employment'' is consistent with
the ``self-employment'' reporting element on the RSA-911 report and is
used in proposed Performance Indicators 1.3, 1.4, 1.5, and 1.6.
The proposed definition of ``service rate'' is the number of
eligible individuals who exit a VR program after receiving one or more
services under an IPE as a percentage of all individuals exiting the
program. This term is used in proposed Performance Indicator 2.1.
The proposed term ``State's Average Hourly Earnings'' means the
average hourly earnings of all persons in the State in which the DSU is
located. Average hourly earnings would be derived by dividing the
State's average annual pay, as reported in the Bureau of Labor
Statistics report, ``State Average Annual Pay,'' by 2,000--the average
number of working hours in a year. This term is used in proposed
Performance Indicator 1.5, Sec. 361.84(c)(1)(v), under Evaluation
Standard 1.
Section 361.82--Evaluation Standards
Proposed Sec. 361.82 contains the evaluation standards for the VR
program. These proposed evaluation standards are based upon the
requirement in section 106 of the Act that the evaluation standards and
performance indicators facilitate the accomplishment of the policy and
purpose of the VR program. Proposed Sec. 361.82(b) would require that a
DSU achieve successful performance on both Evaluation Standards 1 and
2.
* Proposed Evaluation Standard 1 (Employment outcomes)
Proposed Evaluation Standard 1, Sec. 361.82(c)(1), would require a DSU
to assist eligible individuals with disabilities, including individuals
with significant disabilities, to obtain, maintain, or regain high
quality employment outcomes. The quality of an employment outcome is
based on whether the outcome is consistent with the individual's
vocational choices; is in competitive, self-, or BEP employment;
maintains or increases the individual's earnings; and provides medical
insurance plans covering hospitalization.
In adopting the 1992 Amendments to the Act, Congress emphasized the
need for individuals with disabilities, including individuals with
significant disabilities, to become gainfully employed through work
that they are both capable of, and interested in, performing. Hence,
the Act specifies, in a number of instances, that individuals receiving
support under the Act should be able to pursue employment that is
consistent with their unique abilities (e.g., sections 100(a)(1)(F) and
102(b)(3)(A)) and their informed choice (e.g., sections 100(a)(3)(C),
101(a)(19), and 102(d)). The Act also places particular emphasis on
competitive employment (e.g., in the definition of ``employment
outcome'' in section 7(11) and in the annual review of extended
employment placements required by section 101(a)(14)). The Secretary
believes that these provisions indicate that the success of the VR
program is based in large part on the ability of eligible individuals
with disabilities to become self-sufficient by working in the
competitive labor market. Thus, proposed Evaluation Standard 1 would
assess a DSU's success in assisting individuals with disabilities,
including individuals with significant disabilities, to achieve
employment outcomes with an emphasis on competitive employment outcomes
(which includes self-employment and BEP outcomes) in integrated
settings.
* Proposed Evaluation Standard 2 (Equal access to services).
Proposed Evaluation Standard 2, Sec. 361.82(c)(2), would require a DSU
to ensure that individuals from minority backgrounds have equal access
to VR services. This standard was developed in recognition of
congressional findings of past inequities between the treatment
received by minorities and non-minorities under the VR program. In
addition, the Secretary believes that measuring DSU performance in
serving minority populations is consistent with the obligation of a DSU
to demonstrate, pursuant to section 21 of the Act, how it will address
the needs of individuals with disabilities from minority backgrounds.
Section 361.84--Performance Indicators
Proposed Sec. 361.84 lists the performance indicators that measure
minimum compliance with the evaluation standards. There are nine
performance indicators, three of which (proposed performance indicators
1.3, 1.4, and 1.5) are primary indicators.
Employment Outcomes
* Proposed Performance Indicator 1.1. Proposed Performance
Indicator 1.1, Sec. 361.84(c)(1)(i), would compare the total numbers of
individuals obtaining an employment outcome during the current and
previous performance periods.
* Proposed Performance Indicator 1.2. Proposed Performance
Indicator 1.2, Sec. 361.84(c)(1)(ii), would measure the number of
persons obtaining an employment outcome as a percentage of all persons
exiting the program after receiving VR services. This percentage would
indicate the proportion of eligible individuals who obtain an
employment outcome.
* Proposed Performance Indicator 1.3. Proposed Performance
Indicator 1.3, Sec. 361.84(c)(1)(iii), would measure the number of
persons obtaining a competitive, self-, or BEP employment outcome as a
percentage of all persons obtaining any type of employment outcome.
This indicator would demonstrate a DSU's success in assisting
individuals to obtain competitive, self-, and BEP outcomes. These types
of outcomes generally provide individuals with disabilities far greater
earnings, economic independence, and social integration into the
community than do other available outcomes, such as extended
employment, homemaker, or unpaid family worker. As discussed
previously, the Secretary recognizes that achieving a high performance
on this indicator may lower a DSU's performance on other indicators
(e.g., Performance Indicators 1.1 or 1.2). For that reason,
[[Page 55297]]
and because this indicator reflects the Act's emphasis on competitive
employment, this indicator would be designated as a primary indicator.
* Proposed Performance Indicator 1.4. Proposed Performance
Indicator 1.4, Sec. 361.84(c)(1)(iv), would measure the percentage of
competitively employed individuals who have significant disabilities.
Given the challenges associated with competitive work, it is generally
more difficult and expensive for DSUs to assist individuals with
significant disabilities, as opposed to individuals with non-
significant disabilities, to obtain competitive,
self, or BEP employment. Therefore, Performance Indicator 1.4 also
would be designated as a primary indicator to account for DSUs that
make trade-offs in other activities to enhance their performance on
this indicator.
* Proposed Performance Indicator 1.5. Proposed Performance
Indicator 1.5, Sec. 361.84(c)(1)(v), would measure the average hourly
earnings of all individuals who exit the VR program in competitive,
self-, or BEP employment with earnings levels equivalent to at least
the minimum wage as a ratio to the State's average hourly earnings for
all individuals in the State who are employed. This performance
indicator, also a primary indicator, would reflect the additional time,
money, and effort required to assist individuals with disabilities to
obtain earnings that are comparable to the earnings of non-disabled
persons in the State.
* Proposed Performance Indicator 1.6. Proposed Performance
Indicator 1.6, Sec. 361.84(c)(1)(vi), would measure the difference
between the percentage of individuals who exit the VR program in
competitive, self-, or BEP employment with earnings equivalent to at
least the minimum wage who report their own income as their largest
single source of economic support and the percentage of individuals in
that employment who reported their own income as their largest single
source of support at the time they applied for VR services. This
indicator would apply to all persons who obtain competitive, self-, or
BEP employment at or above the minimum wage and would measure gains in
self-sufficiency. As an example in applying this indicator, if 10
percent of competitively employed individuals relied on their own
income at the time of application for VR services and 70 percent relied
on their own income at the time of closure, the difference between the
percentages would be 60 percent. This indicator would demonstrate a
DSU's success in assisting individuals with disabilities to become more
economically independent as a result of their employment.
* Proposed Performance Indicator 1.7. Proposed Performance
Indicator 1.7, Sec. 361.84(c)(1)(vii), would measure the extent to
which DSUs assist individuals with disabilities to obtain full-time
competitive employment with medical insurance plans that cover
hospitalization. Many U.S. employers offer their workers a wide variety
of medical insurance plans. However, because these plans vary greatly
among employers, measuring them in a consistent, non-burdensome manner
is very difficult. Persons who obtain self-or BEP employment or who
work less than 35 hours per week would not be included in this
performance indicator because individuals who work for themselves,
operate a business under the management and supervision of a DSU, or
work part-time are less likely to secure employer-paid medical
insurance plans.
The Secretary invites comment on whether this indicator is a fair
measure of a DSU's performance in assisting individuals to obtain
successful employment outcomes.
* Data for Performance Indicators 1.1 through 1.7. The
employment outcomes covered under Performance Indicator 1.1 and in
Performance Indicators 1.3 through 1.6 are reported under ``employment
status at closure'' in the RSA-911 report. The employment outcomes
covered under Performance Indicator 1.2 are reported under ``type of
closure'' in the RSA 911. However, competitive, self-, and BEP
employment outcomes, as used in Performance Indicators 1.3 through 1.6,
apply only to individuals earning at least the minimum wage. An
individual's earnings would be determined first by dividing the
``weekly earnings at closure'' RSA-911 data element by the ``hours
worked at closure'' RSA-911 data element and then by comparing the
resultant hourly earnings with the relevant Federal or State minimum
wage.
``Own income as the major source of support'' is currently reported
in the RSA-911 report as ``personal income,'' which is an element under
``Primary source of support at application and primary source of
support at closure.''
The availability of medical insurance that covers hospitalization
also is currently reported in the RSA-911 report. Consistent with the
RSA-911 reporting instructions, a DSU would not be required to
determine--(a) whether the individual has enrolled or will enroll in
such a plan; (b) whether the individual has to pay for all, some, or
none of the plan premiums; or (c) how adequate the plan is for the
individual's needs. A DSU need only report that such an employment-
based plan exists and that the individual exiting the VR program has
the option of enrolling in a medical insurance plan that covers
hospitalization through his or her employer.
Equal Access to Services
* Proposed Performance Indicator 2.1. Proposed Performance
Indicator 2.1, Sec. 361.84(c)(2)(i), would measure whether individuals
from minority backgrounds have been provided services at the same rate
as non-minority individuals. However, if a DSU did not meet the
performance level for Performance Indicator 2.1, it would satisfy this
indicator by demonstrating that it had made adequate efforts to ensure
that individuals from minority backgrounds have equal access to VR
services. A DSU that did not meet the performance level for Performance
Indicator 2.1 would have to demonstrate that its procedures, policies,
and practices, particularly with regard to eligibility determinations
and service provision, were not discriminatory. This indicator does not
require DSUs to establish numerical quotas for serving individuals from
minority backgrounds.
The Secretary solicits comment on this indicator and seeks examples
of criteria or methods that might be used to determine whether a DSU's
policies, practices, or procedures discriminate against minorities.
* Proposed Performance Indicator 2.2. Proposed Performance
Indicator 2.2, Sec. 361.84(c)(2)(ii), would compare minorities as a
percentage of individuals with significant disabilities exiting the VR
program after receiving VR services under an IPE to minorities as a
percentage of individuals in the State's working age population
(individuals age 16 to 64) reporting a disability that prevents them
from working. This indicator would demonstrate a DSU's success in
providing VR services under an IPE to individuals from minority
backgrounds in proportion to the population of minorities with
significant disabilities in the State. However, if a DSU does not meet
the performance level of Performance Indicator 2.2, it would meet this
indicator by demonstrating that it has undertaken outreach and
recruitment activities to ensure that individuals from minority
backgrounds have equal access to VR services. This indicator does not
require DSUs to establish numerical quotas for serving individuals from
minority backgrounds.
* Data for Performance Indicators 2.1 and 2.2. The
information that is
[[Page 55298]]
necessary for reporting on proposed Evaluation Standard 2 would be
obtained from the race and ethnicity data element of the RSA-911
report. The RSA-911 reporting categories for race and ethnicity used
for Evaluation Standard 2 are compatible with U.S. Census data
categories and have been approved by OMB. In addition, U.S. Census data
on the number of minority working age persons in a State who report
that their disability prevents them from working make it possible to
identify an in-State comparison group to indicate whether minorities
with disabilities are underserved in the VR program relative to their
percentage in a State's general population.
However, the Secretary notes that the U.S. Bureau of the Census may
eliminate from the 2000 Census Survey the current census question
related to individuals possessing a disability that prevents them from
working. Therefore, the Secretary invites comments identifying
alternative measures that could be used to determine compliance with
Performance Indicator 2.2. The Secretary also seeks suggested examples
of criteria or methods that could be used to evaluate a DSU's outreach
and recruitment activities related to individuals from minority
backgrounds.
Section 361.86--Establishment of Performance Levels
Proposed Sec. 361.86 would establish compliance levels for the
performance indicators. Many commenters urged the Secretary to
establish different performance levels for DSUs that serve only
individuals who are visually impaired or who are blind. Because these
DSUs serve a particular population of individuals with significant
disabilities, their level of performance typically differs markedly
from that of general or combined DSUs. Past performance data from these
agencies support this conclusion. The Secretary, therefore, agrees that
separate performance levels for DSUs that serve only individuals who
are visually impaired or blind, as proposed in Sec. 361.86(b)(1), are
generally warranted. With regard to Performance Indicator 1.1 (under
which a DSU has only to equal or exceed previous performance) and
Performance Indicators 2.1 and 2.2 (under which a DSU has to provide
equal access to minority and non-minority individuals), however, both
general and combined DSUs and DSUs that serve only individuals who are
visually impaired or blind would be required to meet the same
performance levels.
Combined DSUs (i.e., those that serve individuals with blindness,
visual impairments, and other non-visual disabilities) suggested that
separate performance levels should apply to them as well. However,
analysis of existing data indicates that the presence of individuals
who are blind has little impact on the overall performance of combined
DSUs as compared to the overall performance of general DSUs (i.e.,
those that do not serve the visually impaired). Accordingly, general
and combined DSUs would be subject to the same performance levels.
Some DSUs that operate under an order of selection pursuant to
Sec. 361.36(a)(1)(ii) also suggested that separate performance levels
be established under Evaluation Standard 1 for those agencies. Again,
analysis of existing data indicates that an order of selection has
little impact on the overall performance of DSUs on the performance
indicators for Evaluation Standard 1. Thus, the NPRM does not include
separate performance levels for DSUs operating under an order of
selection.
Proposed Sec. 361.86(a)(2) would allow the Secretary to establish
new performance levels through the regulatory process after obtaining
public comment. The Secretary plans to increase performance levels over
time based on experience and considers the performance levels proposed
in Sec. 361.86(b)(1) and (2) as only the first step in ensuring
improved DSU performance.
Proposed performance levels for Evaluation Standard 1 are presented
in Sec. 361.86(b)(1). Each of the proposed levels for the Performance
Indicators 1.1 through 1.7 identify the minimum level of performance
necessary to pass a given indicator. The Secretary believes that these
levels would accurately reflect whether a DSU is successfully assisting
individuals with disabilities to achieve employment outcomes consistent
with the Act's purposes. To achieve successful performance on
Evaluation Standard 1, a DSU would have to meet or exceed the
performance levels on at least two of the three primary indicators
(1.3, 1.4 and 1.5) and a total of at least five of the seven
performance indicators (1.1 through 1.7).
The proposed levels for each of the proposed performance indicators
that will be used for determining compliance with the proposed
evaluation standards were developed in recognition of the fact that
DSUs typically focus their efforts on certain VR program-related areas
(e.g., assisting individuals with significant disabilities; maximizing
competitive employment outcomes). The proposed regulations also would
require DSUs to concentrate, to some extent, on the proposed ``primary
indicators'' (indicators 1.3, 1.4, and 1.5), which the Secretary
considers the most critical measures of a successful VR program.
Consequently, the Secretary expects that DSUs will greatly exceed many
of the proposed levels, particularly the levels for those indicators
that reflect a DSU's priority areas. As a whole, the levels represent
only the minimum level of performance that the Secretary believes is
appropriate for each indicator, regardless of whether the DSU focuses
most of its efforts elsewhere. In other words, although a DSU can, and
to some extent is required to, focus on the purposes reflected in
certain indicators (e.g., increasing competitive employment outcomes),
the DSU should still be able to perform at the proposed level for the
remaining indicators. The specified performance levels were developed
following extensive analyses of past DSU performance in each of the
areas addressed by the indicators. The Secretary believes that DSUs
that fail to satisfy the proposed levels (for two of the three primary
indicators or five of the seven indicators total) likely have
significant systemic deficiencies and are in need of assistance to
improve their program. The proposed minimum levels are designed
specifically to identify those DSUs.
Proposed Sec. 361.86(b)(2) would require each DSU to meet the
performance level of .80 for both Performance Indicators 2.1 and 2.2,
or, in the alternative, describe the actions it has taken and policies
it has implemented to ensure that individuals with disabilities from
minority backgrounds have equal access to VR services. The Secretary
proposes the .80 level, as opposed to the 1.0 full parity level, to
reflect the fact that minor deviations in service rates may not be
related to any discriminatory policy or practice followed by the DSU.
On the other hand, the Secretary believes that the proposed level
represents a significant disparity in service rates for minority and
non-minority individuals (or in the proportion of minority individuals
with significant disabilities receiving VR services relative to their
population) and that the existence of such a disparity should result in
the DSU's reexamination of its policies and practices to ensure that
they do not have a discriminatory effect on individuals from minority
backgrounds.
Under Sec. 361.86(b)(2)(i), a DSU would have to demonstrate that it
had adopted policies and taken steps to ensure that individuals with
disabilities from minority backgrounds have equal access to VR services
if its performance did not meet the performance level for proposed
[[Page 55299]]
Performance Indicator 2.1. The Secretary proposes to provide this
alternative to meeting the performance level to clarify that numerical
quotas are not required. In addition, a DSU would have to make the same
demonstration if the denominator of a service rate (i.e., individuals
exiting the VR program) represents less than 100 cases. If fewer than
100 individuals exit the VR program, slight changes in the number of
individuals receiving services would have an inordinate effect on the
service rate and would not permit accurate assessment of the DSU's
performance.
Under Sec. 361.86(b)(2)(ii), a DSU would have to demonstrate that
it had undertaken appropriate actions to ensure, through outreach and
recruitment activities, that individuals with disabilities from
minority backgrounds have equal access to VR services if the DSU did
not meet the performance level for proposed Performance Indicator 2.2.
This demonstration requirement also would apply if the denominator of
the calculation in the performance indicator represents less than 100
cases in order to ensure that only statistically reliable calculations
are used to measure performance.
Section 361.88--Reporting Requirements
Proposed Sec. 361.88 contains DSU reporting requirements related to
the proposed evaluation standards and performance indicators. Proposed
Sec. 361.88(a) would require each DSU to report, within 60 days after
the end of each fiscal year, the extent to which it is in compliance
with the evaluation standards and performance indicators and also
report the raw performance data (contained in the RSA-911 report)
specified in Sec. 361.88(a)(1) through (13). Proposed Sec. 361.88(a)(1)
through (13) describe the performance data DSUs would be required to
report.
In lieu of the report required under Sec. 361.88(a), proposed
Sec. 361.88(b) would permit a DSU to submit its raw RSA-911 performance
data on tape, diskette, or any alternative electronic format that is
compatible with RSA's capability to process such an alternative. In
most instances, a DSU will report raw data to RSA through the RSA-911
report, which is also due 60 days after the end of each fiscal year.
RSA will make the appropriate calculations to determine DSU
performance. RSA also will collect the relevant census and earnings
data for those performance indicators that rely on that data to
determine DSU performance. This census and earnings data will be
available for review upon request.
Proposed Sec. 361.88(c) would require that the data reported by a
DSU be valid, accurate, and in a consistent format. A DSU that fails to
submit data that is valid, accurate, and in a consistent format within
the 60-day period would be required to develop a program improvement
plan pursuant to proposed Sec. 361.89(a).
Section 361.89--Enforcement Procedures
Proposed Sec. 361.89 contains procedures for the enforcement of the
evaluation standards and performance indicators. The proposed
enforcement procedures, including reduction in or loss of funding, are
consistent with section 106(b) and (c) of the Act.
Under proposed Sec. 361.89(a), a DSU that fails to meet the
performance level required on both evaluation standards would be
required to develop jointly with the Secretary a program improvement
plan outlining the specific actions to be taken by the DSU to improve
program performance.
Proposed Sec. 361.89(b) would require that the Secretary examine
all available, relevant information in connection with the development
of a program improvement plan.
Proposed Sec. 361.89(c) would require that program improvement
plans be reviewed at least biannually to determine whether the desired
performance improvements have occurred or are likely to occur. If
necessary, the Secretary would request that the plan be modified to
improve performance. In addition, a program improvement plan would have
to be modified by the DSU to address any new performance levels
established by the Secretary during the time in which the plan is in
effect. This requirement is intended to ensure that DSUs meet current,
rather than outdated, performance levels. Reviews would continue and
requests for revisions would be made until the DSU sustains
satisfactory performance over a period of more than one year.
Under proposed Sec. 361.89(d), if the Secretary determines that a
DSU with less than satisfactory performance has failed to enter into a
program improvement plan or comply substantially with the terms and
conditions of such a program improvement plan, the Secretary,
consistent with the procedures specified in Sec. 361.11, would reduce
or suspend funding to the DSU under the VR program until the DSU has
met one of these two requirements or raised its subsequent performance
to meet the current overall minimum satisfactory level on the
compliance indicators.
Draft Proposed Standards and Indicators on Which the Secretary
Seeks Public Comment
Background
In addition to inviting public comment on each of the proposed
evaluation standards and performance indicators included in this NPRM,
the Secretary also seeks public comment on three draft proposed
evaluation standards and their concomitant draft proposed indicators.
The Secretary particularly seeks comment on the validity and
feasibility of implementing these draft proposed evaluation standards
and draft proposed indicators. Further, the Secretary seeks assistance
in identifying available instruments and methods that can be used to
gather the data necessary to measure performance under these draft
proposed evaluation standards and draft proposed indicators and in
determining how these data-gathering instruments and methods may be
developed. These draft proposed evaluation standards would measure a
DSU's performance in three areas: consumer satisfaction with the VR
program, retention of employment and earnings by those exiting the VR
program after achieving an employment outcome, and the adequate use of
VR program resources to support direct services for individuals with
disabilities. The Secretary is not proposing to include these draft
proposed measures as part of the proposed regulations in this NPRM.
Rather, the Secretary is identifying these measures in the preamble in
order to obtain public comment on their potential use and
appropriateness in measuring the success of the VR program. The
Secretary is in the process of developing valid data collection methods
and instruments for measuring compliance with the draft proposed
performance indicators and seeks input from commenters in identifying
instruments that are accurate, reliable, and the least costly to DSUs.
Once necessary instruments have been developed, and subsequent tests
confirm their reliability, the Secretary will address these evaluation
standards and performance indicators in a future rulemaking. The draft
proposed evaluation standards and performance indicators are stated and
discussed below.
* Draft Proposed Evaluation Standard 3 (Consumer
Satisfaction): A DSU shall ensure a high level of consumer
satisfaction.
Draft proposed Evaluation Standard 3 is based on several provisions
of the Act, including sections 101(a)(21)(A)(ii)(III) and 105(c)(4)of
the
[[Page 55300]]
Act, which require the use of consumer satisfaction surveys as a way of
assessing DSU effectiveness. In addition, many individuals in the
disability community have commented on the need for an evaluation
standard and related performance indicators that measure consumer
satisfaction, particularly satisfaction with the level of informed
choice afforded consumers during the VR process.
* Draft Proposed Evaluation Standard 4 (Retention of
Employment and Earnings): A DSU shall assist individuals to achieve
competitive,
self, or BEP employment outcomes that enable them to maintain their
employment and earnings over time.
The Secretary believes that a successful employment outcome is one
in which the individual maintains employment and earnings for at least
six months after exiting the program. As discussed previously, this
standard is consistent with Core Indicators II (retention in
unsubsidized employment six months after entry into employment) and III
(earnings received in unsubsidized employment six months after entry
into the employment) under section 136(b) of the Workforce Act. This
standard is also consistent with the reporting requirements in section
101(a)(10)(C) (iii) and (iv) of the Act (employment and earnings of
individuals 6 months and 12 months after ending participation in the VR
program) and in section 136(d)(2)(D) of the Workforce Act (retention of
employment and earnings received in unsubsidized employment 12 months
after entry into employment). Thus, under draft proposed Evaluation
Standard 4, retention of employment and earnings for individuals who
achieved an employment outcome with assistance from a DSU would be
evaluated following periods of 6 and 12 months. The Secretary is
particularly interested in receiving suggestions on how accurate and
reliable data could be collected in a consistent format to measure a
DSU's performance on this draft proposed evaluation standard.
* Draft Proposed Evaluation Standard 5 (Adequate Use of
Resources): A DSU shall focus its Federal VR and State matching funds
on direct services for individuals with disabilities.
Draft proposed Evaluation Standard 5 would measure the extent to
which a DSU uses its Federal VR and State matching funds to pay for
direct services (i.e., VR services authorized under Sec. 361.48(a) and
Sec. 361.49(a), except for the construction of facilities) for
individuals with disabilities. Section 100(b)(1) of the Act authorizes
appropriations for the purpose of making grants ``to assist States in
meeting the costs of vocational rehabilitation services.'' The
Secretary maintains that the success of the VR program is based on the
DSU's ability to provide VR services that enable individuals with
disabilities to work. For that reason, draft proposed Evaluation
Standard 5 would measure DSU effectiveness in focusing its resources on
the direct service needs of individuals with disabilities.
Draft Proposed Performance Indicators
The Secretary plans to propose three performance indicators for
draft proposed Evaluation Standard 3, two performance indicators for
draft proposed Evaluation Standard 4, and one performance indicator for
draft proposed Evaluation Standard 5. Again, data collection methods
and instruments have yet to be developed and tested for these
performance indicators. Thus, the Secretary is not proposing to
establish performance levels for, nor measure compliance with, these
draft proposed performance indicators at this time.
Consumer Satisfaction
* Draft Proposed Performance Indicator 3.1: Of all
individuals receiving VR services, the percentage who are satisfied
with their own level of participation in decision-making throughout the
development and implementation of their IPE.
Draft proposed Performance Indicator 3.1 would address the extent
to which a DSU implements the statutory policy of facilitating informed
choice. That policy is reflected, for example, in section 100(a)(3)(C)
of the Act, which states that eligible individuals and applicants
``must be active and full partners in the vocational rehabilitation
process, making meaningful and informed choices during assessments * *
* and in the selection of employment outcomes * * *, services needed to
achieve the outcomes, entities providing such services, and the methods
used to secure such services.''
* Draft Proposed Performance Indicator 3.2: Of all
individuals receiving services, the percentage who are satisfied with--
(1) The appropriateness, timeliness, quality, and extent of the
services they received;
(2) Their interactions with providers of those services; and
(3) Their interactions with VR counselors and other DSU staff.
Draft proposed Performance Indicator 3.2 is based on statutory
requirements that call for consumer satisfaction surveys to be used as
measures of DSU effectiveness (e.g., section 105(c)(4) of the Act
requiring that State Rehabilitation Councils survey the satisfaction of
individuals receiving VR services). Also, section 136(b)(2)(B) of the
Workforce Act requires an indicator of ``customer satisfaction of * * *
participants with services received'' to be developed for each State.
* Draft Proposed Performance Indicator 3.3: Of all
individuals who obtain employment, the percentage who are satisfied
with their employment.
Draft proposed Performance Indicator 3.3 is based upon the
regulatory requirements in Sec. 361.56 that govern whether an
individual is considered to ``have achieved an employment outcome.'' In
particular, Sec. 361.56(e) of the regulations requires that ``the
individual and the rehabilitation counselor or coordinator consider the
employment outcome to be satisfactory'' as a condition of determining
that the individual has achieved an employment outcome. The Secretary
seeks public comment on how this type of consumer satisfaction data
could be collected reliably and accurately in a manner that is the
least burdensome and costly to DSUs and invites commenters to submit
examples of existing State consumer satisfaction surveys and collection
methods.
Retention of Employment and Earnings
* Draft Proposed Performance Indicator 4.1: Of all
individuals who have achieved a competitive, self-, or BEP employment
outcome with earnings equivalent to at least the minimum wage, the
percentage who have maintained competitive employment, including
earnings equivalent to at least the minimum wage, 6 months and 12
months after exiting the VR program.
Retention of employment is an essential issue for both the
individual and the VR program that corresponds directly to the
employment-related purposes of the VR program. Draft proposed
Performance Indicator 4.1 would measure retention 6 months and 12
months after exit from the VR program, which the Secretary views as an
appropriate indicator of whether the individual is likely to maintain
employment over time.
* Draft Proposed Performance Indicator 4.2: Individuals with
significant disabilities who have maintained competitive employment,
including earnings equivalent to at least the minimum wage, 6 months
and 12 months after exiting the VR program as a percentage of all
individuals with significant disabilities who achieved a
[[Page 55301]]
competitive, self-, or BEP employment outcome with earnings equivalent
to at least the minimum wage.
Draft proposed Performance Indicator 4.2 was developed in
recognition of the greater barriers to long-term employment retention
faced by individuals with significant disabilities.
Adequate Use of Resources
* Draft Proposed Performance Indicator 5.1: Of the total
amount of all Federal VR and State matching funds spent in support of
activities described in the State Plan under section 101 of the Act,
the percentage of Federal VR and State matching funds spent on direct
services to consumers, including services provided directly by the
staff of a DSU.
Draft proposed Performance Indicator 5.1 would address a DSU's
success in operating an effective and efficient VR program. The
indicator would compare the level of Federal VR and State matching
funds that a DSU spends directly on services to individuals with
disabilities as a percentage of all Federal VR and State matching funds
that it expends for other purposes (e.g., administrative costs). RSA is
currently examining reliable methods for identifying direct services
costs that do not impose excessive reporting burdens on DSUs.
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 by the year 2000, 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. These proposed regulations would
further the objectives of this Goal because the development and
implementation of evaluation standards and performance indicators will
enhance the accountability and effectiveness of The State Vocational
Rehabilitation Services Program, which assists States in operating a
comprehensive, coordinated, effective, efficient, and accountable
program for vocational rehabilitation designed to assess, plan,
develop, and provide vocational rehabilitation services for individuals
with disabilities so that they may prepare for and engage in gainful
employment.
Executive Order 12866
1. Potential Costs and Benefits
These proposed regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order the Secretary has
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 determined by the
Secretary to be necessary for administering this program effectively
and efficiently. Burdens specifically associated with information
collection requirements are identified and explained elsewhere in this
preamble under the heading Paperwork Reduction Act of 1995.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these proposed regulations, the Secretary has
determined that the benefits of the proposed regulations justify the
costs.
The Secretary has also determined that this regulatory action does
not unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
To assist the Department in complying with the specific
requirements of Executive Order 12866, the Secretary invites comment on
whether there may be further opportunities to reduce any potential
costs or increase potential benefits resulting from these proposed
regulations without impeding the effective and efficient administration
of the program.
The potential costs and benefits of these proposed regulations are
discussed elsewhere in this preamble under the following headings:
``Supplementary Information'' and ``Paperwork Reduction Act of 1995.''
2. Clarity of the Regulations
Executive Order 12866 requires 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: (1) Are the requirements in the proposed regulations
clearly stated? (2) Do the regulations contain technical terms or other
wording that interferes with their clarity? (3) 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 they were divided into more (but
shorter) sections? (A ``section'' is preceded by the symbol ``Sec. ''
and a numbered heading; for example, Sec. 361.81 Applicable
definitions.) (4) Is the description of the proposed regulations in the
``Supplementary Information'' section of this preamble helpful in
understanding the proposed regulations? How could this description be
more helpful in making the proposed regulations easier to understand?
(5) What else could the Department do to make the proposed regulations
easier to understand?
A copy of any comments that concern how the Department could make
these proposed regulations easier to understand should be sent to
Stanley M. Cohen, Regulations Quality Officer, U.S. Department of
Education, 600 Independence Avenue, SW. (Room 5121, FB-10B),
Washington, D.C. 20202-2241.
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.
Because these proposed regulations would affect only States and
State agencies, the regulations would not have an impact on small
entities. States and State agencies are not defined as ``small
entities'' in the Regulatory Flexibility Act.
Paperwork Reduction Act of 1995
Sections 361.82, 361.84, 361.88, and 361.89 contain information
collection requirements. As required by the Paperwork Reduction Act of
1995 (44 U.S.C. 3507(d)), the Department of Education has submitted a
copy of these sections to OMB for its review.
Collection of Information: The State Vocational Rehabilitation Services
Program
States are eligible to apply for grants under these proposed
regulations. The information to be collected includes data reported to
assess compliance with established evaluation standards and performance
indicators for the VR program. The Department needs and uses the
information to comply with the provisions of section 106 of the Act
that mandates the establishment of evaluation standards and performance
indicators for the program.
All information is to be collected and reported annually. Annual
reporting and recordkeeping burden for this collection of information
is estimated to average one hour for each response for
[[Page 55302]]
one respondent, including the time for reviewing instructions searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. Thus, the total
annual reporting and recordkeeping burden for this collection is
estimated to be one hour.
Note: The burden is estimated as one hour because the remaining
burden hours are accounted for under a separate OMB control number
1820-0508, which is called the RSA 911 Case Service Report.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, Room 10235, New Executive
Office Building, Washington, DC. 20503; Attention: Desk Officer for
U.S. Department of Education.
The Department considers comments by the public on these proposed
collections of information in--
* Evaluating whether the proposed collections of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have practical use;
* Evaluating the accuracy of the Department's estimate of
the burden of the proposed collections of information, including the
validity of the methodology and assumptions used;
* Enhancing the quality, usefulness, and clarity of the
information to be collected; and
* Minimizing the burden of the collection of information on
those who are to respond, including through 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 collections of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not affect
the deadline for the public to comment to the Department on the
proposed regulations.
Intergovernmental Review
This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR Part 79. The objective of the
Executive order is to foster an intergovernmental partnership and a
strengthened federalism by relying on processes developed by State and
local governments for coordination and review of proposed Federal
financial assistance.
In accordance with the order, this document is intended to provide
early notification of the Department's specific plans and actions for
this program.
Assessment of Educational Impact
The Secretary particularly requests comments on whether the
proposed regulations in this document would require transmission of
information that is being gathered by or is available from any other
agency or authority of the United States.
Electronic Access to This Document
Anyone may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or
portable document format (pdf) on the World Wide Web at either of the
following sites:
http://gcs.ed.gov/fedreg.htm
http://www.ed.gov/news.html
To use the pdf you must have the Adobe Acrobat Reader Program with
Search, 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 toll free at 1-888-293-6498.
Anyone may also view these documents in text copy only on an
electronic bulletin board of the Department. Telephone: (202) 219-1511
or, toll free, 1-800-222-4922. The documents are located under Option
G--Files/Announcements, Bulletins and Press Releases.
Note: The official version of this document is the document
published in the Federal Register.
List of Subjects in 34 CFR Part 361
Reporting and recordkeeping requirements, State-administered grant
program--education, Vocational rehabilitation.
Dated: June 2, 1998.
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance Number 84.126--The State
Vocational Rehabilitation Services Program)
The Secretary proposes to amend Title 34 of the Code of Federal
Regulations by adding a new Subpart E to Part 361 to read as follows:
PART 361--THE STATE VOCATIONAL REHABILITATION SERVICES PROGRAM
* * * * *
Subpart E--Evaluation Standards and Performance Indicators
Sec.
361.80 Purpose.
361.81 Applicable definitions.
361.82 Evaluation standards.
361.84 Performance indicators.
361.86 Performance levels.
361.88 Reporting requirements.
361.89 Enforcement procedures.
Authority: 29 U.S.C. 711(c), unless otherwise noted.
* * * * *
Subpart E--Evaluation Standards and Performance Indicators
Sec. 361.80 Purpose.
The purpose of this subpart is to establish evaluation standards
and performance indicators for The State Vocational Rehabilitation (VR)
Services Program.
(Authority: 29 U.S.C. 726(a))
Sec. 361.81 Applicable definitions.
In addition to those definitions in Sec. 361.5(b), the following
definitions apply to this subpart:
Average hourly earnings means the average per hour earnings in the
week prior to exiting the VR program of an eligible individual who has
achieved a competitive employment outcome.
Business Enterprise Program (BEP) means an employment outcome in
which an individual with a significant disability operates a vending
facility or other small business under the management and supervision
of a designated State unit (DSU). This term includes home industry,
farming, and other enterprises.
Exit the VR program means that a DSU has closed the individual's
record of VR services in one of the following categories:
(1) Ineligible for VR services.
(2) Received services under an individualized plan for employment
(IPE) and achieved an employment outcome.
(3) Received services under an IPE but did not achieve an
employment outcome.
(4) Eligible for VR services but did not receive services under an
IPE.
Full-time employment means an employment outcome in which an
eligible individual worked for pay for a minimum of 35 hours in the
week before closure.
General or combined DSU means a DSU that does not serve exclusively
individuals with visual impairments or blindness.
Individuals from a minority background means individuals who report
their race or ethnicity as Black,
[[Page 55303]]
American Indian, Alaskan Native, Asian, Pacific Islander, or of
Hispanic origin.
Minimum wage means the higher of the rate specified in section
6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1))
(i.e., the Federal minimum wage) or applicable State minimum wage law.
Non-minority individuals means individuals having ethnicity or race
reported as White.
Performance period is the reporting period during which a DSU's
performance is measured. For Evaluation Standards 1 and 2, performance
data must be aggregated and reported for each fiscal year commencing
with fiscal year 1999. However, DSUs that exclusively serve individuals
with visual impairments or blindness shall report each year aggregated
data for the two previous years for Performance Indicators 1.1 through
1.7; the second year must coincide with the performance period for
general or combined DSUs.
Primary indicators means Performance Indicators 1.3, 1.4, and 1.5,
which are specifically designed to measure--
(1) The achievement of competitive, self-, or BEP employment with
earnings equivalent to the minimum wage or higher, particularly by
individuals with significant disabilities; and
(2) The ratio between the average hourly earnings of individuals
who exit the VR program in competitive, self-, or BEP employment with
earnings equivalent to the minimum wage or higher and the State's
average hourly earnings for all employed individuals.
RSA-911 means the Case Service Report that is submitted annually by
a DSU as approved by the Office of Management and Budget (OMB).
Self-employment means an employment outcome in which the individual
works for profit or fee in his or her own business, farm, shop, or
office, including sharecroppers.
Service rate means the result obtained by dividing the number of
individuals who exit the VR program after receiving one or more
services under an IPE during any reporting period by the total number
of individuals who exit the VR program (as defined in this section)
during that reporting period, including individuals who were determined
ineligible for services.
State's average hourly earnings means the average hourly earnings
of all persons in the State in which the DSU is located.
(Authority: 29 U.S.C. 726(a))
Sec. 361.82 Evaluation standards.
(a) The Secretary establishes two evaluation standards to evaluate
the performance of each DSU that receives funds under this part. The
evaluation standards assist the Secretary and each DSU to evaluate a
DSU's performance in serving individuals with disabilities under the
State VR Services Program.
(b) A DSU shall achieve successful performance on both evaluation
standards during each performance period.
(c) The evaluation standards for The State VR Services Program
are--
(1) Evaluation Standard 1--Employment outcomes. A DSU shall assist
any eligible individual, including an individual with a significant
disability, to obtain, maintain, or regain high-quality employment.
(2) Evaluation Standard 2--Equal access to services. A DSU shall
ensure that individuals from minority backgrounds have equal access to
VR services.
(Authority: 29 U.S.C. 726(a))
Sec. 361.84 Performance indicators.
(a) The performance indicators establish what constitutes minimum
compliance with the evaluation standards.
(b) The performance indicators require a DSU to provide information
on a variety of factors to enable the Secretary to measure compliance
with the evaluation standards.
(c) The performance indicators are as follows:
(1) Employment outcomes.
(i) Performance Indicator 1.1. The number of individuals exiting
the VR program who achieved an employment outcome during the current
performance period compared to the number of individuals who exit the
VR program after achieving an employment outcome during the previous
performance period.
(ii) Performance Indicator 1.2. Of all individuals who exit the VR
program after receiving services, the percentage who are determined to
have achieved an employment outcome.
(iii) Performance Indicator 1.3. Of all individuals determined to
have achieved an employment outcome, the percentage who exit the VR
program in competitive, self-, or BEP employment with earnings
equivalent to at least the minimum wage.
(iv) Performance Indicator 1.4. Of all individuals who exit the VR
program in competitive, self-, or BEP employment with earnings
equivalent to at least the minimum wage, the percentage who are
individuals with significant disabilities.
(v) Performance Indicator 1.5. The average hourly earnings of all
individuals who exit the VR program in competitive, self-, or BEP
employment with earnings levels equivalent to at least the minimum wage
as a ratio to the State's average hourly earnings for all individuals
in the State who are employed (as derived from the Bureau of Labor
Statistics report ``State Average Annual Pay'' for the most recent
available year).
(vi) Performance Indicator 1.6. Of all individuals who exit the VR
program in competitive, self-, or BEP employment with earnings
equivalent to at least the minimum wage, the difference between the
percentage who reported their own income as the largest single source
of economic support at exit and the percentage who reported their own
income as the largest single source of support at application.
(vii) Performance Indicator 1.7. Of all individuals exiting the VR
program in full-time competitive employment, the percentage exiting the
VR program in full-time competitive employment who can enroll in a
medical insurance plan that covers hospitalization and is made
available through the individual's place of employment.
(2) Equal access to services.
(i) Performance Indicator 2.1. The service rate for all individuals
with disabilities from minority backgrounds as a ratio to the service
rate for all non-minority individuals with disabilities.
(ii) Performance Indicator 2.2. The percentage of individuals with
significant disabilities who exit the VR program after receiving
services under an IPE who are minorities as a ratio to the percentage
of individuals in the State's working age population (individuals age
16 to 64) reporting a disability that prevents them from working (as
reported in U.S. Bureau of Census, Public Use Microdata System (PUMS),
1990 Decennial Census) who are minorities.
(Authority: 29 U.S.C. 726(a))
Sec. 361.86 Performance levels.
(a) General. (1) Paragraph (b) of this section establishes
performance levels for--
(i) General or combined DSUs; and
(ii) DSUs serving exclusively individuals who are visually impaired
or blind.
(2) The Secretary may establish, by regulations, new performance
levels.
(b) Performance levels for each performance indicator. (1) To
achieve successful performance on Evaluation Standard 1 (Employment
outcomes), a DSU must meet or exceed the performance levels established
for five of the seven performance indicators in the evaluation
standard, including
[[Page 55304]]
meeting or exceeding the performance levels for two of the three
primary indicators (Performance Indicators 1.3, 1.4 and 1.5). The
performance levels for Performance Indicators 1.1 through 1.7 are--
------------------------------------------------------------------------
Performance level by type of DSU
Performance indicator ----------------------------------------
General/combined Blind
------------------------------------------------------------------------
1.1............................ Equal or exceed
previous performance
period.
1.2............................ 55.8%................. 68.9%
1.3............................ 72.6%................. 35.4%
1.4............................ 62.4%................. 89.0%
1.5............................ .52 (Ratio)........... .59
1.6............................ 53.0 (math. 30.4
difference).
1.7............................ 50.6%................. 49.3%
------------------------------------------------------------------------
(2) To achieve successful performance on Evaluation Standard 2
(Equal access), DSUs must meet or exceed the performance level
established for Performance Indicator 2.1 or meet the performance
requirement in paragraph (b)(2)(i) of this section. DSUs must also meet
or exceed the performance level established for Performance Indicator
2.2 or meet the performance requirement in paragraph (b)(2)(ii) of this
section. The performance levels for Performance Indicators 2.1 and 2.2
are--
------------------------------------------------------------------------
Performance
Performance indicator levels
------------------------------------------------------------------------
2.1 (Ratio)................................................ .80
2.2 (Ratio)................................................ .80
------------------------------------------------------------------------
(i) If a DSU's performance does not meet or exceed the performance
level required for Performance Indicator 2.1, or if a DSU has less than
100 cases in the denominator of a service rate, the DSU shall describe
the policies it has adopted and the steps it has taken to ensure that
individuals with disabilities from minority backgrounds have equal
access to VR services.
(ii) If a DSU's performance does not meet or exceed the performance
level required for Performance Indicator 2.2, or if a DSU has less than
100 cases in the denominator of the calculation, a DSU shall describe
the outreach and recruitment activities it has undertaken and the
policies and other practices it has adopted to ensure that individuals
with disabilities from minority backgrounds have equal access to VR
services.
(Authority: 29 U.S.C. 726(a))
Sec. 361.88 Reporting requirements.
(a) The Secretary requires that each DSU report within 60 days
after the end of each fiscal year the extent to which the State is in
compliance with the evaluation standards and performance indicators and
include in this report the following RSA-911 data:
(1) The number of individuals who exited the VR program in each
closure category as specified in the definition of ``Exit the VR
program'' under Sec. 361.81.
(2) The number of individuals who exited the VR program in
competitive, self-, or BEP employment with earnings at or above the
minimum wage.
(3) The number of individuals with significant disabilities who
exited the VR program in competitive, self-, or BEP employment with
earnings at or above the minimum wage.
(4) The weekly earnings and hours worked of individuals who exited
the VR program in competitive, self-, or BEP employment with earnings
at or above the minimum wage.
(5) The number of individuals who exited the VR program in
competitive, self-, or BEP employment with earnings at or above the
minimum wage whose primary source of support at application was
``personal income.''
(6) The number of individuals who exited the VR program in
competitive, self-, or BEP employment with earnings at or above the
minimum wage whose primary source of support at closure was ``personal
income.''
(7) The number of individuals exiting the VR program in full-time
competitive employment.
(8) The number of individuals exiting the VR program in full-time
competitive employment who have health insurance that covers
hospitalization available through their job.
(9) The total number of individuals exiting the VR program who are
individuals from a minority background.
(10) The total number of non-minority individuals exiting the VR
program.
(11) The total number of individuals from a minority background
exiting the VR program after receiving services under an IPE.
(12) The total number of non-minority individuals exiting the VR
program after receiving services under an IPE.
(13) The number of individuals from a minority background who are
individuals with significant disabilities and exit the VR program after
receiving services under an IPE.
(b) In lieu of the report required in paragraph (a) of this
section, a DSU may submit its RSA-911 data on tape, diskette, or any
alternative electronic format that is compatible with RSA's capability
to process such an alternative, as long as the tape, diskette, or
alternative electronic format includes the data that--
(1) Are required by paragraph (a)(1) through (13) of this section;
and
(2) Meet the requirements of paragraph (c) of this section.
(c) Data reported by a DSU must be valid, accurate, and in a
consistent format. A DSU's failure to submit data that are valid,
accurate, and in a consistent format within the 60-day period will
require the DSU to develop a program improvement plan pursuant to
Sec. 361.89(a).
(Authority: 29 U.S.C. 726(b))
Sec. 361.89 Enforcement procedures.
(a) If a DSU fails to meet the established performance levels on
both evaluation standards as required by Sec. 361.82(b), the Secretary
and the DSU jointly develop a program improvement plan that outlines
the specific actions to be taken by the DSU to improve program
performance.
(b) In developing the program improvement plan, the Secretary
considers all available and relevant data and information related to
the DSU's performance.
(c) When a program improvement plan is in effect, review of the
plan is conducted on a biannual basis. If necessary, the Secretary
requests that a DSU make further revisions to the plan to improve
performance. If the Secretary establishes new performance levels under
Sec. 361.86(a)(2), the Secretary and the DSU jointly shall modify the
program improvement plan based on the new performance levels. The
Secretary continues reviews and requests revisions until the DSU
sustains satisfactory performance based on the
[[Page 55305]]
current performance levels over a period of more than one year.
(d) If the Secretary determines that a DSU with less than
satisfactory performance has failed to enter into a program improvement
plan or comply substantially with the terms and conditions of the
program improvement plan, the Secretary, consistent with the procedures
specified in Sec. 361.11, reduces or makes no further payments to the
DSU under this program until the DSU has met one of these two
requirements or raised its subsequent performance to meet the current
overall minimum satisfactory level on the compliance indicators.
(Authority: 29 U.S.C. 726(b) and 726(c))
[FR Doc. 98-27421 Filed 10-13-98; 8:45 am]
BILLING CODE 4000-01-P