Subject: DOE: State Vocational Rehabilitation Services Program; Proposed Rule

[Federal Register: June 26, 2000 (Volume 65, Number 123)] [Proposed Rules] [Page 39491-39497] >From the Federal Register Online via GPO Access [] [DOCID:fr26jn00-22]


34 CFR Part 361 State Vocational Rehabilitation Services Program; Proposed Rule [snip] DEPARTMENT OF EDUCATION 34 CFR Part 361 RIN 1820-AB52

State Vocational Rehabilitation Services Program

AGENCY: Office of Special Education and Rehabilitative Services, Department of Education.

ACTION: Notice of proposed rulemaking.--------------------------------------------------------------

SUMMARY: The Secretary proposes to amend the regulations governing the State Vocational Rehabilitation Services Program (VR program) by revising the scope of available employment outcomes under the VR program. The proposed regulations would redefine the term ``employment outcome'' to include only those outcomes in which an individual with a disability works in an integrated setting. This action is necessary to reflect the purpose of Title I of the Rehabilitation Act of 1973, as amended (Act) (29 U.S.C. 701-744), which is to enable individuals with disabilities who participate in the VR program to achieve an appropriate employment outcome in the competitive, integrated labor market.

DATES: We must receive your comments by August 25, 2000.

ADDRESSES: Address all comments about these proposed regulations to Fredric K. Schroeder, U.S. Department of Education, 400 Maryland Avenue, SW., room 3028, Mary E. Switzer Building, Washington, DC 20202- 2531. Comments also may be sent by facsimile to (202) 205-9874. If you prefer to send your comments through the Internet, use the following address: You must include the term ``VR Regulations--Employment Outcome'' in the subject line of your electronic message. If you want to comment on the information collection requirements, you must send your comments to the Office of Management and Budget at the address listed in the Paperwork Reduction Act section of this preamble. You may also send a copy of these comments to the Department representative named in this section.

FOR FURTHER INFORMATION CONTACT: Beverlee Stafford, U.S. Department of Education, 400 Maryland Avenue, SW., room 3014, Mary E. Switzer Building, Washington, DC. 20202-2531. Telephone (202) 205-8831. If you use a telecommunications device for the deaf (TDD), you may call (202) 205-5538. Individuals with disabilities may obtain this document in an alternate format (e.g., Braille, large print, audiotape, or computer diskette) on request to Katie Mincey, Director, Alternate Formats Center, U.S. Department of Education, 400 Maryland Avenue, SW., room 1000, Mary E. Switzer Building, Washington, DC. 20202-2531. Telephone (202) 260-9895. If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1- 800-877-8339.


Invitation To Comment

We invite you to submit comments regarding these proposed regulations. To ensure that your comments have maximum effect in developing the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each of your comments addresses and to arrange your comments in the same order as the proposed regulations. We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these proposed regulations. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the VR program. During and after the comment period, you may inspect all public comments about these proposed regulations in room 3214, Mary E. Switzer Building, 330 C Street, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record

On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, you may call (202) 205- 8113 or (202) 260-9895. If you use a TDD, you may call the Federal Information Relay Service at 1-800-877-8339.


The State Vocational Rehabilitation Services Program (VR program) makes available to individuals with disabilities, particularly those with significant disabilities, necessary vocational rehabilitation (VR) services so that they may enter or continue to work in the competitive, integrated labor market along with the general population. The chief measure of success of a State VR agency's efforts in serving a participant in the VR program is whether the individual has achieved an appropriate employment outcome, in particular a high-quality, competitive job in an integrated setting. Integrated employment settings generally refer to those settings that are typically found in the community in which individuals with disabilities have the same opportunity to interact with others as is given to any other person (see 34 CFR 361.5(b)(30)(ii) of the current VR program regulations for a detailed definition). Accordingly, this notice of proposed rulemaking (NPRM) addresses the scope of available outcomes under the VR program in order to ensure that program participants attain jobs in the competitive, integrated labor market as the Act intends. The statutory authority for the VR program, Title I of the Act, has, over time, placed greater and greater emphasis on integration, a fact further reflected in recent reauthorizations. As indicated in section 100(a)(1) of the Act, a provision retained in the 1998 Amendments to the Act, individuals with disabilities, including individuals with the most significant disabilities, have demonstrated their ability to achieve gainful employment in integrated settings if appropriate services and supports are provided. Recent legislative history also reflects Congress' commitment to ensuring that individuals with significant disabilities be able to progress to jobs in the competitive integrated job market (see e.g., Senate Report 105-166, p. 13). The scope of employment outcomes authorized under the VR program must be consistent with the definition of ``employment outcome'' in section 7(11) of the Act. That section of the Act, which explicitly refers only to employment outcomes that occur in integrated settings, defines ``employment outcome'' as full-time or, if appropriate, part- time competitive employment in the integrated labor market, supported employment, or any other vocational outcome the Secretary may determine to be appropriate (including the vocational outcome of self-employment, telecommuting, or business ownership), consistent with the requirements of the Act [emphasis added]. Thus, the Act entrusts the Secretary to determine the scope of employment outcomes, other than competitive employment (i.e., integrated work at or

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above minimum wage--see 34 CFR 361.5(b)(10)) and supported employment (integrated work with ongoing support services--see 34 CFR 361.5(b)(46)), which individuals with disabilities should pursue under the VR program consistent with the Act's requirements. Through this NPRM, we are proposing to amend the current regulations governing the VR program (34 CFR part 361) to no longer consider extended employment (also referred to as non-integrated or sheltered employment) as an employment outcome under the VR program. We believe the proposed regulatory changes are necessary to implement the clear emphasis that the Act places on competitive employment and supported employment--outcomes that occur in integrated settings. At the same time, however, the proposed changes would not prohibit State VR agencies from serving individuals, or enabling individuals to work, in extended employment settings (also referred to as non-integrated or sheltered settings) if appropriate to the individual, but would ensure that those individuals are provided the services that they need to transition to the competitive labor market in the community. On February 28, 2000, we published an NPRM (65 FR 10620) that would implement extensive changes to the current VR program regulations to reflect statutory changes made by the Rehabilitation Act Amendments of 1998 (1998 Amendments). As mentioned previously, the proposal in this new NPRM to change the regulatory definition of the term ``employment outcome,'' and to implement corresponding changes to other sections of the current regulations affected by the revised definition, are based not only on the 1998 Amendments, but on the emphasis that the Act, over time, has placed on enabling individuals in sheltered employment to transition to employment outcomes in the competitive, integrated labor market. Although these proposed changes were not developed in time to be included in the February 28 NPRM, we consider this new NPRM critical to realizing the full potential of individuals with significant disabilities. Thus, it is our intent to implement these new changes as part of the final regulations that follow the February 28 proposed regulations. We also note that the proposed regulations would not exclude from the scope of ``employment outcomes'' under the VR program all positions obtained by individuals with disabilities under certain types of set- aside contracts authorized by the Javits-Wagner-O'Day Act (JWOD), 41 U.S.C. 46-48. For example, service-related jobs performed under JWOD contracts and in settings that satisfy the definition of ``integrated setting'' in 34 CFR 361.5(b)(30)(ii) (i.e., a setting typically found in the community in which the VR program participant's interaction with non-disabled persons is the same as that experienced by a non-disabled person in a comparable position) would meet the definition of ``employment outcome'' in the proposed regulations. Those positions are to be contrasted with jobs in sheltered settings performed under JWOD contracts or other arrangements that are not integrated and would not be considered employment outcomes. The determination as to whether any job, including those obtained under JWOD contracts, meets the regulatory definition of ``integrated setting,'' and therefore qualifies as an ``employment outcome'' under the proposed regulations, should be made on a case-by-case basis.

Section-by-Section Summary

Section 361.5 Applicable Definitions

Employment Outcome; Extended Employment The chief revision to the current regulations that would be implemented by this NPRM concerns the scope of outcomes, other than competitive employment and supported employment, covered under the definition of ``employment outcome.'' Specifically, the current regulatory definition would be changed to include only employment in integrated settings, meaning that jobs in sheltered or other non- integrated settings would no longer be recognized as ``employment outcomes'' under the VR program. In particular, ``extended employment,'' which is defined in both the current and proposed regulations as work in a non-integrated or sheltered setting for a nonprofit entity along with any support services that the individual needs in order to prepare for competitive employment, would not be an authorized employment outcome under the proposed regulations. The changes to the current regulations proposed in this NPRM, while essential to fulfilling the expectation in the Act that individuals with disabilities are generally capable of pursuing competitive, integrated work in the community, should not cause great difficulty to State VR units in administering their programs. Under the current regulations, the VR program pays the short-term costs of services (e.g., vocational evaluation, work adjustment, and other training services) that enable an individual to perform work in an extended employment setting. The ongoing costs of services associated with an individual who remains in extended employment are typically borne by other State and local resources. In addition, only a relatively small number of individuals exit the VR program after obtaining non- integrated employment (about 3.5% of outcomes nationwide in 1998, the most current data available). Thus, it is evident that many State units already have been deemphasizing non-integrated work as a final employment goal for some time. Those units have come to realize, as is reflected throughout the Act's legislative history, that in the past individuals with disabilities were too often inappropriately placed in sheltered settings as a final outcome rather than as a temporary placement from which the individual could transition to a job in the community. The proposed regulations would continue to allow State units to use extended employment jobs as interim steps for VR program participants.

[SNIP -- long announcement. See complete announcement at: d=00-15991-filed