VA Vocational Rehabilitation and Employment Nomenclature Change for Position Title-Revision, 54295-54298 [2017-24949]

Download as PDF Federal Register / Vol. 82, No. 221 / Friday, November 17, 2017 / Rules and Regulations Unfunded Mandates This rulemaking will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rulemaking, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. List of Subjects in 30 CFR Part 943 Intergovernmental relations, Surface mining, Underground Mining. Dated: October 31, 2017. Alfred L. Clayborne, Regional Director, Mid-Continent Region. For the reasons set out in the preamble, 30 CFR part 943 is amended as set forth below: PART 943—TEXAS 1. The authority citation for Part 943 continues to read as follows: ■ Authority: 30 U.S.C. 1201 et seq. 2. In § 943.15, the table is amended by adding a new entry in chronological order to read as follows: ■ § 943.15 Approval of Texas regulatory program amendments. * * * Original amendment submission date Date of final publication * * * November 17, 2015 ......................................................... * * * November 17, 2017 ......................................................... BILLING CODE 4310–05–P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 21 RIN 2900–AQ11 VA Vocational Rehabilitation and Employment Nomenclature Change for Position Title—Revision Department of Veterans Affairs. Interim final rule. AGENCY: ACTION: The Department of Veterans Affairs (VA) published a final rule in the Federal Register on May 2, 2016, which amended a number of regulations in the Code of Federal Regulations (CFR) to authorize personnel hired by VA’s Vocational Rehabilitation and Employment (VR&E) Service under the title ‘‘Vocational Rehabilitation Counselor’’ (VRC) to make the same determinations with respect to Chapter 31 services and benefits as personnel who had been hired under the title ‘‘Counseling Psychologist’’ (CP). The preamble to that final rule cited supporting documents inaccurately and failed to properly explain the qualifications for and duties of this VR&E position responsible for making determinations with respect to Chapter 31 services and benefits. This interim final rule corrects those inaccuracies, more clearly explains the basis for the final rule, and invites public comment on the changes made to VA’s regulations in the May 2, 2016, final rule. DATES: Effective Date: This interim final rule is effective November 17, 2017. VA must receive comments on or before December 18, 2017. rmajette on DSKBCKNHB2PROD with RULES SUMMARY: VerDate Sep<11>2014 13:56 Nov 16, 2017 Jkt 244001 Submit written comments through http://www.Regulations.gov; by mail or hand-delivery to: Director, Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Ave. NW., Room 1063B, Washington, DC 20420; or by fax to (202) 273–9026. (This is not a toll-free telephone number.) Comments should indicate that they pertain to ‘‘RIN 2900– AQ11, VA Vocational Rehabilitation and Employment Nomenclature Change for Position Title—Revision.’’ Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461–4902 for an appointment. (This is not a toll-free telephone number.) In addition, comments may be viewed online through the Federal Docket Management System (FDMS) at http://www.Regulations.gov. FOR FURTHER INFORMATION CONTACT: C.J. Riley, Senior Policy Analyst, Vocational Rehabilitation and Employment Service (28), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, Christi.Hellard@va.gov, (202) 461–9600. (This is not a toll-free telephone number.) SUPPLEMENTARY INFORMATION: In a final rule published in the Federal Register on May 2, 2016, at 81 FR 26130, VA amended a number of regulations in Part 21, CFR, to add the title ‘‘VRC’’ for the position responsible for making certain determinations with respect to Chapter 31 services and benefits. In the preamble to the final rule, we stated that the revisions were non-substantive and intended to reflect the fact that the CP and VRC position titles are synonymous because the positions have the same job duties and qualifications. We also stated ADDRESSES: [FR Doc. 2017–24620 Filed 11–16–17; 8:45 am] PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 54295 * * Citation/description * 16 TAC 12.108(b)(1)–(3). that the final rule was necessary to ensure consistency. The preamble referenced a performance plan that was purportedly implemented on December 16, 2003, that described how the job duties of and qualifications for a CP and VRC were the same. However, the performance plan was implemented on July 1, 2004, rather than on December 16, 2003, and does not provide that the two positions have the same qualifications. Nonetheless, VRCs are fully qualified to perform the duties specified in Chapter 31 regulations. Therefore, because reversing the changes published in the Federal Register on May 2, 2016, would be harmful to Veterans seeking vocational rehabilitation services for reasons discussed below, we are not reversing those changes at this time. However, VA is seeking public comment on those changes, as further explained in this document. The explanation that follows corrects the inaccuracies in the preamble to the final rule and more clearly explains the basis for the rule. VA’s VR&E program serves an important function: To assist Veterans who have service-connected disabilities and barriers to employment in obtaining and maintaining suitable employment and achieving maximum independence in daily living. In 1996, VA began to allow use of Office of Personnel Management (OPM) classification series GS–0101, Social Science, to hire personnel under the title ‘‘VRC’’ to provide rehabilitation services. Such services include, but are not limited to, deciding eligibility and entitlement, developing rehabilitation plans, and delivering case management services. VA’s VR&E program had previously hired personnel under the title ‘‘CP,’’ OPM classification series GS–0180, Psychology, to provide these types of rehabilitation services. Since 1996, after E:\FR\FM\17NOR1.SGM 17NOR1 rmajette on DSKBCKNHB2PROD with RULES 54296 Federal Register / Vol. 82, No. 221 / Friday, November 17, 2017 / Rules and Regulations use of the GS–0101 series was allowed, the VR&E program had hired personnel under either series to provide the same types of rehabilitation services and perform the same work. In 2015, VA’s Office of Human Resources and Administration concluded that use of the GS–0180 series was not as appropriate as use of the GS–0101 series for personnel whom VA hires to provide rehabilitation services, because the majority of the duties these VR&E personnel perform most closely meets the standards associated with the GS– 0101 series. Accordingly, VA discontinued use of the GS–0180 series for these VR&E positions. Although the VR&E program began to fill vacant positions using the GS–0101 series under the ‘‘VRC’’ title, the personnel who had been hired using GS–0180 series under the ‘‘CP’’ title kept their title and continued to perform under their existing position descriptions. VR&E Service had updated a few, but not all, regulations governing the delivery of Chapter 31 services and benefits to reflect the hiring of personnel under the title ‘‘VRC’’ for the position responsible for making certain determinations. Specifically, on April 11, 1997 (62 FR 17706), VA issued a final rule defining VRC in 38 CFR 21.35. On March 26, 2007 (72 FR 14041), VA issued a final rule revising 38 CFR 21.50, 21.51, and 21.52 to describe determinations that a VRC may make during an initial evaluation, including the existence of an employment handicap and a serious employment handicap. On January 20, 2010 (75 FR 3165), VA issued a final rule revising 38 CFR 21.42, 21.44, and 21.45 to specify determinations that a VRC may make regarding a claimant’s eligibility period to receive Chapter 31 services. In September 2014, a Veteran advocate contacted VR&E Service and indicated that he believed that VA had erroneously denied benefits because VA improperly interpreted regulations regarding the roles of CPs and VRCs when making specific determinations. Additionally, the Board of Veterans’ Appeals has remanded cases to regional offices with instructions for a CP to make determinations that a VRC already made, noting that regulations require CPs to make these determinations. Because the VR&E program stopped hiring under the ‘‘CP’’ title, the VR&E program’s national workforce does not have enough CPs to comply with these instructions. Thus, on May 2, 2016, we amended the remainder of our regulations regarding the roles of CPs and VRCs to ensure consistency with respect to position titles and to clarify that VRCs are authorized to make the VerDate Sep<11>2014 13:56 Nov 16, 2017 Jkt 244001 same determinations as CPs with regard to Chapter 31 services and benefits. The shift towards staffing the VR&E positions responsible for making certain determinations with respect to Chapter 31 services and benefits under the VRC title rather than under the CP title reflects a more appropriate classification based on OPM standards and the type of work performed. This shift does not reflect a material change in the duties of or qualifications for the position. Regardless of the classification, VRCs perform the same duties as CPs perform in the VR&E program, and VRCs are fully qualified to perform these duties. Section 3118(c) of title 38, United States Code, requires VA to establish the necessary and appropriate qualifications for personnel providing evaluation and rehabilitation services under Chapter 31, and to take into account the qualifications established for comparable personnel under the Rehabilitation Act of 1973 (29 U.S.C. Chapter 16). Under this Act, comparable personnel are required to have a baccalaureate degree in a field of study reasonably related to vocational rehabilitation and at least one year of experience working with individuals with disabilities, providing direct service or advocacy, or having direct experience as an employer. In lieu of the experience, personnel may obtain a master’s or doctoral degree in a field of study such as vocational rehabilitation counseling, law, social work, psychology, disability studies, or special education. See 29 U.S.C. 721(a)(7)(B)(ii). VA implemented section 3118(c) by prescribing the qualifications for VRCs in VA’s Staffing Handbook (VA Handbook 5005/6, Part II, Appendix F2 (June 3, 2004)). The VR&E program requires all personnel hired as VRCs to hold a master’s degree in rehabilitation counseling, including an internship, or in counseling psychology, or a related field, including at least 30 semester hours of course work in the foundations of rehabilitation counseling, human growth and development, counseling theories and techniques, vocational assessment, career development, job placement, case management, or medical/psycho-social aspects of disability. In addition, total graduate study must have included or been supplemented by a supervised internship or successful professional experience following the completion of the master’s degree. These requirements are comparable to the requirements applicable to CP positions but are more accurately aligned with the needs of the VR&E program, which is focused on helping Veterans obtain and maintain suitable employment. See the OPM Web PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 site describing general qualifications for CP classification, https://www.opm.gov/ policy-data-oversight/classificationqualifications/general-schedulequalification-standards/0100/ psychology-series-0180/ (last visited August 10, 2017). Requiring VRCs to have these qualifications puts them in a similar position to CPs, who are required to have comparable qualifications. With comparable qualifications and experience in the closely related fields of counseling psychology and/or rehabilitation counseling, both VRCs and CPs have the same skills and capabilities necessary to perform the duties required for this program, such as counseling, rehabilitation, and employment assistance. Additionally, as indicated in the most recent VRC position description released with VR&E Letter 28–14–13 on February 20, 2014, VRCs must possess knowledge of psychological, rehabilitation, and counseling theory and principle, as well as special knowledge of rehabilitation counseling skills, techniques, and resources needed to work with Veterans with multiple serious disabilities, Veterans who are largely confined to their homes due to disabilities, Veterans who have serious mental disabilities, and Veterans who have problems adjusting to social and occupational demands. VRCs must also have knowledge of the principles and procedures of psychological and vocational testing and research statistics used to assess a Veteran’s interests, aptitudes, abilities, and personality characteristics. In addition, VRCs must know the requirements for independent living, and understand the limitations of, and services required by, individuals with severe disabilities. Finally, VRCs must know career development theory and job placement, and understand current labor market conditions and occupational trends and how to improve employability using the information obtained from transferable work-skills analyses. Staffing the program with VRCs is a valid programmatic choice because, equipped with such knowledge, VRCs can capably and competently perform the required counseling, rehabilitation, and employment assistance tasks. For example, VRCs have knowledge of psychological, rehabilitation, and counseling theory and principle, and possess rehabilitation counseling skills and techniques to work with emotionally and physically-disabled individuals and prepare them for suitable employment. They understand the requirements for independent living and the services individuals with severe E:\FR\FM\17NOR1.SGM 17NOR1 Federal Register / Vol. 82, No. 221 / Friday, November 17, 2017 / Rules and Regulations rmajette on DSKBCKNHB2PROD with RULES disabilities require, and they possess the skills and qualifications to effectively perform initial evaluations and make accurate eligibility determinations. Additionally, they know the principles and procedures of psychological and vocational testing and research statistics to competently assess a Veteran’s interests, aptitudes, abilities, and personality characteristics to provide the most appropriate rehabilitation planning services. Finally, they have a comprehensive understanding of current labor market conditions and occupational trends to identify the appropriate employment options for each individual they counsel. Requiring VRCs to have such knowledge ensures that VRCs have the capability to assist Veterans with service-connected disabilities in achieving maximum independence in daily living and obtaining and maintaining suitable employment. Because VRCs are fully qualified to perform the duties of this VR&E position, and because the VR&E program’s national workforce does not have enough CPs to fulfill all the required duties of this position, we amended our regulations to authorize VRCs to make the same determinations as CPs with regard to Chapter 31 services and benefits. Accordingly, we adopt, without change, the rule published in the Federal Register on May 2, 2016. Administrative Procedure Act In accordance with 5 U.S.C. 553(b)(B) and (d)(3), the Secretary finds that there is good cause to dispense with the opportunity for prior notice and comment and good cause to publish this rule with an immediate effective date. The Secretary finds that it is impracticable and contrary to the public interest to delay this rule for the purpose of soliciting prior public comment or to have a delayed effective date, or to reverse the changes made on May 2, 2016, while public comment is being received. The Secretary is issuing this rule to clear up confusion among Veterans and prevent a detrimental impact with regard to the VR&E program. Failure to incorporate the VRC position title in VR&E regulations would result ultimately in a long delay in the processing of Veterans’ cases and the provision of VR&E services and assistance. The VR&E program no longer hires employees under the CP title. This is the unavoidable result of the conclusion that the GS–0101 classification series is more appropriate than the GS–0180 classification series. Accordingly, the overwhelming majority of the VR&E VerDate Sep<11>2014 13:56 Nov 16, 2017 Jkt 244001 program’s national workforce providing vocational rehabilitation and employment services are VRCs, with only 10 CPs remaining in the VR&E workforce. Therefore, the program does not have enough CPs to meet workload demands. If we did not maintain the May 2, 2016, changes to our regulations while public comment is being received, and CPs were required to make decisions in every VR&E case as part of the rehabilitation process, many decisions would be delayed and processing Veteran cases would be greatly impacted. As a result, there would be a significant delay in Veterans receiving the VR&E services and assistance to which they are entitled. The VR&E program provided evaluation and counseling services to 173,599 Veterans in 2016. Although some regulations had already been updated to allow VRCs to perform some VR&E program duties, the regulations governing the majority of evaluation, counseling, and case management services were updated to allow VRCs to provide these services in the May 2, 2016, rulemaking. If we did not maintain the May 2, 2016, changes to our regulations, most of the 173,599 Veterans the VR&E program serves annually would not receive evaluation, counseling, and case management services in a timely manner because the 10 CPs the VR&E program employs could not possibly provide these services to so many Veterans. It would not be in the best interest of veterans to limit hundreds of VRCs to highly circumscribed duties while thousands of Veterans seeking employment services from VA wait for service from the 10 CPs VA still has in its workforce. Additionally, the rule clears up confusion among VR&E program participants regarding the two positions titles, VRC and CP, and the respective roles of the two positions within the VR&E program. Because of this confusion, it was necessary to update the VR&E regulations to specify that these two positions are both authorized to perform the same duties. Because this interim final rule will serve to clarify roles with regard to two position titles used within the VR&E program, and alleviate confusion related to the titles, and because it will serve to prevent delay in Veterans receiving the VR&E services and assistance to which they are entitled, the Secretary finds that it is impracticable and contrary to the public interest to delay this rule for the purpose of soliciting advance public comment or to have a delayed effective date. Accordingly, VA is issuing this rule as an interim final rule with an immediate effective date. We will PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 54297 consider and address any comments received within 60 days of the date this interim final rule is published in the Federal Register. Executive Orders 12866 and 13563 Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a ‘‘significant regulatory action’’ requiring review by the OMB, unless OMB waives such review, as ‘‘any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in this Executive Order.’’ VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action and determined they are not significant under Executive Order 12866. VA’s impact analysis can be found as a supporting document at http:// www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA’s Web site at http:// www.va.gov/orpm by following the link for ‘‘VA Regulations Published From FY 2004 Through Fiscal Year To Date.’’ Paperwork Reduction Act This rule contains no collections of information under the Paperwork Reduction Act (44 U.S.C. 3501–3521). E:\FR\FM\17NOR1.SGM 17NOR1 54298 Federal Register / Vol. 82, No. 221 / Friday, November 17, 2017 / Rules and Regulations Regulatory Flexibility Act The Secretary hereby certifies that this interim final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601–612. This rule will not directly affect any small entities; only individuals will be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. Dated; November 14, 2017. Michael Shores, Director, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs. For the reasons set out in the preamble, the regulatory amendments in the final rule published in the Federal Register on May 2, 2016, at 81 FR 26130, and incorporated in the CFR are affirmed. Only the preamble originally published on May 2, 2016, at 81 FR 26130, is hereby replaced. ■ [FR Doc. 2017–24949 Filed 11–16–17; 8:45 am] BILLING CODE 8320–01–P Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This interim final rule will have no such effect on State, local, and tribal governments, or on the private sector. Catalog of Federal Domestic Assistance List of Subjects in 38 CFR Part 21 rmajette on DSKBCKNHB2PROD with RULES Approval and Promulgation of Air Quality Implementation Plans; Maryland; 2011 Base Year Inventory for the 2008 8-Hour Ozone National Ambient Air Quality Standard for the Maryland Portion of the PhiladelphiaWilmington-Atlantic City Nonattainment Area; Withdrawal Due to the receipt of an adverse comment, the Environmental Protection Agency (EPA) is withdrawing the September 25, 2017 direct final rule that approved the 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City marginal nonattainment area for the 2008 8-hour ozone national ambient air quality standard (NAAQS). EPA stated in the direct final rule that if EPA received adverse comments by October 25, 2017, the rule would be withdrawn and not take effect. EPA subsequently received an adverse comment. EPA will address the comment received in a subsequent final action based upon the proposed action also published on September 25, 2017. EPA will not institute a second comment period on this action. DATES: As of as of November 17, 2017, the direct final rule published at 82 FR 44522 on September 25, 2017 is withdrawn. FOR FURTHER INFORMATION CONTACT: Sara Calcinore, (215) 814–2043, or by email at calcinore.sara@epa.gov. SUPPLEMENTARY INFORMATION: On May 21, 2012, the Philadelphia-WilmingtonAtlantic City area was designated as SUMMARY: The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on October 23, 2017 for publication. Administrative practice and procedure, Armed forces, Civil rights, Claims, Colleges and universities, Conflict of interests, Education, Employment, Grant programs— education, Grant programs—veterans, Health care, Loan programs—education, Loan programs—veterans, Manpower training programs, Reporting and recordkeeping requirements, Schools, Travel and transportation expenses, Veterans, Vocational education, Vocational rehabilitation. Jkt 244001 [EPA–R03–OAR–2017–0149; FRL–9970–82– Region 3] Environmental Protection Agency (EPA). ACTION: Withdrawal of direct final rule. Signing Authority 13:56 Nov 16, 2017 40 CFR Part 52 AGENCY: The Catalog of Federal Domestic Assistance number and title for the program affected by this document is 64.116, Vocational Rehabilitation for Disabled Veterans. VerDate Sep<11>2014 ENVIRONMENTAL PROTECTION AGENCY PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 marginal nonattainment for the 2008 8hour ozone NAAQS. 77 FR 30088. The Philadelphia-Wilmington-Atlantic City nonattainment area is comprised of Cecil County in Maryland, as well as counties in Delaware, New Jersey, and Pennsylvania. Under section 172(c)(3) of the Clean Air Act (CAA), Maryland is required to submit a comprehensive, accurate, and current inventory of actual emissions from all sources of the relevant pollutants, i.e. the ozone precursors nitrogen oxides (NOX) and volatile organic compounds (VOCs), in its marginal nonattainment area, i.e., the Maryland portion of the PhiladelphiaWilmington-Atlantic City nonattainment area. On January 19, 2017, the State of Maryland, through the Maryland Department of the Environment (MDE), submitted a formal revision (state implementation plan (SIP) # 16–15) to its SIP. The SIP revision consists of the 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8hour ozone NAAQS. EPA approved Maryland’s 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8hour ozone NAAQS in the direct final rule published on September 25, 2017 (82 FR 44522). In this direct final rule, we stated that if we received adverse comment by October 25, 2017, the rule would be withdrawn and not take effect. EPA subsequently received an adverse comment. On September 25, 2017 (82 FR 44522), EPA simultaneously proposed to approve Maryland’s 2011 base year inventory for the Maryland portion of the Philadelphia-WilmingtonAtlantic City nonattainment area for the 2008 8-hour ozone NAAQS. EPA will address the comment received in a subsequent final action based upon this proposed action and will not institute a second comment period on this action. As a result of the comment received, EPA is withdrawing the direct final rule approving Maryland’s 2011 base year inventory for the Maryland portion of the Philadelphia-Wilmington-Atlantic City nonattainment area for the 2008 8hour ozone NAAQS. List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. E:\FR\FM\17NOR1.SGM 17NOR1

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[Federal Register Volume 82, Number 221 (Friday, November 17, 2017)]
[Rules and Regulations]
[Pages 54295-54298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-24949]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AQ11


VA Vocational Rehabilitation and Employment Nomenclature Change 
for Position Title--Revision

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) published a final rule 
in the Federal Register on May 2, 2016, which amended a number of 
regulations in the Code of Federal Regulations (CFR) to authorize 
personnel hired by VA's Vocational Rehabilitation and Employment (VR&E) 
Service under the title ``Vocational Rehabilitation Counselor'' (VRC) 
to make the same determinations with respect to Chapter 31 services and 
benefits as personnel who had been hired under the title ``Counseling 
Psychologist'' (CP). The preamble to that final rule cited supporting 
documents inaccurately and failed to properly explain the 
qualifications for and duties of this VR&E position responsible for 
making determinations with respect to Chapter 31 services and benefits. 
This interim final rule corrects those inaccuracies, more clearly 
explains the basis for the final rule, and invites public comment on 
the changes made to VA's regulations in the May 2, 2016, final rule.

DATES: Effective Date: This interim final rule is effective November 
17, 2017. VA must receive comments on or before December 18, 2017.

ADDRESSES: Submit written comments through http://www.Regulations.gov; 
by mail or hand-delivery to: Director, Regulations Management (00REG), 
Department of Veterans Affairs, 810 Vermont Ave. NW., Room 1063B, 
Washington, DC 20420; or by fax to (202) 273-9026. (This is not a toll-
free telephone number.) Comments should indicate that they pertain to 
``RIN 2900-AQ11, VA Vocational Rehabilitation and Employment 
Nomenclature Change for Position Title--Revision.'' Copies of comments 
received will be available for public inspection in the Office of 
Regulation Policy and Management, Room 1063B, between the hours of 8:00 
a.m. and 4:30 p.m., Monday through Friday (except holidays). Please 
call (202) 461-4902 for an appointment. (This is not a toll-free 
telephone number.) In addition, comments may be viewed online through 
the Federal Docket Management System (FDMS) at http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: C.J. Riley, Senior Policy Analyst, 
Vocational Rehabilitation and Employment Service (28), Veterans 
Benefits Administration, Department of Veterans Affairs, 810 Vermont 
Avenue NW., Washington, DC 20420, Christi.Hellard@va.gov, (202) 461-
9600. (This is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION: In a final rule published in the Federal 
Register on May 2, 2016, at 81 FR 26130, VA amended a number of 
regulations in Part 21, CFR, to add the title ``VRC'' for the position 
responsible for making certain determinations with respect to Chapter 
31 services and benefits. In the preamble to the final rule, we stated 
that the revisions were non-substantive and intended to reflect the 
fact that the CP and VRC position titles are synonymous because the 
positions have the same job duties and qualifications. We also stated 
that the final rule was necessary to ensure consistency. The preamble 
referenced a performance plan that was purportedly implemented on 
December 16, 2003, that described how the job duties of and 
qualifications for a CP and VRC were the same. However, the performance 
plan was implemented on July 1, 2004, rather than on December 16, 2003, 
and does not provide that the two positions have the same 
qualifications. Nonetheless, VRCs are fully qualified to perform the 
duties specified in Chapter 31 regulations. Therefore, because 
reversing the changes published in the Federal Register on May 2, 2016, 
would be harmful to Veterans seeking vocational rehabilitation services 
for reasons discussed below, we are not reversing those changes at this 
time. However, VA is seeking public comment on those changes, as 
further explained in this document. The explanation that follows 
corrects the inaccuracies in the preamble to the final rule and more 
clearly explains the basis for the rule.
    VA's VR&E program serves an important function: To assist Veterans 
who have service-connected disabilities and barriers to employment in 
obtaining and maintaining suitable employment and achieving maximum 
independence in daily living. In 1996, VA began to allow use of Office 
of Personnel Management (OPM) classification series GS-0101, Social 
Science, to hire personnel under the title ``VRC'' to provide 
rehabilitation services. Such services include, but are not limited to, 
deciding eligibility and entitlement, developing rehabilitation plans, 
and delivering case management services. VA's VR&E program had 
previously hired personnel under the title ``CP,'' OPM classification 
series GS-0180, Psychology, to provide these types of rehabilitation 
services. Since 1996, after

[[Page 54296]]

use of the GS-0101 series was allowed, the VR&E program had hired 
personnel under either series to provide the same types of 
rehabilitation services and perform the same work. In 2015, VA's Office 
of Human Resources and Administration concluded that use of the GS-0180 
series was not as appropriate as use of the GS-0101 series for 
personnel whom VA hires to provide rehabilitation services, because the 
majority of the duties these VR&E personnel perform most closely meets 
the standards associated with the GS-0101 series. Accordingly, VA 
discontinued use of the GS-0180 series for these VR&E positions. 
Although the VR&E program began to fill vacant positions using the GS-
0101 series under the ``VRC'' title, the personnel who had been hired 
using GS-0180 series under the ``CP'' title kept their title and 
continued to perform under their existing position descriptions.
    VR&E Service had updated a few, but not all, regulations governing 
the delivery of Chapter 31 services and benefits to reflect the hiring 
of personnel under the title ``VRC'' for the position responsible for 
making certain determinations. Specifically, on April 11, 1997 (62 FR 
17706), VA issued a final rule defining VRC in 38 CFR 21.35. On March 
26, 2007 (72 FR 14041), VA issued a final rule revising 38 CFR 21.50, 
21.51, and 21.52 to describe determinations that a VRC may make during 
an initial evaluation, including the existence of an employment 
handicap and a serious employment handicap. On January 20, 2010 (75 FR 
3165), VA issued a final rule revising 38 CFR 21.42, 21.44, and 21.45 
to specify determinations that a VRC may make regarding a claimant's 
eligibility period to receive Chapter 31 services.
    In September 2014, a Veteran advocate contacted VR&E Service and 
indicated that he believed that VA had erroneously denied benefits 
because VA improperly interpreted regulations regarding the roles of 
CPs and VRCs when making specific determinations. Additionally, the 
Board of Veterans' Appeals has remanded cases to regional offices with 
instructions for a CP to make determinations that a VRC already made, 
noting that regulations require CPs to make these determinations. 
Because the VR&E program stopped hiring under the ``CP'' title, the 
VR&E program's national workforce does not have enough CPs to comply 
with these instructions. Thus, on May 2, 2016, we amended the remainder 
of our regulations regarding the roles of CPs and VRCs to ensure 
consistency with respect to position titles and to clarify that VRCs 
are authorized to make the same determinations as CPs with regard to 
Chapter 31 services and benefits.
    The shift towards staffing the VR&E positions responsible for 
making certain determinations with respect to Chapter 31 services and 
benefits under the VRC title rather than under the CP title reflects a 
more appropriate classification based on OPM standards and the type of 
work performed. This shift does not reflect a material change in the 
duties of or qualifications for the position. Regardless of the 
classification, VRCs perform the same duties as CPs perform in the VR&E 
program, and VRCs are fully qualified to perform these duties.
    Section 3118(c) of title 38, United States Code, requires VA to 
establish the necessary and appropriate qualifications for personnel 
providing evaluation and rehabilitation services under Chapter 31, and 
to take into account the qualifications established for comparable 
personnel under the Rehabilitation Act of 1973 (29 U.S.C. Chapter 16). 
Under this Act, comparable personnel are required to have a 
baccalaureate degree in a field of study reasonably related to 
vocational rehabilitation and at least one year of experience working 
with individuals with disabilities, providing direct service or 
advocacy, or having direct experience as an employer. In lieu of the 
experience, personnel may obtain a master's or doctoral degree in a 
field of study such as vocational rehabilitation counseling, law, 
social work, psychology, disability studies, or special education. See 
29 U.S.C. 721(a)(7)(B)(ii).
    VA implemented section 3118(c) by prescribing the qualifications 
for VRCs in VA's Staffing Handbook (VA Handbook 5005/6, Part II, 
Appendix F2 (June 3, 2004)). The VR&E program requires all personnel 
hired as VRCs to hold a master's degree in rehabilitation counseling, 
including an internship, or in counseling psychology, or a related 
field, including at least 30 semester hours of course work in the 
foundations of rehabilitation counseling, human growth and development, 
counseling theories and techniques, vocational assessment, career 
development, job placement, case management, or medical/psycho-social 
aspects of disability. In addition, total graduate study must have 
included or been supplemented by a supervised internship or successful 
professional experience following the completion of the master's 
degree. These requirements are comparable to the requirements 
applicable to CP positions but are more accurately aligned with the 
needs of the VR&E program, which is focused on helping Veterans obtain 
and maintain suitable employment. See the OPM Web site describing 
general qualifications for CP classification, https://www.opm.gov/policy-data-oversight/classification-qualifications/general-schedule-qualification-standards/0100/psychology-series-0180/ (last visited 
August 10, 2017). Requiring VRCs to have these qualifications puts them 
in a similar position to CPs, who are required to have comparable 
qualifications. With comparable qualifications and experience in the 
closely related fields of counseling psychology and/or rehabilitation 
counseling, both VRCs and CPs have the same skills and capabilities 
necessary to perform the duties required for this program, such as 
counseling, rehabilitation, and employment assistance.
    Additionally, as indicated in the most recent VRC position 
description released with VR&E Letter 28-14-13 on February 20, 2014, 
VRCs must possess knowledge of psychological, rehabilitation, and 
counseling theory and principle, as well as special knowledge of 
rehabilitation counseling skills, techniques, and resources needed to 
work with Veterans with multiple serious disabilities, Veterans who are 
largely confined to their homes due to disabilities, Veterans who have 
serious mental disabilities, and Veterans who have problems adjusting 
to social and occupational demands. VRCs must also have knowledge of 
the principles and procedures of psychological and vocational testing 
and research statistics used to assess a Veteran's interests, 
aptitudes, abilities, and personality characteristics. In addition, 
VRCs must know the requirements for independent living, and understand 
the limitations of, and services required by, individuals with severe 
disabilities. Finally, VRCs must know career development theory and job 
placement, and understand current labor market conditions and 
occupational trends and how to improve employability using the 
information obtained from transferable work-skills analyses.
    Staffing the program with VRCs is a valid programmatic choice 
because, equipped with such knowledge, VRCs can capably and competently 
perform the required counseling, rehabilitation, and employment 
assistance tasks. For example, VRCs have knowledge of psychological, 
rehabilitation, and counseling theory and principle, and possess 
rehabilitation counseling skills and techniques to work with 
emotionally and physically-disabled individuals and prepare them for 
suitable employment. They understand the requirements for independent 
living and the services individuals with severe

[[Page 54297]]

disabilities require, and they possess the skills and qualifications to 
effectively perform initial evaluations and make accurate eligibility 
determinations. Additionally, they know the principles and procedures 
of psychological and vocational testing and research statistics to 
competently assess a Veteran's interests, aptitudes, abilities, and 
personality characteristics to provide the most appropriate 
rehabilitation planning services. Finally, they have a comprehensive 
understanding of current labor market conditions and occupational 
trends to identify the appropriate employment options for each 
individual they counsel. Requiring VRCs to have such knowledge ensures 
that VRCs have the capability to assist Veterans with service-connected 
disabilities in achieving maximum independence in daily living and 
obtaining and maintaining suitable employment.
    Because VRCs are fully qualified to perform the duties of this VR&E 
position, and because the VR&E program's national workforce does not 
have enough CPs to fulfill all the required duties of this position, we 
amended our regulations to authorize VRCs to make the same 
determinations as CPs with regard to Chapter 31 services and benefits. 
Accordingly, we adopt, without change, the rule published in the 
Federal Register on May 2, 2016.

Administrative Procedure Act

    In accordance with 5 U.S.C. 553(b)(B) and (d)(3), the Secretary 
finds that there is good cause to dispense with the opportunity for 
prior notice and comment and good cause to publish this rule with an 
immediate effective date. The Secretary finds that it is impracticable 
and contrary to the public interest to delay this rule for the purpose 
of soliciting prior public comment or to have a delayed effective date, 
or to reverse the changes made on May 2, 2016, while public comment is 
being received. The Secretary is issuing this rule to clear up 
confusion among Veterans and prevent a detrimental impact with regard 
to the VR&E program. Failure to incorporate the VRC position title in 
VR&E regulations would result ultimately in a long delay in the 
processing of Veterans' cases and the provision of VR&E services and 
assistance.
    The VR&E program no longer hires employees under the CP title. This 
is the unavoidable result of the conclusion that the GS-0101 
classification series is more appropriate than the GS-0180 
classification series. Accordingly, the overwhelming majority of the 
VR&E program's national workforce providing vocational rehabilitation 
and employment services are VRCs, with only 10 CPs remaining in the 
VR&E workforce. Therefore, the program does not have enough CPs to meet 
workload demands. If we did not maintain the May 2, 2016, changes to 
our regulations while public comment is being received, and CPs were 
required to make decisions in every VR&E case as part of the 
rehabilitation process, many decisions would be delayed and processing 
Veteran cases would be greatly impacted. As a result, there would be a 
significant delay in Veterans receiving the VR&E services and 
assistance to which they are entitled.
    The VR&E program provided evaluation and counseling services to 
173,599 Veterans in 2016. Although some regulations had already been 
updated to allow VRCs to perform some VR&E program duties, the 
regulations governing the majority of evaluation, counseling, and case 
management services were updated to allow VRCs to provide these 
services in the May 2, 2016, rulemaking. If we did not maintain the May 
2, 2016, changes to our regulations, most of the 173,599 Veterans the 
VR&E program serves annually would not receive evaluation, counseling, 
and case management services in a timely manner because the 10 CPs the 
VR&E program employs could not possibly provide these services to so 
many Veterans. It would not be in the best interest of veterans to 
limit hundreds of VRCs to highly circumscribed duties while thousands 
of Veterans seeking employment services from VA wait for service from 
the 10 CPs VA still has in its workforce.
    Additionally, the rule clears up confusion among VR&E program 
participants regarding the two positions titles, VRC and CP, and the 
respective roles of the two positions within the VR&E program. Because 
of this confusion, it was necessary to update the VR&E regulations to 
specify that these two positions are both authorized to perform the 
same duties.
    Because this interim final rule will serve to clarify roles with 
regard to two position titles used within the VR&E program, and 
alleviate confusion related to the titles, and because it will serve to 
prevent delay in Veterans receiving the VR&E services and assistance to 
which they are entitled, the Secretary finds that it is impracticable 
and contrary to the public interest to delay this rule for the purpose 
of soliciting advance public comment or to have a delayed effective 
date. Accordingly, VA is issuing this rule as an interim final rule 
with an immediate effective date. We will consider and address any 
comments received within 60 days of the date this interim final rule is 
published in the Federal Register.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action'' requiring review by the OMB, unless 
OMB waives such review, as ``any regulatory action that is likely to 
result in a rule that may: (1) Have an annual effect on the economy of 
$100 million or more or adversely affect in a material way the economy, 
a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.''
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this regulatory action and determined they are 
not significant under Executive Order 12866. VA's impact analysis can 
be found as a supporting document at http://www.regulations.gov, 
usually within 48 hours after the rulemaking document is published. 
Additionally, a copy of the rulemaking and its impact analysis are 
available on VA's Web site at http://www.va.gov/orpm by following the 
link for ``VA Regulations Published From FY 2004 Through Fiscal Year To 
Date.''

Paperwork Reduction Act

    This rule contains no collections of information under the 
Paperwork Reduction Act (44 U.S.C. 3501-3521).

[[Page 54298]]

Regulatory Flexibility Act

    The Secretary hereby certifies that this interim final rule will 
not have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. This rule will not directly affect any small entities; 
only individuals will be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), this rule is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This interim final rule will have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number and title for the 
program affected by this document is 64.116, Vocational Rehabilitation 
for Disabled Veterans.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Gina S. 
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, 
approved this document on October 23, 2017 for publication.

List of Subjects in 38 CFR Part 21

    Administrative practice and procedure, Armed forces, Civil rights, 
Claims, Colleges and universities, Conflict of interests, Education, 
Employment, Grant programs--education, Grant programs--veterans, Health 
care, Loan programs--education, Loan programs--veterans, Manpower 
training programs, Reporting and recordkeeping requirements, Schools, 
Travel and transportation expenses, Veterans, Vocational education, 
Vocational rehabilitation.

    Dated; November 14, 2017.
Michael Shores,
Director, Office of Regulation Policy & Management, Office of the 
Secretary, Department of Veterans Affairs.

0
For the reasons set out in the preamble, the regulatory amendments in 
the final rule published in the Federal Register on May 2, 2016, at 81 
FR 26130, and incorporated in the CFR are affirmed. Only the preamble 
originally published on May 2, 2016, at 81 FR 26130, is hereby 
replaced.

[FR Doc. 2017-24949 Filed 11-16-17; 8:45 am]
 BILLING CODE 8320-01-P