Vocational Rehabilitation; Miscellaneous Changes

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AI29

Vocational Rehabilitation; Miscellaneous Changes

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs

vocational rehabilitation regulations. Changes are made to reflect

current organizational structure; to decentralize decisionmaking; to

update authority citations; to reflect statutory requirements

concerning the limit on the amount of money that VA can pay in advance

on a work-study contract; and to clarify provisions.

DATES: This final rule is effective April 11, 1997. However, the

restatement of statute contained in this final rule will be applied

retroactively from the effective date of the statutory provision.

FOR FURTHER INFORMATION CONTACT: Jeff Goetz, Chief of Operations,

Vocational Rehabilitation and Counseling Service (28), Department of

Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420; (202)

273-7425.

SUPPLEMENTARY INFORMATION: This final rule consists of delegations of

authority and nonsubstantive changes and, therefore, is not subject to

the notice and comment and effective date provisions of 5 U.S.C. 553.

As noted in the SUMMARY portion of this document, a change is made

to reflect statutory requirements concerning the limit on the amount of

money that VA can pay in advance on

[[Page 17707]]

a work-study contract. Formerly, that limit was 40 percent of the total

amount payable under the contract. Now the limit is the lesser of 40

percent of the total amount payable under the contract or 50 times the

applicable minimum wage in effect on the date the contract is signed.

This amendment to the regulations, set forth in 38 CFR 21.272(e), will

be applied from October 29, 1992, the effective date of the statutory

change (Pub. L. 102-568).

The Secretary of Veterans Affairs hereby certifies that this 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 merely consists of delegations of authority

and nonsubstantive changes. Pursuant to 5 U.S.C. 605(b), this final

rule is exempt from the initial and final regulatory flexibility

analyses requirements of sections 603 and 604.

(The Catalog of Federal Domestic Assistance number for the programs

affected by this rule is 64.116)

List of Subjects in 38 CFR Part 21

Administrative practice and procedure, Armed forces, Civil rights,

Claims, Colleges and universities, Conflict of interests, Defense

Department, Education, Employment, Grant programs-education, Grant

programs-veterans, Health care, Loan programs-education, Loan programs-

veterans, Personnel training programs, Reporting and recordkeeping

requirements, Schools, Travel and transportation expenses, Veterans,

Vocational education, Vocational rehabilitation.

Approved: March 26, 1997.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR part 21 is amended

as set forth below:

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

Subpart A--Vocational Rehabilitation Under 38 U.S.C. Chapter 31

1. The authority citation for part 21, subpart A, is revised to

read as follows:

Authority: 38 U.S.C. 501(a), 3100-3121, unless otherwise noted.

2. Section 21.21 is amended by revising the authority citation for

paragraph (b) to read as follows:

Sec. 21.21 Election of benefits under education programs administered

by the Department of Veterans Affairs.

* * * * *

(b) * * *

(Authority: 38 U.S.C. 3695(b))

3. Section 21.30 is amended by revising the authority citation to

read as follows:

Sec. 21.30 Claims.

* * * * *

(Authority: 38 U.S.C. 501(a), 3102, 3117, 5101(a))

4. Section 21.31 is amended by revising the authority citation to

read as follows:

Sec. 21.31 Informal claim.

* * * * *

(Authority: 38 U.S.C. 501(a), 5101(a), 5103(a))

5. Section 21.32 is amended by revising the authority citation for

paragraph (c) to read as follows:

Sec. 21.32 Time limit.

* * * * *

(c) * * *

(Authority: 38 U.S.C. 5101, 5113)

6. In Sec. 21.35, paragraphs (k)(1) and (k)(2) are amended by

removing ``Education Service'' and adding, in its place, ``Counseling

Division''; and paragraph (k)(2) is amended by removing ``Vocational

Rehabilitation Specialist''; and adding, in its place, ``vocational

rehabilitation specialist'; and paragraph (k)(7) is added and the

authority citations for paragraphs (a) and (h) are revised, to read as

follows:

Sec. 21.35 Definitions.

(a) * * *

(Authority: 38 U.S.C. 3101(1), 3102)

* * * * *

(h) * * *

(Authority: 38 U.S.C. 3101(8))

* * * * *

(k) * * *

(7) Vocational rehabilitation counselor. Unless otherwise stated,

the term vocational rehabilitation counselor refers to a vocational

rehabilitation counselor in the Vocational Rehabilitation and

Counseling Division in the Veterans Benefits Administration, Department

of Veterans Affairs.

(Authority: 38 U.S.C. 3118(c))

7. Section 21.41 is amended by revising the authority citation to

read as follows:

Sec. 21.41 Basic period of eligibility.

* * * * *

(Authority: 38 U.S.C. 3103)

8. Section 21.42 is amended by revising the authority citation for

paragraph (b) to read as follows:

Sec. 21.42 Basic period of eligibility deferred.

* * * * *

(b) * * *

(Authority: 38 U.S.C. 3103(b)(2))

* * * * *

9. Section 21.50 is amended by revising the authority citation for

paragraph (b) to read as follows:

Sec. 21.50 Initial evaluation.

* * * * *

(b) * * *

(Authority: 38 U.S.C. 523, 3106(a), (d), 3116)

* * * * *

10. In Sec. 21.57, paragraph (c)(1) is amended by removing ``of

an'' and adding, in its place, ``or an'' and by adding an authority

citation to read as follows:

Sec. 21.57 Extended evaluation.

* * * * *

(c) * * *

(1) * * *

(Authority: 38 U.S.C. 3106(d))

* * * * *

11. Section 21.72 is amended by revising the authority citations

for paragraphs (a) and (c) to read as follows:

Sec. 21.72 Rehabilitation to the point of employability.

(a) * * *

(Authority: 38 U.S.C. 3101(5), 3104)

* * * * *

(c) * * *

(Authority: 38 U.S.C. 3695(b))

* * * * *

12. In Sec. 21.74, paragraph (c)(2) is amended by adding ``(VR&C)''

before ``Officer''; paragraph (c)(3) is amended by removing ``Director,

Vocational Rehabilitation and Education Service'' and adding, in its

place, ``VR&C Officer''; and the authority citation for paragraph (a)

is revised and an authority citation for paragraph (b) is added, to

read as follows:

Sec. 21.74 Extended evaluation.

(a) * * *

(Authority: 38 U.S.C. 3105(a), 3106(a))

(b) * * *

(Authority: 38 U.S.C. 3105(a))

* * * * *

13. Section 21.80 is amended by revising the authority citation for

paragraph (d) to read as follows:

Sec. 21.80 Requirement for a rehabilitation plan.

* * * * *

(d) * * *

(Authority: 38 U.S.C. 523, 7722(c))

14. Section 21.86 is amended by revising the authority citations

for paragraphs (a) and (b) to read as follows:

[[Page 17708]]

Sec. 21.86 Individualized extended evaluation plan.

(a) * * *

(Authority: 38 U.S.C. 3106(a), 3107(a))

(b) * * *

(Authority: 38 U.S.C. 3106(a), 3107(a))

15. Section 21.90 is amended by revising the section heading and

the authority citation for paragraph (a) to read as follows:

Sec. 21.90 Individualized independent living plan.

(a) * * *

(Authority: 38 U.S.C. 3109, 3120)

* * * * *

16. Section 21.94 is amended by revising the authority citation for

paragraph (a) to read as follows:

Sec. 21.94 Changing the plan.

(a) * * *

(Authority: 38 U.S.C. 3107(b))

* * * * *

Sec. 21.98 [Amended]

17. In Sec. 21.98, the heading of paragraph (c) is amended by

removing ``Vocational Rehabilitation and Education Service'' and

adding, in its place, ``Director, Vocational Rehabilitation and

Counseling Service''; and paragraph (c) in the first sentence and

paragraph (d) are amended by removing ``Vocational Rehabilitation and

Education Service'' and adding, in its place, ``VR&C'' and by removing

``Vocational Rehabilitation and Counseling'' and adding, in its place,

``VR&C''.

18. In Sec. 21.100, paragraph (a) introductory text is amended by

removing ``VR&E (Vocational Rehabilitation and Education)'' and adding,

in its place, ``Vocational Rehabilitation and Counseling (VR&C)'';

paragraph (d)(1) is amended by removing ``Education'' and adding, in

its place, ``Counseling''; paragraphs (d)(1), (d)(2) introductory text,

and (d)(3)(ii) are amended by removing ``VR&E'' and adding, in its

place, ``VR&C''; paragraph (d)(4) is amended by removing ``VR&E'' and

adding, in its place, ``a counseling psychologist in the VR&C

Division''; and the authority citations for paragraphs (b), (d), and

(e) are revised to read as follows:

Sec. 21.100 Counseling.

* * * * *

(b) * * *

(Authority: 38 U.S.C. 3104(a)(2))

* * * * *

(d) * * *

(Authority: 38 U.S.C. 3118(c))

(e) * * *

(Authority: 38 U.S.C. 101(20))

19. Section 21.120 is amended by revising the authority citation

for paragraph (c) to read as follows:

Sec. 21.120 Educational and vocational training services.

* * * * *

(c) * * *

(Authority: 38 U.S.C. 3104(a)(7), 3115(a))

20. Section 21.122 is amended by revising the authority citation

for paragraph (a) to read as follows:

Sec. 21.122 School course.

(a) * * *

(Authority: 38 U.S.C. 501(a), 3104)

* * * * *

21. Section 21.123 is amended by removing the authority citation

for paragraph (a) and by revising the authority citation at the end of

the section to read as follows:

Sec. 21.123 On-job course.

* * * * *

(Authority: 38 U.S.C. 501(a), 3104)

22. Section 21.134 is amended by revising the authority citation to

read as follows:

Sec. 21.134 Limitation on flight training.

* * * * *

(Authority: 38 U.S.C. 3680A(b))

23. Section 21.140 is amended by revising the authority citation

for paragraph (d) to read as follows:

Sec. 21.140 Evaluation and improvement of rehabilitation potential.

* * * * *

(d) * * *

(Authority: 38 U.S.C. 3104(a)(1), (6), (9), (10), (15))

24. Section 21.148 is amended by revising the authority citation

for paragraph (d) to read as follows:

Sec. 21.148 Tutorial assistance.

* * * * *

(d) * * *

(Authority: 38 U.S.C. 3108(f))

Sec. 21.155 [Amended]

25. In Sec. 21.155, paragraph (d)(1) is amended by removing

``VHS&RA (Veterans Health Services and Research Administration)'' and

adding, in its place, ``Veterans Health Administration (VHA)''; and

paragraph (d)(2) is amended by removing ``VHS&RA'' and adding, in its

place, ``VHA''.

26. Section 21.160 is amended by revising the authority citations

for paragraphs (a), (c), (d), and (e) to read as follows:

Sec. 21.160 Independent living services.

(a) * * *

(Authority: 38 U.S.C. 3104(a)(15), 3109, 3120)

* * * * *

(c) * * *

(Authority: 38 U.S.C. 3104(a)(15), 3109, 3120)

(d) * * *

(Authority: 38 U.S.C. 3104(a)(15), 3109, 3120)

(e) * * *

(Authority: 38 U.S.C. 3104(a)(15), 3109, 3115, 3120)

27. In Sec. 21.162, paragraph (b)(1) is amended by adding ``and''

at the end of the paragraph; paragraph (b)(2) is amended by removing

``homes:'' and adding, in its place, ``homes.''; paragraphs (b)(3) and

(b)(4) are removed; and paragraph (a)(4), the authority citation for

paragraph (a), paragraph (b) heading and introductory text, and the

authority citation for paragraph (b) are revised to read as follows:

Sec. 21.162 Participation in a program of independent living services.

* * * * *

(a) * * *

(4) The VR&C Officer concurs in the IILP.

(Authority: 38 U.S.C. 3104(a)(15), 3109, 3120)

(b) Considerations for the VR&C Officer. The VR&C Officer will

consider the following factors in administering programs providing

independent living services:

* * * * *

(Authority: 38 U.S.C. 3120(c))

28. Section 21.180 is amended by revising the last sentence in

paragraph (c) to read as follows:

Sec. 21.180 Case status system.

* * * * *

(c) Case manager. * * * When securing medical care, treatment, and

other related services, the VR&C case manager will coordinate with

Veterans Health Administration (VHA) staff members who have case

management responsibility for the veteran.

* * * * *

Sec. 21.222 [Amended]

29. In Sec. 21.222, paragraph (c)(3) is amended by removing

``VR&E'' and adding, in its place, ``VR&C''.

30. Section 21.252 is amended by revising paragraph (a)(2)(iii) and

the authority citation for paragraph (a) to read as follows:

Sec. 21.252 Job development and placement services.

(a) * * *

(2) * * *

[[Page 17709]]

(iii) The State Employment Services and the Veterans' Employment

and Training Service of the United States Department of Labor;

* * * * *

(Authority: 38 U.S.C. 3117(a)(2))

* * * * *

31. In Sec. 21.254, paragraph (c) introductory text is amended by

removing ``met;'' and adding, in its place, ``met:''; and the authority

citation for paragraph (b) is revised to read as follows:

Sec. 21.254 Supportive services.

* * * * *

(b) * * *

(Authority: 38 U.S.C. 3104(a), 3108(f))

* * * * *

32. In Sec. 21.256, paragraph (d) is amended by removing

``Director, VR&E Service,'' and adding, in its place, ``VR&C Officer'';

and by revising the authority citation following paragraph (e) to read

as follows:

Sec. 21.256 Incentives for employers.

* * * * *

(Authority: 38 U.S.C. 3108(f), 3116(b))

* * * * *

33. In Sec. 21.260, the section heading is revised and the

authority citations for paragraphs (a) and (b) are revised to read as

follows:

Sec. 21.260 Subsistence allowance.

(a) * * *

(Authority: 38 U.S.C. 3108(a) and (f))

(b) * * *

(Authority: 38 U.S.C. 3108)

* * * * *

34. Section 21.264 is amended by revising the section heading and

the authority citations for paragraphs (a), (b), (c), and (d) to read

as follows:

Sec. 21.264 Election of payment at the 38 U.S.C. chapter 30

educational assistance rate.

(a) * * *

(Authority: 38 U.S.C. 3015, 3022, 3108(f))

(b) * * *

(Authority: 38 U.S.C. 3015, 3022, 3108(f))

(c) * * *

(Authority: 38 U.S.C. 3015, 3022, 3108(f))

(d) * * *

(Authority: 38 U.S.C. 3015, 3022, 3108(f))

35. Section 21.268 is amended by revising the authority citation

for paragraph (b) to read as follows:

Sec. 21.268 Employment adjustment allowance.

* * * * *

(b) * * *

(Authority: 38 U.S.C. 3108(f))

* * * * *

36. In Sec. 21.272, paragraph (e), the authority citations for

paragraphs (a), (b), and (f), and the authority citation following

paragraph (d) are revised to read as follows:

Sec. 21.272 Veteran-student services.

(a) * * *

(Authority: 38 U.S.C. 3104(a)(4), 3485)

(b) * * *

(Authority: 38 U.S.C. 3104(a)(4), 3108(f), 3485)

* * * * *

(Authority: 38 U.S.C. 3104(a)(4), 3485)

(e) Payment in advance. VA will pay in advance an amount equal to

40 percent of the total amount payable under the contract (but not more

than an amount equal to 50 times the applicable hourly minimum wage).

(Authority: 38 U.S.C. 3104(a)(4), 3485)

(f) * * *

(Authority: 38 U.S.C. 3104(a)(4), 3485)

* * * * *

37. Section 21.276 is amended by revising the authority citation

for paragraph (g) to read as follows:

Sec. 21.276 Incarcerated veterans.

* * * * *

(g) * * *

(Authority: 38 U.S.C. 3108(f), 3680(a))

* * * * *

38. In Sec. 21.292, paragraph (d) is amended by removing ``VR&E''

and adding, in its place, ``VR&C'; and paragraph (e) is revised to read

as follows:

Sec. 21.292 Course approvals.

* * * * *

(e) Course disapproved. The VR&C Officer may approve for 38 U.S.C.

chapter 31 use courses that one of the agencies in paragraph (c) of

this section has disapproved.

(Authority: 38 U.S.C. 3115)

39. In Sec. 21.294, paragraph (c) is amended by removing ``VHS&RA''

and adding, in its place, ``VHA''; and paragraphs (b)(2)(i), (b)(3)(i),

and (b)(3)(ii) and the authority citations for paragraphs (b) and (c)

are revised to read as follows:

Sec. 21.294 Selecting the training or rehabilitation facility.

* * * * *

(b) * * *

(2) * * *

(i) Veterans Health Administration (VHA) facilities that provide

independent living services;

* * * * *

(3) * * *

(i) Are not available through public or nonprofit agencies or VHA;

or

(ii) Cannot be obtained cost-effectively from public or nonprofit

agencies or VHA.

* * * * *

(Authority: 38 U.S.C. 3115, 3120)

(c) * * *

(Authority: 38 U.S.C. 3115)

* * * * *

40. Section 21.320 is amended by revising the authority citation

following paragraph (b) and the authority citation for paragraph (d) to

read as follows:

Sec. 21.320 Awards for subsistence allowance and authorization of

rehabilitation services.

* * * * *

(Authority: 38 U.S.C. 3108 (a) and (f))

* * * * *

(d) * * *

(Authority: 38 U.S.C. 3108 (a) and (f))

41. Section 21.324 is amended by revising the authority citation

for paragraph (i) to read as follows:

Sec. 21.324 Reduction or termination dates of subsistence allowance.

* * * * *

(i) * * *

(Authority: 38 U.S.C. 3680(a))

* * * * *

42. Section 21.330 is amended by revising the authority citation

for paragraph (a) to read as follows:

Sec. 21.330 Apportionment.

(a) * * *

(Authority: 38 U.S.C. 5307(c))

* * * * *

43. Section 21.334 is amended by revising the section heading and

the authority citations for paragraphs (b), (c), and (d) to read as

follows:

Sec. 21.334 Election of payment at the chapter 30 rate.

* * * * *

(b) * * *

(Authority: 38 U.S.C. 3108(f))

(c) * * *

(Authority: 38 U.S.C. 3108(f))

(d) * * *

(Authority: 38 U.S.C. 3108(f))

* * * * *

44. Section 21.342 is amended by revising the authority citation to

read as follows:

Sec. 21.342 Leave accounting policy.

* * * * *

(Authority: 38 U.S.C. 3110)

[[Page 17710]]

45. Section 21.344 is amended by revising the authority citation to

read as follows:

Sec. 21.344 Facility offering training or rehabilitation services.

* * * * *

(Authority: 38 U.S.C. 3110)

46. Section 21.390 is amended by revising paragraph (c) to read as

follows:

Sec. 21.390 Rehabilitation research and special projects.

* * * * *

(c) Research by Vocational Rehabilitation and Counseling (VR&C)

staff members. VA will encourage research by VR&C staff members. This

research will address problems affecting service delivery, initiation

and continuation in rehabilitation programs, and other areas directly

affecting the quality of VR&C services to veterans.

(Authority: 38 U.S.C. 3119(a))

* * * * *

47. Section 21.410 is revised to read as follows:

Sec. 21.410 Delegation of authority.

The Secretary delegates authority to the Under Secretary for

Benefits to make findings and decisions under 38 U.S.C. chapter 31 and

regulations, precedents, and instructions that affect vocational

rehabilitation services for disabled veterans. The Under Secretary for

Benefits may further delegate this authority to supervisory and non-

supervisory Vocational Rehabilitation and Counseling staff members.

(Authority: 38 U.S.C. 512(a))

48. In Sec. 21.430, paragraph (c) is amended by revising the

heading and introductory text; and the authority citation is revised to

read as follows:

Sec. 21.430 Accountability for authorization and payment of training

and rehabilitation services.

* * * * *

(c) Vocational Rehabilitation and Counseling (VR&C) Officer's

review of program costs. The VR&C Officer will review the program costs

for the services in paragraphs (c)(1) through (c)(3) of this section if

the case manager's program cost estimate for a calendar year exceeds

$25,000. The VR&C Officer may not delegate this responsibility. The

case manager will neither sign a rehabilitation plan nor authorize

expenditures before the VR&C Officer approves the program costs. The

services subject to this review are:

* * * * *

(Authority: 38 U.S.C. 3115(b)(4))

[FR Doc. 97-9022 Filed 4-10-97; 8:45 am]

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