[Federal Register Volume 62, Number 70 (Friday, April 11, 1997)]
[Rules and Regulations]
[Pages 17706-17710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9022]


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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]
BILLING CODE 8320-01-P