[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.

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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, [email protected], (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