[Federal Register: June 5, 2000 (Volume 65, Number 108)]
[Rules and Regulations]
[Page 35791-35801]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05jn00-14]
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Part IV
Department of Education
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34 CFR Part 361
The State Vocational Rehabilitation Services Program; Final Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 361
RIN 1820-AB14
The State Vocational Rehabilitation Services Program
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the regulations governing The State
Vocational Rehabilitation Services Program (VR program). These
amendments are needed to implement changes in the Rehabilitation Act of
1973, as amended (Act). These changes establish evaluation standards
and performance indicators for the VR program.
DATES: These regulations are effective July 5, 2000.
FOR FURTHER INFORMATION CONTACT: Beverlee Stafford, Policy, Planning
and Evaluation Service, Rehabilitation Services Administration, U.S.
Department of Education, 400 Maryland Avenue, SW., room 3014 Mary E.
Switzer Building, Washington, DC 20202-2550. Telephone: (202) 205-8831.
Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to Katie Mincey, Director of the Alternate Format
Center, at (202) 205-8113.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to
reach either Beverlee Stafford or Katie Mincey.
SUPPLEMENTARY INFORMATION: The VR program is authorized by Title I of
the Act (29 U.S.C. 701-751). This program provides support to assist
States in operating a comprehensive, coordinated, effective, efficient,
and accountable program to assess, plan, develop, and provide
vocational rehabilitation (VR) services to individuals with
disabilities to enable them to prepare for and engage in gainful
employment, consistent with their strengths, resources, priorities,
concerns, abilities, capabilities, and informed choice. Section 106 of
the Act requires that the Secretary establish and publish evaluation
standards and performance indicators for the program. These final
regulations implement that requirement.
Pursuant to section 106(a)(3) of the Act and Executive Order 12866,
which encourages Federal agencies to facilitate meaningful
participation in the regulatory development process, the Secretary,
through the Rehabilitation Services Administration (RSA) of the U.S.
Department of Education (Department)--(1) consulted with the
rehabilitation community during the development of the evaluation
standards and performance indicators; (2) published a ``notice of
intent to regulate'' to solicit comments on the development of the
proposed evaluation standards and performance indicators; (3) held a
public meeting to discuss several issues related to the development of
proposed evaluation standards and performance indicators; (4) discussed
the development of the proposed indicators on numerous occasions with
various members of the rehabilitation community; and (5) published for
review and comment a notice of proposed rulemaking (NPRM) for this
program in the Federal Register, 63 FR 55292 (October 14, 1998). In
response to the NPRM, we received 62 comments, each of which we
reviewed and considered in the development of the final regulations.
These final regulations reflect the input received through these
efforts.
These final regulations amend 34 CFR part 361, which contains the
VR program regulations, by adding a Subpart E entitled ``Evaluation
Standards and Performance Indicators.'' These final regulations
implement certain requirements of the Rehabilitation Act Amendments of
1992 (1992 Amendments), Pub. L. 102-569 (October 29, 1992), and the
Rehabilitation Act Amendments of 1998 (1998 Amendments), which are in
Title IV of the Workforce Investment Act of 1998 (WIA), Pub. L. 105-220
(August 7, 1998). The 1992 Amendments added section 106 to part A of
Title I of the Act, which requires the Secretary to establish and
publish evaluation standards and performance indicators. The 1998
Amendments modified section 106 of the Act to require that, to the
maximum extent practicable, the VR standards and indicators be
consistent with the core indicators of performance (Core Indicators)
established under section 136(b) of WIA.
Section 106 of the Act also includes, among other things, the
following requirements: (1) The Secretary establishes and publishes in
the Federal Register evaluation standards and performance indicators
for the VR program. (2) The evaluation standards and performance
indicators must include outcome and related measures of program
performance that facilitate the accomplishment of the purpose and
policy of the VR program. (3) The Secretary develops the evaluation
standards and performance indicators with input from State VR agencies
(or the designated State unit), related professional and consumer
organizations, recipients of VR services, and other interested parties.
(4) Each designated State unit (DSU) must report to the Secretary after
the end of each fiscal year the extent to which it is in compliance
with the evaluation standards and performance indicators. (5) The
Secretary provides technical assistance to any DSU that performs below
the established evaluation standards and develops jointly with the DSU
a program improvement plan outlining the specific actions to be taken
by the DSU to improve program performance. (6) If a DSU that performs
below the established evaluation standards fails to enter into a
program improvement plan, or is not complying substantially with the
terms and conditions of such a program improvement plan, the Secretary
reduces or makes no further payments under the VR program to the DSU
until the DSU has entered into an approved program improvement plan or
is complying substantially with the terms and conditions of such a
program improvement plan. (7) The Secretary provides an annual report
to Congress containing an analysis of program performance, including
relative State performance, based on the evaluation standards and
performance indicators.
The NPRM contained two evaluation standards, each of which had at
least two or more implementing performance indicators by which to
measure DSU performance. The NPRM also contained specific proposed
performance levels for each indicator that identified the minimum level
of performance that a DSU would need to achieve to pass a given
indicator. Under the NPRM, a DSU would have had to pass a minimum of
five of the seven proposed performance indicators, including at least
two of the three proposed primary indicators, for Evaluation Standard 1
and both proposed performance indicators for Evaluation Standard 2.
These final regulations contain a limited number of significant
changes to what we proposed in the NPRM. These changes are based on
both public comment and interdepartmental review. A detailed
description of these changes is contained in the ``Analysis of Comments
and Changes'' section. In addition, we reviewed and revised the final
regulations in accordance with the Department's ``Principles for
[[Page 35793]]
Regulating,'' which were developed as part of the Administration's
regulatory reinvention initiative under the ``National Performance
Review II.'' The principles are designed to ensure that we regulate in
the most flexible, most equitable, and least burdensome way possible.
Analysis of Comments and Changes
In response to our invitation in the NPRM, we received 62 comments
on the proposed regulations. Our analysis of the comments and of the
changes in the regulations since publication of the NPRM follows.
We group major issues according to subject under appropriate
sections of the regulations. We discuss other substantive issues under
the sections of the regulations to which they pertain. Generally, we do
not address technical and other minor changes--and suggested changes
the law does not authorize the Secretary to make. Please note also
that, in the NPRM, we requested comments on several issues regarding
performance standards and indicators that are currently under
consideration for regulatory development, including draft proposed
Evaluation Standard 3 (Consumer Satisfaction), draft proposed
Evaluation Standard 4 (Retention of Employment and Earnings), and draft
proposed Evaluation Standard 5 (Adequate Use of Resources). We received
many comments on these draft proposed evaluation standards and will
give each comment serious consideration during the development of
additional standards and indicators. We thank all individuals and
organizations for their input.
Section 361.81 Applicable Definitions
Definition of ``Full-time Employment''
Comments: Five commenters stated that requiring a minimum of 35
hours per week for a position to be considered ``full time'' is not
realistic and recommended that the number of hours be lowered to 30 or
32 hours as a more accurate reflection of existing workplace
conditions. Other commenters objected to any minimum for the number of
hours worked per week required to constitute ``full-time employment''
and stated that the determination of whether the work is ``full time''
should be consistent with the implementation of the individual's
Individualized Plan for Employment (IPE).
Discussion: The proposed definition of ``full-time employment''
applied only to proposed Performance Indicator 1.7, which would have
measured the percentage of individuals in ``full-time,'' competitive
employment who would have been eligible to enroll in a medical
insurance program. Because we have deleted proposed Performance
Indicator 1.7 (for reasons discussed later in this preamble), a
definition of the term ``full-time employment'' is no longer necessary.
Changes: We have deleted the proposed definition.
Definition of ``Individuals From a Minority Background''
Comments: None.
Discussion: We have adopted the designations mandated by the Office
of Management and Budget (OMB) for reporting and recording race and
ethnicity, as mandated in the ``Revisions to the Standards for the
Classification of Federal Data on Race and Ethnicity'' (Revisions), 62
FR 58, 781-85, and 790 (October 30, 1997). These designations are
mandatory for all new and revised recordkeeping or reporting
requirements that include racial or ethnic information after the
publication date of the ``Revisions.''
Changes: Because OMB designates ``individuals from a minority
background'' differently from the definition included in the NPRM, we
have changed the proposed regulatory definition to conform to OMB's
designation.
Definition of ``Non-minority Individual''
Comments: Eight commenters disagreed with the proposed definition
of ``non-minority individual'' and recommended that the term be defined
as those individuals whose ethnicity or race is reported as White who
are non-Hispanic.
Discussion: As we previously discussed, we have adopted the race
and ethnicity designations mandated by OMB for recording and reporting
race and ethnicity. The NPRM proposed to identify as ``non-minority
individuals'' those individuals who designate themselves as both non-
Hispanic and White using the OMB-mandated designations.
The ``Revisions'' mentioned previously-- (a) require the data
collector to request that the individual identify himself or herself;
and (b) explicitly allow the individual to identify as many race or
ethnicity designations as the individual believes apply. The data
collector is to accept the individual's designation or designations and
may not make any independent judgment regarding the individual's
choice.
Changes: We have revised the definition of ``non-minority
individuals'' to be consistent with OMB's definition.
Definition of ``Service Rate''
Comments: Two commenters requested clarification of this term.
These commenters stated that it was not clear whether the computation
would be based on the rate services are accessed or the rate employment
outcomes are achieved.
Discussion: The term ``service rate'' reflects the rate at which
services were received by individuals who exited the VR program and is
not based on the rate at which the individuals achieve employment. (The
response to comments regarding Performance Indicator 2.1 includes an
expanded discussion of this issue.)
The numerator for the service rate calculation is the number of
individuals whose records are closed after they have received services
under an IPE, whether or not they achieved an employment outcome. The
denominator of the ratio is the number of all individuals whose records
are closed after they had applied for services, whether or not they had
an IPE. The denominator includes those individuals who-- (1) applied
for VR services but were not accepted into the program for any reason
(including failure to cooperate, moved, etc.); (2) had been accepted
for VR services but did not receive services for any reason (including
those individuals who withdrew from the program while on a waiting list
where the DSU is under an order of selection for services); (3)
received services under an IPE but did not achieve an employment
outcome; and (4) received services under an IPE and achieved an
employment outcome. RSA will calculate the service rate for both
minority and non-minority VR consumers.
Changes: None.
Section 361.82 Evaluation Standards
Comments: Two commenters expressed concern that the evaluation
standards and performance indicators do not assess whether the
employment outcome is consistent with the individual's informed
vocational choice.
Discussion: While these final regulations do not contain a
performance indicator for measuring informed choice, we want to
emphasize our commitment to ensuring that each individual applicant and
eligible individual is able to exercise informed choice throughout the
VR process. We also want to emphasize that we expect to develop an
indicator to measure the extent to which informed choice is part of the
provision of services. As discussed in the preamble to the NPRM, we
have proposed development of an evaluation standard for consumer
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satisfaction (draft proposed Evaluation Standard 3 (Consumer
Satisfaction)) that, in part, would measure the level of informed
choice given to consumers during the VR process. We are in the process
of reviewing the comments received on draft proposed Evaluation
Standard 3. However, until an evaluation standard for measuring
informed choice is formally proposed through the regulatory process,
the requirement for informed choice will continue to be enforced
through the monitoring and review process mandated in section 107 of
the Act.
Changes: None.
Section 361.84(c) Performance Indicators
Section 361.84(c)(1)(i) Performance Indicator 1.1
Comments: One commenter suggested that Performance Indicator 1.1 be
changed to measure the number of people who ``enter employment'' to
make this indicator consistent with Core Indicator I under section
136(b) of WIA. The commenter notes that Core Indicator I measures the
extent to which individuals ``enter unsubsidized employment,'' while
Performance Indicator 1.1 will measure the extent to which individuals
``exiting the VR program * * * achieved an employment outcome.'' The
commenter questioned the need for the differences between the two
measures and also questioned whether Performance Indicator 1.1--under
which individuals with disabilities must maintain employment for at
least 90 days to be considered to have ``achieved an employment
outcome''--establishes a more restrictive standard for the VR program
than that which applies to programs under Title I of WIA.
Discussion: As the commenter correctly points out, the Act requires
that the standards and indicators for the VR program be consistent, to
the maximum extent practicable, with the four Core Indicators
established under section 136(b) of WIA. To that end, Performance
Indicator 1.1 is consistent with the general objective of the WIA Core
Indicators, which is to examine the success in achieving employment
outcomes for individuals receiving services, but also accounts for the
range of employment outcomes available under the VR program.
``Employment outcomes'' under the VR program include the full scope of
employment options available to persons receiving VR services (e.g.,
competitive employment, employment in non-integrated settings,
homemaker, and unpaid family worker), whether those ``employment
outcomes'' are ``subsidized'' or ``unsubsidized.'' Thus, in assessing
success in achieving employment outcomes under the VR program, it is
necessary to consider the full range of outcomes contemplated by the
Act.
Performance Indicator 1.1 also reflects other requirements that are
specific to the VR program. In addition to making VR services available
to individuals with disabilities entering the job market, the VR
program authorizes VR services for eligible individuals who need those
services to retain their current job. Thus, measuring only the number
of individuals ``entering'' employment under the VR program, as done
under WIA Core Indicator I, would not account for those individuals who
receive VR services to maintain or continue their employment.
More generally, determining whether a VR program participant has
successfully achieved an employment outcome depends on many factors in
addition to the individual's ability to start or enter a job. For
example, under the VR program regulations, the individual's employment
must be consistent with the individual's strengths, resources,
priorities, concerns, abilities, capabilities, and informed choice, and
the individual must be performing well on the job. Success in meeting
these requirements cannot be accurately measured at the time the
individual enters employment. Therefore, the determination of whether a
VR program participant has successfully achieved an employment outcome
is best made at a later point. The 90-day retention period from the
time the individual begins working or no longer receives VR services is
designed to ensure that the particular job is appropriate to the
individual and has at least some measure of stability. We believe that
using this and the other requirements for achieving an employment
outcome under 34 CFR 361.56 to measure whether an individual's
participation in the VR program was successful is much more accurate
than focusing solely on the ability of an individual to enter
employment. Thus, the differences between proposed Performance
Indicator 1.1 and WIA Core Indicator I are necessary, and further
alignment of the two measures would not result in an accurate measure
of the extent to which States are successful in assisting people with
disabilities achieve employment outcomes under the VR program.
Nevertheless, we recognize that the WIA Core indicators represent
important measures for all programs, including the VR program, that are
part of the One-Stop service delivery system established under Title I
of WIA. Section 136(b)(2)(A)(i)(II) and (III) of WIA (WIA Core
Indicators II and III) measure retention of unsubsidized employment 6
months after entry into employment and earnings 6 months after entry
into employment, respectively. Consequently, we developed Draft
Proposed Evaluation Standard 4 and its attendant draft performance
indicators and presented those draft measures for public comment in the
preamble to the proposed regulations, in an effort to ensure that
future measures for the VR program reflect Core Indicators II and III.
Since the proposed regulations were published, however, we have been
working with the Department of Labor to further modify that draft
Standard and its Indicators to better align those measures with each of
the first three Core Indicators under Title I of WIA (the fourth WIA
core indicator--attainment of a recognized credential--is not reflected
in our drafts since the success of the VR program is judged solely on
the basis of achievement of employment outcomes, particularly high-
quality outcomes).
The new draft Standard, which we would implement through a separate
rulemaking effort (i.e., an NPRM seeking public comment and final
regulations) would measure the extent to which participants in the VR
program: (1) achieve an employment outcome with wages after receiving
VR services (analogous to WIA Core Indicator I--entry into unsubsidized
employment), (2) retain their employment 6 months after exiting the VR
program with a job (WIA Core Indicator II), and (3) increase their
earnings from the time they enter the VR program to the point 6 months
after they exit the program with a job (WIA Core Indicator III). We are
also working closely with the Department of Labor to adopt a common
data base, specifically, the Unemployment Insurance (UI) Wage Data
system maintained by State Employment Security Agencies, for purposes
of measuring performance under the new draft Standard.
Consequently, this new measure under the VR program would be very
closely aligned with the performance measures under WIA on key
performance items that are common to all employment programs, i.e.,
helping unemployed persons become employed, working to ensure that
participants are able to retain their jobs, and assisting persons to
obtain or maintain employment in which their earnings increase over
time. We expect to publish this new Standard and supporting
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indicators for public comment once we have completed our assessment of
the extent to which State VR units can obtain and use UI wage record
information in support of the draft Standard and have determined the
types of assistance State VR units might need to complete those tasks.
We are giving a high priority to these efforts in order to better
streamline the systems for measuring performance across partner
programs of the One-Stop delivery system.
Available data collection methods and instruments enable us to
implement only Standards 1 and 2 of the final regulations at this time.
However, once we have confirmed that State VR agencies are able to
report on the draft standard, we will determine what combination of
evaluation standards and performance indicators (e.g., adding the draft
Standard and indicators to the performance measures in these final
regulations, using the draft Standard as a substitute for one or more
of the final regulatory measures, or implementing some other
combination of measures) should be implemented in the future.
Therefore, the future performance system for the program will include
that combination of measures that best accounts for the uniqueness of
the VR program and the need for a universal system for measuring
performance of the State One-Stop system.
Changes: None.
Section 361.84(c)(1)(ii) Performance Indicator 1.2
Comments: Twelve commenters recommended that Performance Indicator
1.2 should measure only the percentage of individuals who obtain
employment after the individual is determined eligible and an IPE has
been established. These commenters further recommended that Performance
Indicator 1.2 should not measure the percentage of individuals whose
cases were closed (either as ineligible or after an eligibility
determination was made) before any services were received.
Discussion: We agree with the comments and want to clarify that
those individuals whose cases were closed (either as ineligible or
after an eligibility determination) before any services were received
will not be included in the percentage of individuals measured by
Performance Indicator 1.2. As recommended by the commenters,
Performance Indicator 1.2 will measure only the percentage of
individuals who exit the VR program after they have been determined
eligible and an IPE has been implemented.
Changes: None.
Section 361.84(c)(1)(iii) Performance Indicator 1.3
Comments: Five commenters recommended that those individuals who
achieve an employment outcome of ``self-employment'' be eliminated from
consideration under Performance Indicator 1.3 until a means to measure
the true wages of self-employed individuals is developed. These
commenters believe that the concept of ``wages'' is not applicable to
self-employed individuals because wages apply to what one person must
pay another and not what someone may be willing to earn if they are
self-employed.
Discussion: Performance Indicator 1.3 is not dependent on measuring
``wages'' per se. The measure is of an individual's ``earnings'' and
whether those ``earnings'' are equivalent to at least the minimum wage.
Although self-employed individuals may not earn ``wages'' per se, they
do have ``earnings,'' and their ``earnings'' can be calculated on an
hourly basis.
In addition, ``self-employment'' is specifically included within
the definition of ``employment outcome'' in section 7(11) of the Act.
Congress has recognized the importance of including all possible
employment outcomes for individuals with disabilities. The VR program
regulations and these indicators should be consistent with the Act and
congressional intent. Therefore, we believe that self-employment
outcomes for individuals with earnings comparable to at least the
minimum wage should be included in the percentage of individuals who
exit the VR program with earnings comparable to at least the minimum
wage.
Changes: None.
Section 361.84(c)(1)(v) Performance Indicator 1.5
Comments: Some commenters were concerned about comparing the
earnings of VR consumers exiting the VR program to the State's average
hourly earnings. Their concern was based on their belief that most VR
consumers achieve employment outcomes that are at the level of workers
newly entering the work force while the State's average hourly wage is
computed for all workers in the State, including workers with years of
employment. These commenters believed that a more appropriate
comparison would be to the average entry level worker in the State's
work force.
Discussion: The assumption that most VR consumers achieve only
employment comparable to that of new workers is inconsistent with the
available data. The ``Third Interim Report'' of the ``Longitudinal
Study of the Vocational Rehabilitation Service Program,'' published in
August 1998 (``Third Interim Report''), reported that over 96 percent
of VR consumers who achieved employment outcomes had prior work
experience. Specifically, the report stated the following: 36.9 percent
of VR consumers were working at the time they applied for VR services;
37.8 percent of VR consumers had worked in the 2 years prior to
applying for VR services; and 21.7 percent of VR consumers had worked
previously, but not in the 2 years prior to applying for VR services.
Additionally, the performance indicator includes only those individuals
earning at least the minimum wage (necessarily excluding those
individuals who earn less than the minimum wage at placement and whose
inclusion would lower the ratio), and the minimum performance level is
set at a ratio of less than .6 (an earnings level for VR consumers of
less than 60 percent of the ``State Average Annual Pay''). We believe
the performance level for Performance Indicator 1.5 is consistent with
the Act's emphasis on high-quality employment outcomes. Therefore, we
do not believe a change is needed in this performance indicator.
Changes: None.
Section 361.84(c)(1)(vii) Performance Indicator 1.7
Comments: Fourteen commenters expressed concern that proposed
Performance Indicator 1.7 was not a fair measure of DSU performance
because the provision of medical insurance by the employer is outside
the DSU's control. In addition, they felt that this proposed measure
does not account for variability among States with regard to the
availability of insurance programs and the changing nature of the labor
market where employment-related benefits are less available. Three
commenters were concerned that this proposed indicator would negatively
impact VR consumers obtaining jobs with small employers who are less
likely to provide medical insurance as a benefit option.
Discussion: Performance Indicator 1.7 would have addressed what
research indicates is a major impediment to individuals with
disabilities entering the workforce--the unavailability of adequate
health insurance. The growing number of employers that do not provide
health insurance worsens this problem. If this trend continues, DSUs
will have reduced opportunities to place individuals with disabilities
into jobs that provide health insurance. This would cause their
performance on Indicator 1.7 to erode.
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However, many individuals are covered by Medicaid, Medicare, and
private insurance provided by their spouses, families, or other means.
Also, all employees are covered by workers' compensation for injuries
and illnesses that occur while on the job. In addition, the ``Ticket-
to-Work and Work Incentives Improvement Act of 1999,'' Pub. L. 106-170
(December 17, 1999), allows Medicaid recipients to keep their coverage
even if they find employment. Because approximately one quarter of all
individuals served by the VR program receive Supplemental Security
Income (SSI) and Social Security Disability Insurance (SSDI), we expect
that a growing number of individuals served by the DSUs will be
eligible to retain Medicaid after they find employment. This will
reduce the need for employer-provided health insurance for individuals
served by DSUs.
Despite this limited availability of health insurance for some
individuals served by DSUs, the problem persists. Of the nearly 34.67
million poor people in the U.S., only approximately 14 million are
covered by Medicaid. Of the remaining 20.67 million poor, only
approximately 9.47 million have health insurance. The remaining 11.2
million poor do not have health insurance and will not be helped by the
new law.
In proposing this indicator, we assumed that health insurance was
evenly distributed across the income spectrum and was reasonably
available at all levels of income. However, further examination of the
data provided in the ``Third Interim Report'' indicates the difficulty
in finding jobs that offer health insurance at the wages earned by the
majority of individuals with disabilities who are served by VR
agencies.
For example, nearly 31.5 percent of individuals who are placed in
competitive employment by a VR agency make $5 or less per hour.
However, only 13 percent of jobs that pay $5 or less per hour offer
health insurance.
In addition, nearly 31 percent of individuals who are placed in
competitive employment by a VR agency make more than $5 but less than
$7 per hour. However, only 35 percent of jobs that pay more than $5 but
less than $7 per hour offer health insurance.
For slightly higher paying jobs, the percentage that offer health
insurance increases significantly, although the percentage is still
barely more than 50 percent. For example, 52.1 percent of jobs that pay
more than $7 but less than $9 per hour offer health insurance. However,
only 16.6 percent of individuals who are placed in competitive
employment by a VR agency make more than $7 but less than $9 per hour.
The increase in jobs that offer health insurance is not as dramatic
as wages increase. Only 54.9 percent of jobs that pay more than $9 but
less than $11 per hour offer health insurance. However, only 8.8
percent of individuals who are placed in competitive employment by a VR
agency make more than $9 but less than $11 per hour.
Finally, at the highest wage level for which we have data, 65
percent of jobs that pay more than $11 per hour offer health insurance.
However, only 12.1 percent of individuals who are placed in competitive
employment make more than $11 per hour.
The data show that nearly 62.5 percent of individuals who achieve
competitive employment earn $7 or less per hour and that only a small
percentage of jobs at these low wage levels offer health insurance.
Therefore, we believe that the burden associated with satisfying this
proposed indicator does not justify the extra resources, time, and
effort DSUs would have to devote to finding those few jobs that offer
health insurance for the majority of individuals served by DSUs.
In addition, even if we did believe finding the few jobs with
health insurance was worth the extra burden, we believe that this
proposed indicator would not have encouraged DSUs to assist individuals
with disabilities to acquire health insurance from other sources, even
though those other sources may be more appropriate for many individuals
with disabilities. This proposed indicator also would have served as a
disincentive to recruiting and accepting individuals with little or no
education or work experience. Instead, this proposed indicator would
have provided an incentive for recruiting and accepting those
individuals with disabilities who already are well-educated, have
extensive job experience, or are more likely to be candidates for
community college or university training. We do not believe this would
be a desirable result.
The data from the ``Third Interim Report'' also indicate that part-
time workers, who are a significant percentage of individuals with
disabilities who are employed, are less likely to find jobs that offer
health insurance. Finally, the data indicate that firms with fewer than
25 employees are least likely to offer health insurance. These data
show the difficulty in finding jobs that offer health insurance for
individuals with disabilities, who are more likely to end up in low-
paying, part-time jobs with smaller employers.
We believe DSUs should make every reasonable effort to find those
employers who will provide health insurance to their employees who are
not covered by Medicaid or some other health insurance. However, we
recognize the difficulty in finding those employers. For this reason we
believe this proposed indicator is not appropriate at this time.
Changes: We have deleted proposed Performance Indicator 1.7.
Section 361.84(c)(2)(i) Performance Indicator 2.1
Comments: One commenter suggested that Performance Indicator 2.1
does not include enough variables to adequately assess DSU services to
individuals from minority backgrounds. This commenter suggested that
comparing minority versus non-minority numbers by type of closure would
be more statistically significant. Another commenter suggested that a
better measurement than service rate would be to compare the employment
outcome rate of individuals from minority backgrounds to the employment
outcome rate of non-minority individuals. Still another commenter
suggested that this indicator should compare the employment outcome
rate, the average hourly wages, and availability of medical insurance
benefits of individuals from minority backgrounds to those of non-
minority individuals. One commenter questioned the need for this
indicator if it can be satisfied through an examination of the DSU's
policies and procedures.
Discussion: At this time, we do not have any data on which to
compare the employment outcome rates, the average hourly wages, types
of closures, or availability of medical insurance benefits of
individuals from minority backgrounds to those of non-minority
individuals. We believe that the comparison of service rates between
individuals from minority backgrounds and individuals from non-minority
backgrounds as the performance indicator for this evaluation standard
is the appropriate starting point to determine whether individuals with
disabilities from minority backgrounds have equal access to VR
services. As we continue to collect additional data, we may determine
in the future that comparing minorities and non-minorities by the type
of closure, rate of employment outcomes, average hourly wages, or
availability of medical insurance benefits is also necessary. Until we
collect that additional data, we will not be able to develop an
indicator to measure these factors.
We believe that requiring a DSU to describe the policies it has
adopted and
[[Page 35797]]
the steps it has taken to ensure that individuals with disabilities
from minority backgrounds have equal access to VR services is the best
performance indicator for this evaluation standard. The two-step
approach in Sec. 361.86(b)(2)(i) and (ii) for measuring compliance with
Performance Indicator 2.1 ensures that DSUs will make appropriate
efforts to ensure equal access to services for minority individuals.
Changes: None.
Section 361.84(c)(2)(ii) Performance Indicator 2.2
Comments: Nine commenters suggested that proposed Performance
Indicator 2.2 should be eliminated because it is invalid to compare
individuals with significant disabilities who self-report to the Census
a disability that prevents them from working to individuals with
significant disabilities who are eligible to receive VR services. Four
commenters recommended deleting this proposed indicator if the 2000
Census does not include the data necessary to measure how to comply
with it. Three commenters suggested that comparing the percentage of
DSU consumers who are from minority backgrounds to the percentage of
minority individuals in the general population is a more valid and
reliable indicator. One commenter suggested that data on SSDI
beneficiaries and SSI recipients may be used as an alternative to
Census data.
Discussion: In addition to the comments opposed to this proposed
indicator, the Bureau of the Census has decided not to continue to
collect the data necessary to perform the proposed comparison. We will
give serious consideration to the comments on the proposed indicator in
the development of a new indicator.
Changes: We have deleted proposed Performance Indicator 2.2.
Section 361.86 Performance Levels
Comments: Three commenters stated that establishing different
performance levels for agencies that serve only blind or visually
impaired individuals implied incorrectly that those individuals were
more significantly disabled than individuals served by general or
combined DSUs. Two commenters were concerned that the lower performance
levels for agencies serving only blind or visually impaired individuals
were in conflict with the Act's commitment to competitive employment
outcomes above the minimum wage. These two commenters recommended
raising the level of performance for these agencies over a reasonable
period of time so that they are eventually at the same performance
level as general and combined DSUs.
One commenter suggested that we create a separate performance level
for combined DSUs because many States are considering creating a
separate agency serving blind and visually impaired individuals. The
commenter also suggested that the transition for those combined DSUs
will be easier if different performance levels are in effect when the
transition occurs.
Discussion: We believe that agencies serving only individuals who
are blind or visually impaired should continue to have different levels
of performance from combined DSUs (those agencies that serve
individuals who are blind or visually impaired and individuals with
other disabilities) and general DSUs (those agencies that do not serve
individuals who are blind or visually impaired). Individuals served by
agencies for the blind are, in many (if not most) cases, totally blind.
Total blindness is a significant disability that often places more
limitations on an individual than other types of disabilities. As a
result, the services provided by agencies that serve individuals who
are blind or visually impaired are generally more comprehensive and
take longer to provide than the services provided to many individuals
who receive VR services from a general or combined DSU. In addition,
because of the significance of their disability, a much smaller number
of individuals who are blind or visually impaired achieve a competitive
employment outcome. The greater significance of their disability also
results in generally lower wage levels for the majority of individuals
served by agencies that serve individuals who are blind or visually
impaired. These factors and the challenges faced by individuals who are
blind or have visual impairments require that we establish different
performance levels for agencies serving these individuals.
The performance levels established in these final regulations are
only the first step in ensuring improved DSU performance. The Act
requires that the standards and indicators be reviewed every 3 years.
Section 361.86(a)(2) of these final regulations allows us to establish
new performance levels through the regulatory process, which includes
the opportunity for public comment. We intend to adjust performance
levels in the future to ensure that all agencies--general DSUs,
combined DSUs, and agencies serving individuals who are blind and
visually impaired--provide the highest quality of services to eligible
individuals.
Changes: None.
Comments: Five commenters recommended that the availability of
resources and whether a DSU is operating under an order of selection
for services under section 101(a)(5) of the Act be included as factors
in determining minimally acceptable levels of performance.
Discussion: We agree that the availability of resources belongs in
the performance equation. However, we do not agree that the
availability of resources should be included in measuring whether a DSU
has achieved a minimally acceptable level of performance. Given that
DSUs with the same amount of resources may perform quite differently,
the proper criterion for measuring performance under an outcome-based
standards and indicators system is whether a DSU is successfully
assisting individuals with disabilities to achieve employment outcomes.
If a DSU fails to meet the indicator for achieving a minimally
acceptable level of performance (e.g., achieving employment outcomes),
the Act and the regulations require that the Secretary and DSU jointly
develop a program improvement plan that outlines the specific actions
the DSU will take to improve program performance. In developing the
program improvement plan, we will consider, pursuant to the Act and
these final regulations, all available and relevant data and
information related to the DSU's performance. Because the availability
of resources greatly affects what actions may be taken to improve
performance, we believe that the time to properly consider the
availability of resources will be during the development of the program
improvement plan.
In reviewing data concerning the past performance of all DSUs, we
found that the performance of DSUs operating under an order of
selection did not, overall, vary significantly from the performance of
DSUs not operating under an order of selection. Thus, whether or not a
DSU is operating under an order of selection should not be a factor in
determining a minimally acceptable level of performance. However, the
yearly analysis of program performance based on the standards and
indicators (to be included in the Annual Report to Congress) will
indicate whether a DSU is operating under an order of selection.
Changes: None.
Comments: Two commenters were concerned that meeting the
performance level for Performance Indicator 2.1 may
[[Page 35798]]
result in quotas because the level is set too high.
Discussion: We disagree that Performance Indicator 2.1 requires a
DSU to impose quotas. If the service rate for minority individuals is
less than 80 percent of the service rate for non-minority individuals
or if fewer than 100 individuals from a minority population have exited
the VR program during the reporting period, the DSU only needs to
describe the policies it has adopted or will adopt and the steps it has
taken or will take to ensure that individuals with disabilities from
minority backgrounds have equal access to VR services. In these
instances, RSA will examine a DSU's existing or proposed policies and
the steps it has taken or proposes to take to determine their
effectiveness in achieving equal access for minority individuals with
disabilities.
A greater than 20 percent racial disparity in service rates will
trigger a review of a DSU's seemingly neutral practices to determine
whether they are having the effect of racial discrimination. This
approach is well-established within the Department and in desegregation
case law. Its use in the education context dates to the early 1970's
when the Department of Health, Education, and Welfare, the predecessor
to the Department of Education, was actively involved in the
desegregation of public school districts pursuant to the Supreme
Court's decision in Swann v. Charlotte-Mecklenburg Board of Education,
91 S.Ct. 1267 (1971). In that case, the Court held that a ``substantial
disproportion'' in the racial composition of schools warranted an
examination of the school district's policies and practices to
determine if remedial action was necessary. In adopting this measure of
performance, and in response to the commenters' concern that the
measure may require quotas, we are guided by the Federal case-law
established pursuant to Swann. Courts have held that the law does not
require a racial balance reflecting the composition of the community.
However, courts have ruled that limited use of mathematical ratios may
serve as a starting point in identifying whether a racial imbalance is
the result of racial discrimination that requires remedial action.
Changes: None.
Section 361.88 Reporting Requirements
Comments: None.
Discussion: Our decision to delete proposed Performance Indicators
1.7 and 2.2 (discussed previously) eliminates a DSU's need to report
data measuring its performance on those indicators.
Changes: We have deleted the requirements to report the number of
individuals exiting the VR program in full-time, competitive employment
(proposed Sec. 361.88(a)(7)); health insurance data (proposed
Sec. 361.88(a)(8)); and the number of individuals from minority
backgrounds with significant disabilities who exit the program after
receiving VR services under an IPE (proposed Sec. 361.88(a)(13)).
Therefore, we have correspondingly renumbered the remaining
reporting requirements (numbered (9), (10), (11) and (12) in the NPRM)
as Secs. 361.88(a)(7) through (10), respectively.
Goals 2000: Educate America Act
The Goals 2000: Educate America Act (Goals 2000) focuses the
Nation's education reform efforts on the eight National Education Goals
and provides a framework for meeting them. Goals 2000 promotes new
partnerships to strengthen schools and expands our capacities for
helping to exchange ideas and obtain information needed to achieve the
goals.
These final regulations address the National Education Goal that
every adult American will possess the knowledge and skills necessary to
compete in a global economy and exercise the rights and
responsibilities of citizenship. The regulations further the objectives
of this Goal by implementing a program that affords individuals with
disabilities opportunities for job training, job placement, placement
in competitive employment, and career advancement.
Executive Order 12866
We have reviewed these final regulations in accordance with
Executive Order 12866. Under the terms of this order, we have assessed
the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those
resulting from statutory requirements and those we have determined to
be necessary for administering this program effectively and
efficiently. This preamble identifies and explains any burdens that may
be specifically associated with information collection requirements.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these final regulations, we have determined that
the benefits of the final regulations justify the costs.
We also have determined that this regulatory action does not unduly
interfere with State, local, and tribal governments in the exercise of
their governmental functions.
Summary of Potential Costs and Benefits
We summarized the potential costs and benefits of these final
regulations in the preamble to the NPRM under the following headings:
Executive Order 12866 (1. Potential Costs and Benefits) and Paperwork
Reduction Act of 1995. (63 FR 55292 and 55301) We include additional
discussion of potential costs and benefits in the section of this
preamble titled Analysis of Comments and Changes.
We believe the changes in these final regulations will improve the
VR program and will yield substantial benefits in terms of improved
accountability and performance. We also believe the final regulations
will improve accountability by focusing on the most critical areas of
DSU performance. Therefore, we have determined that the potential
benefits of these changes justify the potential costs.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995 does not require you to respond
to a collection of information unless it displays a valid OMB control
number. We display the valid OMB control number assigned to the
collections of information in these final regulations at the end of the
affected sections of the regulations.
Intergovernmental Review
This program is subject to the requirements of Executive Order
12372 and the regulations in 34 CFR part 79. The objective of the
Executive order is to foster an intergovernmental partnership and a
strengthened federalism by relying on processes developed by State and
local governments for coordination and review of proposed Federal
financial assistance.
In accordance with the order, we intend this document to provide
early notification of our specific plans and actions for this program.
Assessment of Educational Impact
In the NPRM, we requested comments on whether the proposed
regulations would require transmission of information that any other
agency or authority of the United States gathers or makes available.
Based on the response to the NPRM and on our review, we have
determined that these final regulations do not require transmission of
information that any other agency or authority of the
[[Page 35799]]
United States gathers or makes available.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at either of the
following sites:
http://ocfo.ed.gov/fedreg.htm
http://www.ed.gov/news.html
To use the PDF you must have the Adobe Acrobat Reader Program with
Search, which is available free at either of the previous sites. If you
have questions about using the PDF, call the U.S. Government Printing
Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC
area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: http://www.acess.gpo.gov/
nara/index.html
(Catalog of Federal Domestic Assistance Number: 84.126 The State
Vocational Rehabilitation Services Program)
List of Subjects in 34 CFR Part 361
Reporting and recordkeeping requirements, State-administered grant
program--education, Vocational rehabilitation.
Dated: March 6, 2000.
Richard W. Riley,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary amends
Title 34, Chapter III, part 361, of the Code of Federal Regulations as
follows:
1. The authority citation for Part 361 continues to read as
follows:
Authority: 29 U.S.C. 711(c), unless otherwise noted.
2. Subpart E, consisting of Secs. 361.80 through 361.89, is added
to read as follows:
PART 361--THE STATE VOCATIONAL REHABILITATION SERVICES PROGRAM
Subpart E--Evaluation Standards and Performance Indicators
Sec.
361.80 Purpose.
361.81 Applicable definitions.
361.82 Evaluation standards.
361.84 Performance indicators.
361.86 Performance levels.
361.88 Reporting requirements.
361.89 Enforcement procedures.
Subpart E--Evaluation Standards and Performance Indicators
Sec. 361.80 Purpose.
The purpose of this subpart is to establish evaluation standards
and performance indicators for the Program.
(Authority: 29 U.S.C. 726(a))
Sec. 361.81 Applicable definitions.
In addition to those definitions in Sec. 361.5(b), the following
definitions apply to this subpart:
Average hourly earnings means the average per hour earnings in the
week prior to exiting the vocational rehabilitation (VR) program of an
eligible individual who has achieved a competitive employment outcome.
Business Enterprise Program (BEP) means an employment outcome in
which an individual with a significant disability operates a vending
facility or other small business under the management and supervision
of a designated State unit (DSU). This term includes home industry,
farming, and other enterprises.
Exit the VR program means that a DSU has closed the individual's
record of VR services in one of the following categories:
(1) Ineligible for VR services.
(2) Received services under an individualized plan for employment
(IPE) and achieved an employment outcome.
(3) Received services under an IPE but did not achieve an
employment outcome.
(4) Eligible for VR services but did not receive services under an
IPE.
General or combined DSU means a DSU that does not serve exclusively
individuals with visual impairments or blindness.
Individuals from a minority background means individuals who report
their race and ethnicity in any of the following categories: American
Indian or Alaska Native, Asian, Black or African American, Native
Hawaiian or Other Pacific Islander, or Hispanic or Latino.
Minimum wage means the higher of the rate specified in section
6(a)(1) of the Fair Labor Standards Act of 1938, 29 U.S.C. 206(a)(1),
(i.e., the Federal minimum wage) or applicable State minimum wage law.
Non-minority individuals means individuals who report themselves
exclusively as White, non-Hispanic.
Performance period is the reporting period during which a DSU's
performance is measured. For Evaluation Standards 1 and 2, performance
data must be aggregated and reported for each fiscal year beginning
with fiscal year 1999. However, DSUs that exclusively serve individuals
with visual impairments or blindness must report each year the
aggregated data for the 2 previous years for Performance Indicators 1.1
through 1.6; the second year must coincide with the performance period
for general or combined DSUs.
Primary indicators means Performance Indicators 1.3, 1.4, and 1.5,
which are specifically designed to measure--
(1) The achievement of competitive, self-, or BEP employment with
earnings equivalent to the minimum wage or higher, particularly by
individuals with significant disabilities; and
(2) The ratio between the average hourly earnings of individuals
who exit the VR program in competitive, self-, or BEP employment with
earnings equivalent to the minimum wage or higher and the State's
average hourly earnings for all employed individuals.
RSA-911 means the Case Service Report that is submitted annually by
a DSU as approved by the Office of Management and Budget (OMB).
Self-employment means an employment outcome in which the individual
works for profit or fee in his or her own business, farm, shop, or
office, including sharecroppers.
Service rate means the result obtained by dividing the number of
individuals who exit the VR program after receiving one or more
services under an IPE during any reporting period by the total number
of individuals who exit the VR program (as defined in this section)
during that reporting period.
State's average hourly earnings means the average hourly earnings
of all persons in the State in which the DSU is located.
(Authority: 29 U.S.C. 726(a))
Sec. 361.82 Evaluation standards.
(a) The Secretary establishes two evaluation standards to evaluate
the performance of each DSU that receives funds under this part. The
evaluation standards assist the Secretary and each DSU to evaluate a
DSU's performance in serving individuals with disabilities under the VR
program.
(b) A DSU must achieve successful performance on both evaluation
standards during each performance period.
(c) The evaluation standards for the VR program are--
(1) Evaluation Standard 1--Employment outcomes. A DSU must assist
any eligible individual, including an individual with a significant
disability, to obtain, maintain, or regain high-quality employment.
[[Page 35800]]
(2) Evaluation Standard 2--Equal access to services. A DSU must
ensure that individuals from minority backgrounds have equal access to
VR services.
(Approved by the Office of Management and Budget under control
number 1820-0508.)
(Authority: 29 U.S.C. 726(a))
Sec. 361.84 Performance indicators.
(a) The performance indicators establish what constitutes minimum
compliance with the evaluation standards.
(b) The performance indicators require a DSU to provide information
on a variety of factors to enable the Secretary to measure compliance
with the evaluation standards.
(c) The performance indicators are as follows:
(1) Employment outcomes.
(i) Performance Indicator 1.1. The number of individuals exiting
the VR program who achieved an employment outcome during the current
performance period compared to the number of individuals who exit the
VR program after achieving an employment outcome during the previous
performance period.
(ii) Performance Indicator 1.2. Of all individuals who exit the VR
program after receiving services, the percentage who are determined to
have achieved an employment outcome.
(iii) Performance Indicator 1.3. Of all individuals determined to
have achieved an employment outcome, the percentage who exit the VR
program in competitive, self-, or BEP employment with earnings
equivalent to at least the minimum wage.
(iv) Performance Indicator 1.4. Of all individuals who exit the VR
program in competitive, self-, or BEP employment with earnings
equivalent to at least the minimum wage, the percentage who are
individuals with significant disabilities.
(v) Performance Indicator 1.5. The average hourly earnings of all
individuals who exit the VR program in competitive, self-, or BEP
employment with earnings levels equivalent to at least the minimum wage
as a ratio to the State's average hourly earnings for all individuals
in the State who are employed (as derived from the Bureau of Labor
Statistics report ``State Average Annual Pay'' for the most recent
available year).
(vi) Performance Indicator 1.6. Of all individuals who exit the VR
program in competitive, self-, or BEP employment with earnings
equivalent to at least the minimum wage, the difference between the
percentage who report their own income as the largest single source of
economic support at the time they exit the VR program and the
percentage who report their own income as the largest single source of
support at the time they apply for VR services.
(2) Equal access to services.
(i) Performance Indicator 2.1. The service rate for all individuals
with disabilities from minority backgrounds as a ratio to the service
rate for all non-minority individuals with disabilities.
(Approved by the Office of Management and Budget under control
number 1820-0508.)
(Authority: 29 U.S.C. 726(a))
Sec. 361.86 Performance levels.
(a) General.
(1) Paragraph (b) of this section establishes performance levels
for--
(i) General or combined DSUs; and
(ii) DSUs serving exclusively individuals who are visually impaired
or blind.
(2) The Secretary may establish, by regulations, new performance
levels.
(b) Performance levels for each performance indicator.
(1)(i) The performance levels for Performance Indicators 1.1
through 1.6 are--
------------------------------------------------------------------------
Performance level by type of DSU
Performance indicator -----------------------------------------
General/combined Blind
------------------------------------------------------------------------
1.1........................... Equal or exceed Same.
previous performance
period.
1.2........................... 55.8%................ 68.9%
1.3........................... 72.6%................ 35.4%
1.4........................... 62.4%................ 89.0%
1.5........................... .52 (Ratio).......... .59
1.6........................... 53.0 (Math. 30.4
Difference).
------------------------------------------------------------------------
(ii) To achieve successful performance on Evaluation Standard 1
(Employment outcomes), a DSU must meet or exceed the performance levels
established for four of the six performance indicators in the
evaluation standard, including meeting or exceeding the performance
levels for two of the three primary indicators (Performance Indicators
1.3, 1.4, and 1.5).
(2)(i) The performance level for Performance Indicator 2.1 is--
------------------------------------------------------------------------
Performance indicator Performance levels
------------------------------------------------------------------------
2.1.................................... .80 (Ratio)
------------------------------------------------------------------------
(ii) To achieve successful performance on Evaluation Standard 2
(Equal access), DSUs must meet or exceed the performance level
established for Performance Indicator 2.1 or meet the performance
requirement in paragraph (2)(iii) of this section.
(iii) If a DSU's performance does not meet or exceed the
performance level required for Performance Indicator 2.1, or if fewer
than 100 individuals from a minority population have exited the VR
program during the reporting period, the DSU must describe the policies
it has adopted or will adopt and the steps it has taken or will take to
ensure that individuals with disabilities from minority backgrounds
have equal access to VR services.
(Authority: 29 U.S.C. 726(a))
Sec. 361.88 Reporting requirements.
(a) The Secretary requires that each DSU report within 60 days
after the end of each fiscal year the extent to which the State is in
compliance with the evaluation standards and performance indicators and
include in this report the following RSA-911 data:
(1) The number of individuals who exited the VR program in each
closure category as specified in the definition of ``Exit the VR
program'' under Sec. 361.81.
(2) The number of individuals who exited the VR program in
competitive, self-, or BEP employment with earnings at or above the
minimum wage.
(3) The number of individuals with significant disabilities who
exited the VR program in competitive, self-, or BEP employment with
earnings at or above the minimum wage.
(4) The weekly earnings and hours worked of individuals who exited
the VR program in competitive, self-, or BEP employment with earnings
at or above the minimum wage.
(5) The number of individuals who exited the VR program in
competitive, self-, or BEP employment with earnings at or above the
minimum wage whose primary source of support at the time
[[Page 35801]]
they applied for VR services was ``personal income.''
(6) The number of individuals who exited the VR program in
competitive, self-, or BEP employment with earnings at or above the
minimum wage whose primary source of support at closure was ``personal
income.''
(7) The number of individuals exiting the VR program who are
individuals from a minority background.
(8) The number of non-minority individuals exiting the VR program.
(9) The number of individuals from a minority background exiting
the VR program after receiving services under an IPE.
(10) The number of non-minority individuals exiting the VR program
after receiving services under an IPE.
(b) In lieu of the report required in paragraph (a) of this
section, a DSU may submit its RSA-911 data on tape, diskette, or any
alternative electronic format that is compatible with RSA's capability
to process such an alternative, as long as the tape, diskette, or
alternative electronic format includes the data that--
(1) Are required by paragraph (a)(1) through (10) of this section;
and
(2) Meet the requirements of paragraph (c) of this section.
(c) Data reported by a DSU must be valid, accurate, and in a
consistent format. If a DSU fails to submit data that are valid,
accurate, and in a consistent format within the 60-day period, the DSU
must develop a program improvement plan pursuant to Sec. 361.89(a).
(Approved by the Office of Management and Budget under control
number 1820-0508.)
(Authority: 29 U.S.C. 726(b))
Sec. 361.89 Enforcement procedures.
(a) If a DSU fails to meet the established performance levels on
both evaluation standards as required by Sec. 361.82(b), the Secretary
and the DSU must jointly develop a program improvement plan that
outlines the specific actions to be taken by the DSU to improve program
performance.
(b) In developing the program improvement plan, the Secretary
considers all available data and information related to the DSU's
performance.
(c) When a program improvement plan is in effect, review of the
plan is conducted on a biannual basis. If necessary, the Secretary may
request that a DSU make further revisions to the plan to improve
performance. If the Secretary establishes new performance levels under
Sec. 361.86(a)(2), the Secretary and the DSU must jointly modify the
program improvement plan based on the new performance levels. The
Secretary continues reviews and requests revisions until the DSU
sustains satisfactory performance based on the current performance
levels over a period of more than 1 year.
(d) If the Secretary determines that a DSU with less than
satisfactory performance has failed to enter into a program improvement
plan or comply substantially with the terms and conditions of the
program improvement plan, the Secretary, consistent with the procedures
specified in Sec. 361.11, reduces or makes no further payments to the
DSU under this program until the DSU has met one of these two
requirements or raised its subsequent performance to meet the current
overall minimum satisfactory level on the compliance indicators.
(Approved by the Office of Management and Budget under control
number 1820-0508.)
(Authority: 29 U.S.C. 726(b) and (c))
[FR Doc. 00-13948 Filed 6-2-00; 8:45 am]
BILLING CODE 4000-01-U