Rule2023-15062
VA Vocational Rehabilitation and Employment Nomenclature Change for Position Title-Revision
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 18, 2023
Effective
July 18, 2023
Issuing agencies
Veterans Affairs Department
Abstract
This final rule adopts, without change, an interim final rule published in the Federal Register on November 17, 2017, which affirmed a May 2, 2016, final rule amending Department of Veterans Affairs (VA) regulations to reflect a nomenclature change in the title of certain personnel hired by VA's Veteran Readiness and Employment (VR&E) Service, previously known as Vocational Rehabilitation and Employment Service. The preamble to the interim final rule corrected inaccuracies in the preamble to the 2016 final rule and provided additional explanation of the basis for the rule.
Full Text
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<title>Federal Register, Volume 88 Issue 136 (Tuesday, July 18, 2023)</title>
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[Federal Register Volume 88, Number 136 (Tuesday, July 18, 2023)]
[Rules and Regulations]
[Pages 45818-45821]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-15062]
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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: Final rule.
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SUMMARY: This final rule adopts, without change, an interim final rule
published in the Federal Register on November 17, 2017, which affirmed
a May 2, 2016, final rule amending Department of Veterans Affairs (VA)
regulations to reflect a nomenclature change in the title of certain
personnel hired by VA's Veteran Readiness and Employment (VR&E)
Service, previously known as Vocational Rehabilitation and Employment
Service. The preamble to the interim final rule corrected inaccuracies
in the preamble to the 2016 final rule and provided additional
explanation of the basis for the rule.
DATES: This rule is effective July 18, 2023.
FOR FURTHER INFORMATION CONTACT: Allison Bernheimer, Senior Policy
Analyst, Veteran Readiness and Employment Service (28), Veterans
Benefits Administration, Department of Veterans Affairs, 810 Vermont
Avenue NW, Washington, DC 20420, (202) 461-9600. (This is not a toll-
free telephone number.)
SUPPLEMENTARY INFORMATION: On May 2, 2016, VA published a final rule
(referred to as ``May 2016 final rule'' or ``final rule'') in the
Federal Register at 81 FR 26130, amending its regulations to reflect a
nomenclature change in the title of certain personnel hired by VA's
VR&E Program. On November 17, 2017, VA published an interim final rule
(referred to as ``November 2017 interim final rule'' or ``interim final
rule'') in the Federal Register at 82 FR 54295 affirming the May 2016
final rule. In the preamble to the November 2017 interim final rule, VA
corrected some inaccurate statements and citations in the preamble of
the May 2016 final rule and provided additional explanation of the
basis for the rule. Although the interim final rule was effective upon
publication, VA provided a 30-day comment period, which ended on
December 18, 2017.
VA received a multitude of comments, including comments on the May
2016 final rule, from one individual. The one commenter had challenged
promulgation of both the May 2016 final rule and the November 2017
interim final rule under 38 U.S.C. 502 as arbitrary, capricious, an
abuse of discretion, and otherwise contrary to law, in the United
States Court of Appeals for the Federal Circuit (Federal Circuit), and
also claimed there was not good cause for dispensing with a notice-and-
comment period and a delayed effective date. The Federal Circuit found
that promulgating the rule was not arbitrary, capricious, or a
violation of law, and that VA had good cause to expedite implementation
of the rule. Conyers v. Sec'y of Veterans Affairs, 750 Fed. Appx. 993
(Fed. Cir. 2018).
First, the commenter indicates three ``distinct factors'' to oppose
promulgation of the interim final rule. The first factor addresses the
differences between the duties and responsibilities of the two
positions of counseling psychologist (CP) and vocational rehabilitation
counselor (VRC). The commenter states, ``it is indisputable that there
are several critical distinctions in the unique training
[[Page 45819]]
matrices, core competencies and knowledge, and qualifications that are
unique for each of said professions.'' In addition, the commenter
states that VA ``conflat[ed] the diverse diagnostic, psychotherapeutic,
and paraprofessional credentials, duties, and responsibilities inherent
for such professions'' and that VA ``fail[ed] to either acknowledge or
account for the apposite governing standards of certification
requisites, licensure criterions, and methodological practices for said
professions.''
While the education, qualifications, and experience for CPs and
VRCs may not be absolutely identical, VRCs are qualified to meet VA's
statutory requirements to provide rehabilitative services and perform
the duties of the position, as outlined in the regulatory amendments
made by the final rule. As stated in the November 2017 interim final
rule, the requirements for the VRC position ``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.'' 82 FR 54296. The
commenter's assertions of differences between CPs and VRCs does not
change that assessment. The Federal Circuit concluded that the
difference in hiring standards does not violate any laws that would
render the rule unlawful. Conyers, 750 Fed. Appx. at 998. Therefore, we
will not make any changes based on this comment.
The second factor stated by the commenter is that VA ``conflat[ed]
the duties and responsibilities of CPs hired in GS-0180 positions and
VRCs hired in GS-0101 positions to provide the same type of
rehabilitation services and perform the same work.'' In addition, the
commenter states that VA did not collaborate with the Office of
Personnel Management (OPM) in ``effecting modifications of, amendments
to, or deviations from the Federal classification standards for said
positions prior to [VA] implementing such amalgamation.'' The
commenter's statements again focus on the differences in the roles and
responsibilities between a CP and a VRC. Under 38 U.S.C. 3118(c), VA
has the discretion to establish qualifications for personnel providing
evaluation and rehabilitation services. Also, there is no requirement
that the VA Secretary collaborate with OPM when developing policies and
procedures relating to the establishment and maintenance of standards.
The Federal Circuit confirmed that there is no requirement to consult
with OPM before making hiring changes. Id. With regard to conflating
the duties and responsibilities of CPs and VRCs, the Federal Circuit
stated that VA ``has shown a rational connection between the facts
found and the choice made.'' Id. at 999. Therefore, we will not make
any changes based on these comments.
The third factor stated by the commenter asserts ``highly dubious
acts and omissions committed by [VA] in the course of promulgating
regulations, policies, and procedures governing the administration and
provisioning of Chapter 31 vocational rehabilitation benefits,
services, and assistance.''
With regard to this factor, the commenter raises three assertions,
the first of which concerns the position description for VRCs. The
commenter claims that the qualification requirements for the VRC
position, as indicated in VR&E Letter 28-14-13, are ``on par with the
universally-recognized core competencies, duties, and responsibilities
commonly performed by a Counseling Psychologist even though such an
expectation esoterically transcends commonly acknowledged and
recognized standards regarding the curriculum, core competencies,
certification requisites, and licensing criteria applicable in the
training and qualifications of Vocational Rehabilitation Counselors/
Specialists.'' As the interim final rule does not utilize the term
``Vocational Rehabilitation Specialists,'' we will assume the commenter
is referring to the VRC position when he refers to ``Vocational
Rehabilitation Specialists.'' The qualifications for VRCs are found in
VA's Staffing Handbook (VA Handbook 5005/6, Part II, Appendix F2 (June
3, 2004)), and the knowledge they must possess is described in the
position description released with VR&E Letter 28-14-13 on February 20,
2014. As we explained in the interim final rule, VRCs ``can capably and
competently perform the required counseling, rehabilitation, and
employment assistance tasks'' and are, therefore, qualified to provide
vocational rehabilitation services and benefits to participants of the
VR&E program. 82 FR 54296. And the Federal Circuit confirmed that VRCs,
in performing their duties, ``meet VA's statutory obligations to
provide rehabilitation services to veterans.'' Conyers, 750 Fed. Appx.
at 998. Therefore, we will not make any changes based on this comment.
Second, the commenter asserts that the administrative record,
apparently referring to the administrative record of the final rule,
published in the Federal Register at 81 FR 26130, is ``tenebrous.'' The
commenter states that, since the December 16, 2003, Performance Plan
never existed, it ``evinces [VA] committed acts and omissions that are
arbitrary, capricious, and abuse of agency discretion, and otherwise
contrary to law while promulgating regulatory amendments.'' VA
acknowledged deficiencies in the record associated with the final rule
and published an interim final rule at 82 FR 54295 to address any
inaccuracies in that record and to explain the basis for the final rule
more clearly. Specifically, the preamble to the interim final rule
addressed the inaccurate statements concerning the December 16, 2003,
Performance Plan. 82 FR 54295. As explained in the interim final rule,
the performance plan referenced as being released on December 16, 2003,
was delayed and subsequently released on July 1, 2004. There was no
arbitrary or capricious act of omission, or an abuse of agency
discretion. Rather, VA simply made inadvertent misstatements in the
final rule preamble, including stating that the performance plan
demonstrated that the duties of a CP and a VRC were the same; however,
in the interim final rule, VA acknowledged and corrected all
misstatements. Indeed, the Federal Circuit concluded that ``the
Secretary's actions in promulgating the rules at issue [were not]
arbitrary and capricious.'' Conyers, 750 Fed. Appx. at 998-999. Thus,
we will not make any changes based on these comments.
Related to the second assertion, the commenter states that,
notwithstanding VA's ``insistence that failure to maintain the 02 May
2016 Final Rule's regulatory amendments will adversely affect the
processing and provisioning of Chapter 31 vocational rehabilitation
benefits, services, and assistance to Veterans, it is abundantly clear
that Veterans have long been, and will continue to be, harmed by [VA's]
failure to comply [with] APA rulemaking procedures.'' We noted in the
interim final rule that we did not have enough CPs in our national
workforce (at the time of publication, only 10 CPs were employed across
the nation) to fulfill all required duties, and that we were no longer
hiring under the CP title. Thus, to provide benefits effectively and
efficiently, we needed to amend the regulations to grant VRCs authority
previously exercised by CPs. The Federal Circuit found that the facts
sufficiently supported this grant of authority. Conyers, 750 Fed. Appx.
at 999. And, given the shortage of CPs, the Federal Circuit further
found that VA had sufficiently good cause to expedite implementation of
the regulatory amendments while completing the rulemaking process.
Therefore, we will
[[Page 45820]]
not make any changes based on this comment.
The commenter's third assertion expresses concern that VA had
``prior knowledge of deficiencies in the VR&E Program'' and references
documents that were part of the administrative record of the interim
final rule that indicate that VA knew the 38 CFR part 21 regulatory
guidance only referenced CPs and not CPs and VRCs when it discussed
certain job duties that are part of the rehabilitation process. The
commenter is correct that certain sections of the CFR referenced only
CPs. Publication of the final rule amended the CFR to include
references to VRCs as well. It is not clear to what deficiencies the
commenter refers, but we previously explained that, in the interim
final rule published at 82 FR 54295, we addressed any misstatements and
were revising the CFR to address any deficiencies. Thus, we will not
make any changes based on this comment.
The commenter offers four additional reasons for not promulgating
the final rule. The first reason concerns an email correspondence
between a Veteran's advocate and a VR&E staff member from September
2014. The commenter states that the ``narration of a Veterans advocate
contacting VR&E Service regarding the roles of CPs and VRCs is inexact
as it disingenuously fails to convey the full substance of said
interaction.'' The commenter seems to be dissatisfied with VR&E
Service's response to the Veteran's advocate. The response indicated
that we were addressing the issue with VA's Office of General Counsel
and would likely make a regulatory change as soon as possible. The
regulatory change was made in May 2016 by final rule, and, by interim
final rule in November 2017, VA corrected all inaccuracies. Therefore,
we will not make any changes based on this reason.
The second reason states ``notwithstanding the lack of any
qualifying information regarding the number of remanded cases or the
period such remands were rendered, proclaiming that because BVA
remanded VR&E cases with instructions for a CP instead of VRC to render
the determinations required by apposite regulations necessitated the
regulatory amendments initially pronounced in the 02 May 2017 Final
Rule [81 FR 26130] and fully adopted in the 17 November 2017 Interim
Final Rule is spurious reasoning.'' We explained in the interim final
rule that the Board of Veterans' Appeals (BVA) had been remanding cases
to VR&E regional offices with instructions to have a CP make a specific
decision as required by regulatory guidance, and that, consequently, we
were amending our regulations because we did not have enough CPs to
comply with the BVA's remand instructions. The Federal Circuit found
this reasoning to be rational and our actions not to be arbitrary and
capricious. Conyers, 750 Fed. Appx. at 999. Therefore, we will not make
any changes based on this reason.
The commenter asserts as third and fourth reasons that VA's
position that ``the regulations codified in Part 21 required amendment
to `clear[ ] up confusion among VR&E program participants' regarding
the roles of a CP and a VRC explicitly delegated by the apposite
regulations is beyond fallacious. It is highly obvious such `confusion'
directly resulted not from VR&E program participants' misunderstanding
or misconstruing the regulations but from [VA's] noncompliance with
Part 21.'' The commentor also mentions ``purported confused VR&E
program participants.'' We did not state or imply that VR&E's
population was uninformed or misled; rather we acknowledged a lack of
consistency between the regulatory guidance in 38 CFR part 21 and
VR&E's actual practice, and then addressed the inconsistency by
amending the regulations to more accurately reflect VR&E's practice and
clearly, concisely, and correctly state who will be making benefit
determinations. Therefore, we will not make any changes based on these
reasons.
These four reasons culminate in the commenter's statement that VA
had ``long possessed more-than-adequate knowledge of the systemic
noncompliance with Part 21 in order to reasonable facilitate reasoned
decision making and allow for a sufficient notice-and-comment period
instead of promulgating and immediately effecting the 02 May 2016 Final
Rule [81 FR 26130] upon conclusory and illusory rationale.'' Finally,
the commenter discusses three ``circumstances''--which he describes as
``mendacious stratagem,'' ``unpersuasive reasoning,'' and ``harmful
effects to Veterans''--``which further demonstrates [VA] committed acts
and omissions that were arbitrary, capricious, an abuse of agency
discretion, and otherwise contrary to law in promulgating the subject
amendments.'' He further claims that VA's ``hasty, headlong effort to
avoid scrutiny of the VR&E program continued harming Veterans through
improper evaluations, inappropriate counseling, and delayed
rehabilitation programs conducted by unqualified VRCs.'' In essence,
the commenter restates previous comments concerning what he believes to
be improper (harmful and arbitrary and capricious) acts. However, if
the rule changes were not promulgated, effective immediately, and CPs
were required to make all rehabilitation determinations, it would have
been impossible for VR&E to provide rehabilitation services to our
beneficiaries. And, as the Federal Circuit found, the Secretary of
Veterans Affairs has the discretion to determine the qualifications for
personnel providing rehabilitation services and the rules promulgated
are in accordance with law and not arbitrary and capricious. Conyers,
750 Fed. Appx. at 997-999. Ultimately, the Federal Circuit concluded,
``[b]ecause Mr. Conyers has not sufficiently shown a violation of
federal law or that the Secretary's actions were arbitrary and
capricious, we cannot now say that the Secretary was acting beyond the
scope of his authority by promulgating the November 2017 Revised Rule
with an immediate effective date.'' Id. at 999.
Therefore, based on the rationale set forth in the interim final
rule and in this document, VA is adopting the provisions of the interim
final rule as a final rule with no changes. VA appreciates the comments
submitted in response to the interim final rule.
Administrative Procedure Act
On November 17, 2017, VA published an interim final rule (82 FR
54295) and determined that there was a basis under the Administrative
Procedure Act for issuing the interim final rule with immediate effect.
VA has considered all relevant input and information contained in the
comments submitted in response to the interim final rule and has
concluded that no changes to the interim final rule are warranted. VA
is adopting the provisions of the interim final rule as a final rule
with no changes.
Executive Orders 12866, 13563 and 14094
Executive Orders 12866 (Regulatory Planning and Review) directs
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
[[Page 45821]]
14094 (Executive Order on Modernizing Regulatory Review) supplements
and reaffirms the principles, structures, and definitions governing
contemporary regulatory review established in Executive Order 12866 of
September 30, 1993 (Regulatory Planning and Review), and Executive
Order 13563 of January 18, 2011 (Improving Regulation and Regulatory
Review). The Office of Information and Regulatory Affairs has
determined that this rulemaking is not a significant regulatory action
under Executive Order 12866, as amended by Executive Order 14094. The
Regulatory Impact Analysis associated with this rulemaking can be found
as a supporting document at <a href="http://www.regulations.gov">www.regulations.gov</a>.
Paperwork Reduction Act
This final rule contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this 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 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.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
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.
Signing Authority:
Denis McDonough, Secretary of Veterans Affairs, approved and signed
this document on July 10, 2023, 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.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
General Counsel, Department of Veterans Affairs.
PART 21--VETERAN READINESS AND EMPLOYMENT AND EDUCATION
0
Accordingly, the interim final rule published in the Federal Register
on November 17, 2017, at 82 FR 54295, amending 38 CFR part 21, is
adopted as a final rule without change.
[FR Doc. 2023-15062 Filed 7-17-23; 8:45 am]
BILLING CODE 8320-01-P
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