[Federal Register: July 7, 2000 (Volume 65, Number 131)]
[Rules and Regulations]
[Page 41867-41868]
[[Page 41867]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR PARTS 3, 213, 315
RIN 3206-AI94
Appointments of Persons With Psychiatric Disabilities
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations creating a new Governmentwide excepted appointing
authority, with noncompetitive conversion to the competitive service
authorized by Executive Order 13124, for persons with psychiatric
disabilities. The regulations also abolish two excepted service
appointing authorities that relate to persons with psychiatric
disabilities, and make technical corrections.
EFFECTIVE DATES: August 7, 2000.
Conformity date: For all new appointments under 5 CFR 213.3102(gg),
agencies may begin to use the authority on August 7, 2000. All
individuals who are currently serving under the 2 authorities that will
be abolished by this regulation, 5 CFR 213.3102(h) and 213.3202(k),
must be converted to the new appointment, 5 CFR 213.3102(gg), by
January 3, 2001.
FOR FURTHER INFORMATION CONTACT: John Riedel-Alvarez or Kitty Kobert on
(202) 606-1059, TTY (202) 606-0023, or FAX (202) 606-0927.
SUPPLEMENTARY INFORMATION: The Presidential Task Force on Employment of
Adults with Disabilities was created in 1998 to address the
underemployment of people with disabilities. Its first report,
``Recharting the Course,'' recommended that OPM look into paralleling
the excepted service hiring standards of adults with psychiatric
disabilities with the excepted service hiring standards of individuals
with mental retardation and severe physical disabilities. After careful
review of the standards, we agreed they all should be the same.
As a result, we issued proposed regulations on March 17, 2000, to
amend the Civil Service Rules to reflect Executive Order 13124, June 4,
1999, permitting persons with psychiatric disabilities to be converted
to the competitive service after 2 years of satisfactory service. In
order to ensure that as many people with psychiatric disabilities are
covered as possible, we proposed creating a new excepted service
appointing authority for persons with psychiatric disabilities. To
avoid confusion and duplication, we also proposed abolishing 2 existing
excepted service appointing authorities for persons with psychiatric
disabilities that were not broadly defined.
We received comments on the regulations from 4 Federal agencies, 2
advocacy organizations, 1 State agency, and 1 individual.
Comments
One Federal agency was confused about how the authority will be
implemented based on the proposed wording. Specifically, it was unclear
whether those who have certification in subparagraph (2) are the only
ones eligible for noncompetitive conversion. It was also unclear
whether temporary appointments may be made under the (gg) authority.
Therefore, we are revising the authority to clarify a number of items
as follows:
(1) We are eliminating the subparagraphs to make it clear that
either individuals who served under temporary appointments or those who
receive certification may be appointed under the (gg) authority. After
2 years of satisfactory service under the authority, they are eligible
for noncompetitive conversion to the competitive service.
(2) On the effective date of this regulation, and through an OPM
Notice of Policy Information (being issued concurrently and available
on OPM's website, www.opm.gov), agencies may use 5 CFR 213.3102(i)(3)
to make temporary appointments of persons with psychiatric
disabilities. These temporary appointments may be used to fulfill the
requirements of the new (gg) authority. [Temporary appointments are
defined for the excepted service in 5 CFR 213.104(a)(1).] This
flexibility, and adding the language to (gg), will make it clear that
temporary appointments are not authorized under (gg), but under (i)(3).
(3) We are also clarifying that noncompetitive conversion of those
who have 2 years of satisfactory performance under (gg) is at the
discretion of the agency, rather than a right of the individual.
One Federal agency suggested that time under temporary appointments
is permissible for noncompetitive conversion to a permanent position in
the competitive service, changing the conversion requirement in 5 CFR
315.709. We did not adopt this suggestion. There is no basis for a
contention that temporary status in the excepted service confers
permanent status in the competitive service.
Two advocacy organizations favored language found in the ADA that
refers to certifying individuals under the (gg). We agree it is hard to
assess and certify that an individual with a psychiatric illness is
``likely to succeed in the performance of duties.'' Instead, we will
use the language suggested by the 2 organizations.
Two advocacy organizations also suggested adding community
rehabilitation programs to the list of those who may certify
individuals with psychiatric disabilities. We are not changing the
authority at this time; we want to research this further before
adopting it as an option for agencies.
One Federal agency recommended that OPM add language to describe
how the disabilities are evidenced, similar to language in the
abolished 5 CFR 213.3202(k). We believe a better place to provide more
information is in the ``People with Disabilities in the Federal
Government--An Employment Guide.'' OPM will update this resource guide
to add more information for agencies on psychiatric disabilities.
Implementation
Agencies must move those who are currently serving under the soon-
to-be-abolished 5 CFR 213.3102(h) and 5 CFR 213.3202(k) authorities to
the new authority, 5 CFR 213.3102(gg), as soon as possible. Those
individuals may serve the remaining time under the (gg) and be eligible
for noncompetitive conversion. A current employee's service under 5 CFR
213.3102(h) or 5 CFR 3202(k) will count toward the 2-
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year period needed for noncompetitive conversion.
OPM's Guide to Personnel Data Standards and The Guide to Processing
Personnel Actions will be updated to reflect the new changes. These
Guides are available on OPM's website, www.opm.gov.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities (including
small businesses, small organizational units, and small governmental
jurisdictions) because the regulations apply only to appointment
procedures for certain employees in Federal agencies.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.
List of Subjects in 5 CFR Parts 3, 213, and 315
Government employees.
Office of Personnel Management.
Janice R. Lachance,
Director.
Accordingly, OPM is amending parts 3, 213, and 315 of title 5, Code
of Federal Regulations, as follows:
PART 3--NONCOMPETITIVE ACQUISITION OF STATUS (RULE III)
1. The authority citation for part 3 continues to read as follows:
Authority: 5 U.S.C. 3301, 3302.
2. In Sec. 3.1, paragraph (b)(3) is added to read as follows:
Sec. 3.1 Classes of persons who may noncompetitively acquire status.
* * * * *
(b) * * *
(3) An employee with a psychiatric disability who completes at
least 2 years of satisfactory service in a position excepted from the
competitive service.
PART 213--EXCEPTED SERVICE
3. The authority citation for part 213 continues to read as
follows:
Authority: 5 U.S.C. 3301 and 3302, E.O. 10577, 3 CFR 1954-1958
Comp., p. 218; Sec. 213.101 also issued under 5 U.S.C. 2103;
Sec. 213.3102 also issued under 5 U.S.C. 3301, 3302, 3307, 8337(h)
and 8456; E.O. 12364, 47 FR 22931, 3 CFR 1982 Comp., p. 185; 38
U.S.C. 4301 et seq., and Pub. L. 105-339.
4. In Sec. 213.3102, paragraph (h) is removed and reserved.
Paragraph (gg) is added to read as follows:
Sec. 213.3102 Entire executive civil service.
* * * * *
(gg) Positions when filled by persons with psychiatric disabilities
who have demonstrated their ability to perform satisfactorily under a
temporary appointment [such as one authorized in 213.3102(i)(3)] or who
are certified as likely to be able to perform the essential functions
of the job, with or without reasonable accommodation, by a State
vocational rehabilitation counselor, a U.S. Department of Veterans
Affairs Veterans Benefits Administration or Veterans Health
Administration psychologist, vocational rehabilitation counselor, or
psychiatrist. Upon completion of 2 years of satisfactory service under
this authority, the employee can be converted, at the discretion of the
agency, to competitive status under the provisions of Executive Order
12125 as amended by Executive Order 13124.
* * * * *
5. In Sec. 213.3202, paragraph (k) is removed and reserved.
PART 315--CAREER AND CAREER-CONDITIONAL EMPLOYMENT
6. The authority citation for part 315 continues to read as
follows:
Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 3 CFR 1954-
1958 Comp., p. 218, unless otherwise noted.
Secs. 315.601 and 315.609 also issued under 22 U.S.C. 3651 and
3652.
Secs. 315.602 and 315.604 also issued under 5 U.S.C. 1104.
Sec. 315.603 also issued under 5 U.S.C. 8151.
Sec. 315.605 also issued under E.O. 12034, 3 CFR, 1978 Comp., p.
111.
Sec. 315.606 also issued under E.O. 11219, 3 CFR, 1964-1965 Comp.,
p. 303.
Sec. 315.607 also issued under 22 U.S.C. 2506.
Sec. 315.608 also issued under E.O. 12721, 3 CFR, 1990 Comp., p.
293.
Sec. 315.610 also issued under 5 U.S.C. 3304(d).
Sec. 315.611 also issued under Section 511, Pub. L. 106-117.
Sec. 315.710 also issued under E.O. 12596, 3 CFR, 1987 Comp., p.
229.
Subpart I also issued under 5 U.S.C. 3321, E.O. 12107, 3 CFR, 1978
Comp., p. 264.
7. Section 315.709 is amended by revising the section heading, the
introductory text of paragraph (a), and paragraphs (a)(1), and (b)(2)
to read as follows:
Sec. 315.709 Employees who are mentally retarded, severely physically
handicapped, or have psychiatric disabilities serving under Schedule A
appointments.
(a) Coverage. Employees appointed under Secs. 213.3102(t), (u), and
(gg) of this chapter may have their appointments converted to career or
career-conditional appointments when they:
(1) Complete 2 or more years of satisfactory service, without a
break of more than 30 days, under nontemporary Schedule A appointments.
* * * * *
(b) * * *
(2) A career employee if he or she has completed 3 years of
substantially continuous service in nontemporary appointments under
Secs. 213.3102(t), (u), or (gg) of this chapter, or has otherwise
completed the service requirement for career tenure, or is excepted
from it by Sec. 315.201(c).
* * * * *
[FR Doc. 00-17125 Filed 7-3-00; 11:20 am]
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