# UNITED STATES DEPARTMENT OF EDUCATION

# OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

**REHABILITATION SERVICES ADMINISTRATION**

#### WASHINGTON, DC 20202-2800

> **INFORMATION MEMORANDUM**
>
> **RSA-IM-09-03**
>
> **DATE: January 21, 2009**

**ADDRESSEES:** STATE VOCATIONAL REHABILITATION AGENCIES

> STATE REHABILITATION COUNCILS

REGIONAL REHABILITATION CONTINUING EDUCATION PROGRAMS

> AMERICAN INDIAN VOCATIONAL REHABILITATION SERVICES PROGRAMS
>
> CLIENT ASSISTANCE PROGRAMS
>
> PROJECTS WITH INDUSTRY
>
> CONSUMER ADVOCACY ORGANIZATIONS

**SUBJECT:** Guidance on Federal Employment of People with Disabilities

**BACKGROUND:** The federal government can provide high-quality
employment options for qualified people with disabilities. In recent
years, there have been several initiatives to increase the numbers of
people with disabilities employed in the federal sector. People with
disabilities can apply for federal jobs through the competitive
employment process available to all applicants. In addition, there is an
excepted service appointing authority that can streamline the hiring
process for people with disabilities.

**DISCUSSION:** The final regulation guiding the *Excepted Service* --
*Appointment of Persons with Disabilities and Career and
Career-Conditional Employment* is found at 5 CFR 213.3102(u). The Office
of Personnel Management (OPM) issued the final regulation on July 26,
2006; this regulation can be found at:
<http://www.opm.gov/fedregis/2006/71-072606-42246-a.htm>. The final
regulation changes the procedures that govern the employment of people
with mental retardation, severe physical disabilities, and psychiatric
disabilities. The new procedures improve the federal government's
ability to hire people with these disabilities and are designed to
remove barriers and increase employment opportunities for people with
disabilities.

> The final regulation modernizes the appointment process and represents
> a significant step towards removing barriers to the employment of
> people with disabilities in several significant ways:

-   Three separate appointing authorities have been combined into one
    streamlined appointing authority.

-   Agencies can now accept proof of disability and certification of an
    applicant's job readiness from an expanded number of entities.

-   The distinction between proof of disability and certification of job
    readiness is clarified.

> OPM also issued a questions and answers document to clarify its
> regulation. This document can be found at:
> <http://www.opm.gov/disability/appointment_disabilities.asp>.
>
> In order to clarify the Schedule A authority further, the Equal
> Employment Opportunity Commission (EEOC) published *The ABCs of
> Schedule A for the Hiring Manager: How to Hire Using the Schedule A
> Appointing Authority*. This publication was most recently revised in
> February of 2008 and can be found at:
> <http://www.jan.wvu.edu/LEAD/ABCsofSchAHiringMgr.doc>. In plain
> language, this guide contains answers to frequently asked questions
> and provides resources that can help in the hiring process.
>
> For your convenience, attached to this IM are the following documents:
> the final regulation concerning the excepted service appointments of
> people with disabilities issued by OPM, the questions and answers fact
> sheet that OPM issued to provide additional guidance, and EEOC's ABCs
> of Schedule A. Please share the attachments with those in your agency
> and others involved in the hiring process and encourage the use of the
> appointing authority for people with disabilities.
>
> Edward Anthony, Ph.D.
>
> Delegated the Authority to Perform\
> the Functions of Commissioner for the Rehabilitation Services
> Administration

Attachments

cc: Council of State Administrators of Vocational Rehabilitation

National Council of State Agencies for the Blind

\[Federal Register: July 26, 2006 (Volume 71, Number 143)\]

\[Rules and Regulations\]

\[Page 42241-42246\]

From the Federal Register Online via GPO Access \[wais.access.gpo.gov\]

\[DOCID:fr26jy06-1\]

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Rules and Regulations

Federal Register

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

This section of the FEDERAL REGISTER contains regulatory documents

having general applicability and legal effect, most of which are keyed

to and codified in the Code of Federal Regulations, which is published

under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of
Documents.

Prices of new books are listed in the first FEDERAL REGISTER issue of
each

week.

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\[\[Page 42241\]\]

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 213 and 315

RIN 3206-AK58

Excepted Service\--Appointment of Persons With Disabilities and

Career and Career-Conditional Employment

AGENCY: Office of Personnel Management.

ACTION: Final rule.

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

SUMMARY: The Office of Personnel Management (OPM) is issuing a final

regulation regarding the excepted service appointments of persons with

mental retardation, severe physical disabilities, and psychiatric

disabilities. The regulation improves the Federal Government\'s ability

to hire persons with these disabilities. It is designed to remove

barriers and increase employment opportunities for persons with

disabilities.

DATES: Effective Dates: August 25, 2006.

Conformity date: For all new appointments under 5 CFR 213.3102(u),

agencies may begin using the authority on August 25, 2006. Agencies

must convert all individuals who are serving under the two authorities

that are abolished by this regulation, 5 CFR 213.3102(t) and

213.3102(gg), to the new appointing authority, 5 CFR 213.3102(u), by

January 22, 2007.

FOR FURTHER INFORMATION CONTACT: Deidre Dessommes by telephone on 202-

606-0960, by FAX on 202-606-2329, by TDD on 202-418-3134, or by e-mail

at deidre.dessommes@opm.gov.

SUPPLEMENTARY INFORMATION: On January 11, 2005, OPM issued a proposed

regulation at 70 FR 1833 to implement changes in the three existing

Schedule A excepted service appointing authorities for persons with

mental retardation, severe physical disabilities, and psychiatric

disabilities, which agencies use to hire people with disabilities. The

proposed regulation allowed agencies to determine, on a case-by-case

basis, whether individuals with these disabilities can receive an

appointment based solely on medical documentation submitted by the

applicant. The proposal also sought to consolidate the three separate

Schedule A appointing authorities into one authority.

We received written comments from 17 agencies, 12 public service

organizations, 7 Federal employees, and 35 individuals. In addition, we

held a teleconference, at the request of the Office of Management and

Budget, on February 15, 2005, with 16 agencies to discuss specific

operational issues agencies had regarding the proposal. While many of

these comments generally supported the proposed changes, 9 agencies, 1

public service organization, and 5 individuals expressed serious

concerns over the broadened certification and determination of

disability procedures and the potential liability agencies may incur as

a result of these changes. After reviewing the comments, we are

especially concerned that agency personnel lack the expertise to make

medical disability determinations. This may result in inconsistent

determinations across and within agencies and unanticipated inequities

to disabled individuals; people who are not disabled could be appointed

at the expense of those for whom these authorities were intended. After

careful consideration of these comments, we determined that some of the

proposed changes would result in unforeseen burdens and difficulties

being imposed on hiring agencies as well as disabled individuals and

have modified the final regulation accordingly.

The final regulation modernizes the appointment processes for

people with disabilities in several significant ways:

We are consolidating the three separate Schedule A

appointing authorities, 5 CFR 213.3102(t) (mental retardation),

213.3102(u) (severe physical disabilities), and 213.3102(gg)

(psychiatric disabilities) into one appointing authority, 5 CFR

213.3102(u).

We are expanding agency acceptance of proof of disability

and an applicant\'s job readiness certification to include broader types

of certifying entities. Agencies may accept proof and certification

from a licensed medical professional (e.g., a physician or other

medical professional duly certified by a State, the District of

Columbia, or a U.S. territory, to practice medicine); a licensed

vocational rehabilitation specialist (i.e., State or private); or any

Federal agency, State agency, or agency of the District of Columbia or

a U.S. territory that issues or provides disability benefits.

We are clarifying the employment options for appointments

under this authority. In cases where an applicant does not have

certification of job readiness, an agency may appoint the individual to

a temporary appointment to determine the applicant\'s readiness for

continued employment.

We are clarifying that agencies may also make temporary

(for positions not expected to last more than 1 year), time-limited and

permanent appointments under this authority.

We are clarifying the distinction between proof of

disability and certification of job readiness (i.e., the applicant is

likely to succeed in performing the duties of the position for which he

or she is applying). This will help agencies make proper appointments

and lessen confusion expressed by commenters.

Comments

In addition to the concerns noted in the previous paragraphs, OPM

received comments on other aspects of the proposed regulation. We

categorized the comments by the following areas: Consolidation of

appointing authorities, proof of disability, certification of job

readiness, employment options, noncompetitive conversion, and

miscellaneous comments.

Consolidation of Appointing Authorities

OPM received comments from 14 agencies, 2 organizations, and 3

individuals regarding the consolidation of the three appointing

authorities into one. Most of these comments favored streamlining these

appointing authorities. One agency commented that the consolidation

will cause an additional workload to agencies; another agency asked OPM

to provide guidance on converting individuals currently serving on the

Sec. 213.3102(t) and (gg) appointments to the Sec. 213.3102(u)

authority. We are unclear

\[\[Page 42242\]\]

how combining the authorities will increase agency workload. We are

providing additional guidance on executing the final regulation in the

\`\`Implementation\'\' section of this final regulation\'s Supplemental

Information and will update the Guide to Processing Personnel Actions

accordingly.

Another agency asked whether OPM considered separating the Sec.

213.3102(gg) authority for appointing persons with psychiatric

disabilities from the other two because such disabilities are hidden

and difficult to detect. We are not sure how discerning a disability

relates to the type of appointing authority under which an agency will

appoint an individual. However, we believe streamlining the three

separate authorities under one appointing authority will prove to be

less confusing procedurally for the hiring agencies as well as help in

reducing the number of appointing authorities that currently exist.

One agency stated the consolidation of authorities could negatively

impact individuals currently appointed under three separate authorities

during a reduction in force (RIF). We understand the agency\'s concern;

however, depending on the actual circumstances of the restructuring,

consolidation could have either a positive or negative impact compared

with the current appointing authorities\' impact. Agencies have

discretion in determining which positions to abolish, as well as

discretion to provide competing excepted service employees with certain

assignment rights. (See 5 CFR part 351 for details.)

One individual opposed the consolidation on the grounds that it

will impact prior discrimination claims brought against agencies and

therefore may have a negative economic impact on these agencies. We

believe that consolidation will have no impact on previous

discrimination claims. The basis for these claims will not be affected

by the combining of three authorities into one.

Proof of Disability

Proof of disability is required for appointments of persons with

mental retardation, severe physical disabilities, or psychiatric

disabilities. Previously, past guidance limited proof of disability to

State Vocational Rehabilitation Agencies or the Department of Veterans

Affairs (VA); agencies did not have the discretion to make

determinations without the certification. It was also unclear what

\`\`certification\'\' referred to in the language of the appointing

authority. The final regulation allows agencies to accept as proof of

disability documentation from a licensed medical professional (e.g., a

physician or other medical professional duly certified by a State, the

District of Columbia, or a U.S. territory, to practice medicine); a

licensed vocational rehabilitation specialist (i.e., State or private);

or any Federal agency, State agency, or agency of the District of

Columbia or a U.S. territory that issues or provides disability

benefits.

One agency and one individual asked what level of agency authority

is responsible for making determinations of the disability and of the

likelihood that applicants are likely to succeed in performing the

duties of the position. In the final regulation, we decided against

providing agencies the option of making these determinations based upon

comments we received\--in sum, that agency personnel lack the expertise

necessary to make medical disability determinations.

One individual asked whether a disabled person could submit the

same documentation or certification more than once when applying for a

position under this authority. We are not imposing any requirements

concerning the recency of the documentation (provided the information

is accurate) or any limitations on the number of times an applicant may

submit such documentation.

Another individual stated that requiring certification by

applicants already employed on a permanent Schedule A excepted service

appointment is repetitive, burdensome and discriminatory. The final

regulation does not require certification of current Schedule A

employees. To clarify this, we will address it further in the

\`\`Implementation\'\' section of this preamble.

An agency and a public service organization commented that the

requirement that applicants with life-long or well-established

disabilities submit documentation places a burden on these individuals

because their documentation may not be available. We agree in part that

this requirement may result in a burden on some individuals. However,

agencies must ensure that individuals seeking appointment under this

authority meet the intent of Executive Orders 12125 and 13124. In

addition, by expanding the certification resources, we believe agencies

will hire more individuals which will lead to expanded job

opportunities for persons with disabilities.

Certification of Job Readiness

A public service organization asked that we clarify the processes

for documenting an applicant\'s disability and his/her ability to

perform the duties of the position. As stated in a previous paragraph,

the previous guidance was confusing in regards to both certifications.

The final regulation makes a distinction between (1) proof of an

applicant\'s disability, and (2) certification of the applicant\'s job

readiness. As noted in a previous paragraph, proof of disability is

required for all appointments of persons with mental retardation,

severe physical disabilities, or psychiatric disabilities. The final

regulation allows agencies to accept as proof of disability

documentation from a licensed medical professional (e.g., a physician

or other medical professional duly certified by a State, the District

of Columbia, or U.S. territory, to practice medicine), a licensed

vocational rehabilitation specialist (i.e., State or private); or any

Federal agency, State agency, or agency of the District of Columbia or

a U.S. territory that issues or provides disability benefits.

Certification of job readiness is a determination that a disabled

applicant is likely to succeed in the performance of the duties of the

position he or she is seeking. Certification of job readiness is

required for appointments of persons with mental retardation, severe

physical disabilities, or psychiatric disabilities. The same entities

listed in a previous paragraph that may provide proof of disability may

also certify an individual\'s job readiness. In addition, agencies may

give individuals a temporary appointment in order to determine the

applicant\'s job readiness, in lieu of job readiness certification.

Agencies may convert individuals serving on a temporary appointment

under Sec. 213.3102(u) to a time-limited or permanent appointment

under Sec. 213.3102(u) at any time during the temporary appointment.

Operational aspects of documentation will remain with the agencies.

We believe it is the agencies\' responsibility to ensure procedures are

followed and that proper appointing authorities are used.

One organization suggested modifying Sec. 213.3102(u)(ii),

consistent with sections 501 and 504 of the Rehabilitation Act, to

state that certification of whether an individual is likely to succeed

in the performance of a job is made \`\`with or without reasonable

accommodation.\'\' We are not adopting this suggestion because agencies

already are required to make reasonable accommodation determinations

for the work environment.

\[\[Page 42243\]\]

Two agencies recommended that OPM allow instructors, teachers,

professors and other education professionals to certify an individual\'s

ability to perform the duties of the job. We are not adopting this

suggestion on the basis that individuals in these professions may not

be specifically trained or licensed to make employability

determinations.

One individual suggested that Federal agencies should require

certification from a State Vocational Rehabilitation Agency (SVRA). We

disagree; entities other than SVRAs (e.g., VA, private Vocational

Rehabilitation Agencies, etc.) provide certifications of job readiness.

In addition, in many cases SVRA certification is time-consuming and

places an unnecessary burden on individuals seeking Federal employment.

Three agencies and a public service organization commented that

agencies may lack the expertise to determine whether applicants are

likely to successfully perform the duties of a particular position. An

agency asked what the impact would be if an agency did not agree with

another agency\'s certification of job readiness. As stated in a

previous paragraph, we decided against giving agencies the discretion

to interpret an individual\'s certification of job readiness, which may

result in inconsistent determinations across and within agencies and

unanticipated inequities to disabled individuals. As noted in a

previous paragraph, agencies have the discretion to decide from which

entities they will accept certification of job readiness.

Another agency recommends the final regulation expands on the

criteria that agencies should use to predict probable job success. We

believe that the hiring agency, rather than OPM, is in the best

position to determine job success for the position it wants to fill.

Employment Options

One agency asked that OPM clarify the temporary and other

employment options. We agree clarification is needed. Under the new

Sec. 213.3102(u) authority, an agency may make:

\--A temporary appointment for an individual who has proof of disability

but lacks certification for job readiness. Using some type of temporary

appointment in lieu of certification of job readiness has long been

available to agencies. We are continuing this practice but clarifying

it in the context of the revised appointing authority. The individual

may work under the Sec. 213.3102(u) appointment until the agency

determines that the individual is able to perform the duties of the

position, or the individual gains the certification from one of the

entities listed in the appointing authority. Once certification is

obtained, the agency may then appoint the individual to a time-limited

or permanent appointment under the Sec. 213.3102(u) authority. If the

individual does not gain certification during the appointing authority

timeframe, or does not demonstrate satisfactorily his or her ability to

perform the duties of the job, the agency must separate the employee.

(See 5 CFR 213.104 for the definition and restrictions on temporary

appointments in the excepted service.)

\--A temporary appointment of an individual who provides proof of a

disability and certification for job readiness, when the duties of the

position do not require it to be filled on a permanent basis.

\--A time-limited appointment of an individual who provides proof of

disability and certification for job readiness, when the duties of the

position do not require it to be filled on a permanent basis. (See 5

CFR 213.104 for the definition of time-limited.)

\--A permanent appointment of an individual who provides proof of

disability and certification for job readiness. However, agencies are

cautioned that the intent of Executive Orders 12125 and 13124

concerning employment of persons with mental retardation, severe

physical disabilities, and psychiatric disabilities is to permit these

individuals to obtain \`\`civil service competitive status.\'\' Civil

service competitive status is obtained through conversion to the

competitive service rather than remaining in the excepted service.

The noncompetitive conversion of individuals occurs after the

individual serves at least 2 years under a time-limited or permanent

appointment under the revised Sec. 213.3102(u) authority. Time served

in a temporary appointment under Sec. 213.3102(u) described in a

previous paragraph is creditable toward the 2 years required for

conversion. Time served in a temporary appointment in the competitive

or excepted service prior to an appointment under Sec. 213.3102(u) is

also creditable, as long as the position is in the same line of work as

the position filled by the time-limited or permanent Sec. 213.3102(u)

appointment.

One agency commented that the process requiring certification of a

disability for a temporary appointment is overly bureaucratic and

presents a barrier to employment of disabled individuals. We disagree

with this comment; agencies need proof that an applicant indeed has a

disability in order to ensure the individual is eligible for

appointment.

An agency asked whether these regulations impose a limitation on

the number of times a person can be employed under a temporary

appointment. The reference to time limitations on temporary

appointments is found in Sec. 213.104; this final regulation makes no

change to that section.

An agency commented that the proposed regulation created an extra

step to hire individuals with disabilities on a temporary appointment

if they have already demonstrated the ability to perform the job duties

in a satisfactory manner. The agency suggested individuals with

disabilities should be hired on a permanent basis through which the 1st

year of service could serve as the trial period. OPM does not agree and

is retaining the temporary employment option for those instances when

an agency needs to determine an individual\'s job readiness.

An agency suggested that the regulation include a statement that

applicants may be appointed to temporary appointments under this

authority with noncompetitive conversion to a permanent excepted

service appointment without further certification of job readiness. OPM

agrees and revised the new, consolidated authority to clarify this

point.

An individual asked whether a temporary appointment is required for

employees already in the Federal workforce who are seeking permanent

employment under this authority. The temporary employment option is not

intended for individuals already in the Federal workforce who have

already demonstrated their ability to perform the duties of a

particular job.

Noncompetitive Conversion

Two individuals commented that the 2-year requirement for

noncompetitive conversion to the competitive service is excessive. One

individual suggested we shorten this time period to 1 year. Executive

Orders 12125 and 13124 make it very clear that the 2 years is required

for conversion to the competitive service.

An agency suggested that conversion to a career-conditional

appointment should be a mandatory condition of this hiring authority.

OPM disagrees on the grounds that conversion to a career or

\[\[Page 42244\]\]

career-conditional appointment is not an employee right. Agencies

maintain the discretion to determine whether an employee is ready for

placement in the permanent career workforce. However, as noted in a

previous paragraph, we caution agencies about the intent of Executive

Orders 12125 and 13124 with regard to conversion of these individuals

to the competitive service.

One agency suggested that OPM specify in the final regulation that

conversions to the competitive service can be made after the individual

completes 2 or more years of satisfactory service under either a

permanent or temporary appointment under this authority. We disagree.

It is longstanding practice for appointing authorities that contain

conversion provisions, both in the excepted and competitive services,

to require individuals to serve on nontemporary appointments before

conversion. We see no reason to change this policy. However, we are

adding clarification in section 213.3102(u) concerning the applicable

appointments (time-limited or permanent) required for conversion.

Miscellaneous Comments

An agency and a public service organization commented that the term

\`\`mental retardation\'\' is outdated and recommended we replace it
with

\`\`persons with a cognitive disability\'\' or \`\`developmental

disability.\'\' OPM recognizes the term \`\`mental retardation\'\' is

considered outdated, but the term is used in the authorizing Executive

Order 12125, dated March 15, 1979. We are reluctant to change a term

used in the Executive order.

An individual suggested that OPM change the term \`\`disabilities\'\'

to \`\`medical conditions.\'\' OPM is not adopting this suggestion
because

\`\`medical conditions\'\' is a broader term that is undefined and
general.

Two agencies suggested that OPM establish disability program points

of contact (POCs) to provide technical guidance to agencies and to

update contact information on the OPM Web site. OPM agrees and intends

to establish one or more POCs within our Human Capital Leadership and

Merit System Accountability Division.

Five agencies and one individual requested clarification and

definition with respect to the following terms: \`\`certain
conditions;\'\'

\`\`severe physical disabilities;\'\' and \`\`certification.\'\' OPM
does not

use the phrase \`\`certain conditions\'\' in the final regulation. We
used

it in the supplementary portion of the proposed regulation to generally

mean instances in which a hiring agency could make determinations of

medical disabilities or employability. We are not defining \`\`severe

physical disabilities\'\' on the basis that doing so may limit

flexibility and because such a definition or finite list may exclude

future conditions from consideration under this authority. We agree the

term \`\`certification\'\' needs clarification. For the purposes of this

regulation, we made a distinction between a determination of disability

and a certification that a disabled applicant can perform the duties of

the position.

Three public service organizations and five individuals asked

whether individuals with specific conditions such as hearing

impairments, kidney disease, epilepsy, learning disabilities, or

cognitive deficits, or survivors of traumatic and/or acquired brain

injuries would be included under this regulation. In addition, a public

service organization commented that the regulation will allow OPM the

opportunity to clarify the full coverage of individuals with

disabilities. As stated in a previous paragraph, we are not providing a

list of qualifying conditions for inclusion under this subpart.

Further, there is no intent to specifically include or exclude any one

particular type of disability.

Four agencies and two individuals commented that the regulation

should address disabled employees currently in the Federal workforce

who are looking for upward mobility and career progression. Because the

appointing authority is aimed at initial entry to Federal employment,

we are not adopting this suggestion.

Two individuals commented that this regulation should offer a

hiring priority and/or other incentives to attract individuals with

disabilities to the Federal Government. We are not adopting this

suggestion because hiring priorities are established by statute or

Executive order.

One agency asked whether OPM will require agencies to submit annual

reports describing their use of this authority. There is no such

requirement in the final regulation, however, OPM captures the

statistical data on the use of the Schedule A appointing authorities in

the Central Personnel Data File. This will continue with the

implementation of the new regulation. OPM monitors, on an ad hoc basis,

the use of all Federal Government-wide appointing authorities,

including the Schedule A authorities for the employment of individuals

with disabilities.

One individual commented that the regulation does not hold Federal

agencies accountable for using this authority nor does it encourage

them to employ persons with disabilities. By law, agencies have broad

discretion in terms of how they fill their positions. The decision to

hire, and under what authority they do so, rests with the agency. In

addition, the Code of Federal Regulations is not the proper document to

include anything that is not regulatory in nature. We do believe the

modernized certification flexibilities provide encouragement for

agencies to increase their use of this authority.

An agency suggested that OPM should ensure that the number of

persons with disabilities in the Federal workforce increases. Agencies

are responsible for making their hiring decisions, based upon their

resources and human capital needs. OPM\'s role is to provide agencies

with the flexibilities for doing so and encourage their use.

Implementation

Agencies must move those who are currently serving under 5 CFR

213.3102(t) and 213.3102(gg) authorities to the new authority, 5 CFR

213.3102(u), as soon as possible. Those individuals must serve under

the same time limits as the appointment from which they are being

moved. They are eligible for noncompetitive conversion as long as the

original appointment (from which they are converting) is not a

temporary one. A current employee\'s service under 5 CFR 213.3102(u) and

213.3102(gg), regardless of whether the appointment is temporary or

not, will count toward the 2-year period needed for noncompetitive

conversion.

For those individuals who are currently serving under 5 CFR

213.3102(u), their appointments are unchanged.

Proof of disability and certification of job readiness are not

required for individuals already serving in appointments under Sec.

213.3102(u). They are also not required of those who will move from

Sec. Sec. 213.3102(t) and 213.3102(gg) to the revised Sec.

213.3102(u) authority.

We will update OPM\'s Guide to Personnel Data Standards and the

Guide to Processing Personnel Actions to reflect the new changes. These

Guides are available on OPM\'s Web site, http://www.opm.gov.

Regulatory Flexibility Act

I certify that this regulation will not have a significant economic

impact on a substantial number of small entities because it affects

only certain potential applicants and Federal employees.

\[\[Page 42245\]\]

Executive Order 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 213 and 315

Government employees, Reporting and recordkeeping requirements.

Office of Personnel Management.

Linda M. Springer,

Director.

0

Accordingly, OPM is amending 5 CFR part 213 as follows:

PART 213\--EXCEPTED SERVICE

0

1\. The authority citation for part 213 is revised to read as follows:

Authority: 5 U.S.C. 3161, 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. 13318, 47 FR 22931, 3 CFR 1982 Comp., p.

185; 38 U.S.C. 4301 et seq.; Pub. L. 105-339, 112 Stat 3182-83; and

E.O. 13162.

0

2\. Amend Sec. 213.3102 by removing and reserving paragraphs (t) and

(gg), and by revising paragraph (u) to read as follows:

Sec. 213.3102 Entire executive civil service.

\* \* \* \* \*

\(u\) Appointment of Persons with Mental Retardation, Severe Physical

Disabilities, or Psychiatric Disabilities.

\(1\) Purpose. An agency may appoint, on a permanent, time-limited,

or temporary basis, a person with mental retardation, a severe physical

disability, or a psychiatric disability according to the provisions

described below.

\(2\) Proof of disability. (i) An agency must require proof of an

applicant\'s mental retardation, severe physical disability, or

psychiatric disability prior to making an appointment under this

section.

\(ii\) An agency may accept, as proof of an individual\'s mental

retardation, severe physical disability, or psychiatric disability,

appropriate documentation (e.g., records, statements, or other

appropriate information) issued from a licensed medical professional

(e.g., a physician or other medical professional duly certified by a

State, the District of Columbia, or a U.S. territory, to practice

medicine); a licensed vocational rehabilitation specialist (i.e., State

or private); or any Federal agency, State agency, or an agency of the

District of Columbia or a U.S. territory that issues or provides

disability benefits.

\(3\) Certification of job readiness. (i) An agency may accept

certification that the individual is likely to succeed in the

performance of the duties of the position for which he or she is

applying. Certification of job readiness may be provided by any entity

specified in paragraph (u)(2)(ii) of this section.

\(ii\) In cases where certification has not been provided, the hiring

agency may give the individual a temporary appointment under this

authority to determine the individual\'s job readiness. The agency may

also accept, at the agency\'s discretion, service under another type of

temporary appointment in the competitive or excepted services as proof

of job readiness.

\(4\) Permanent or time-limited employment options. (i) An agency may

make a permanent or time-limited appointment based upon:

\(A\) Proof of disability; and

\(B\) A certification of job readiness, or demonstration of job

readiness through a temporary appointment.

\(5\) Temporary employment options. An agency may make a temporary

appointment based upon proof of disability specified in paragraph

(u)(2) of this section when:

\(i\) It is necessary to observe the applicant on the job to

determine whether the applicant is able or ready to perform the duties

of the position. When an agency uses this option to determine an

individual\'s job readiness, the hiring agency may convert the

individual to a permanent appointment whenever the agency determines

the individual is able to perform the duties of the position; or

\(ii\) The individual has a certification of job readiness and the

work is of a temporary nature.

\(6\) Noncompetitive conversion to the competitive service. (i) An

agency may noncompetitively convert to the competitive service an

employee who has completed 2 years of satisfactory service in a

nontemporary appointment under this authority in accordance with the

provisions of Executive Order 12125 as amended by Executive Order 13124

and Sec. 315.709 of this chapter.

\(ii\) An agency may credit time spent on a temporary appointment

specified in paragraph (u)(5) of this section towards the 2-year

requirement.

\* \* \* \* \*

PART 315\--CAREER AND CAREER-CONDITIONAL EMPLOYMENT

0

3\. The authority citation for part 315 is revised to read as follows:

Authority: 5 U.S.C. 1302, 3301, and 3302; E.O. 10577. 3 CFR,

1954-1958 Comp. p. 218, unless otherwise noted; and E.O. 13162.

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, 113 Stat. 1575-76. Sec. 315.708 also issued under E.O.

13318\. 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.

Subpart B\--The Career-Conditional Employment System

0

4\. In Sec. 315.201 revise paragraph (b)(1)(xii) to read as follows:

Sec. 315.201 Service requirement for career tenure.

\* \* \* \* \*

\(b\) \* \* \*

\(1\) \* \* \*

\(xii\) The date of nontemporary appointment under Schedule A, Sec.

213.3102(u) of this chapter, of a person with mental retardation, a

severe physical disability, or a psychiatric disability, provided the

employee\'s appointment is converted to a career or career-conditional

appointment under Sec. 315.709;

\* \* \* \* \*

Subpart G\--Conversion to Career or Career-Conditional Employment

From Other Types of Employment

0

5\. Revise Sec. 315.709 to read as follows:

Sec. 315.709 Appointment for Persons With Disabilities.

\(a\) Coverage. An employee appointed under Sec. 213.3102(u) of this

chapter may have his or her appointment converted to a career or

career-conditional appointment when he or she:

\(1\) Completes 2 or more years of satisfactory service, without a

break of more than 30 days, under a nontemporary appointment under

Sec. 213.3102(u);

\(2\) Is recommended for such conversion by his or her supervisor;

\(3\) Meets all requirements and conditions governing career and

career-conditional appointment except those requirements concerning

competitive selection from a register and medical qualifications; and

\(4\) Is converted without a break in service of one workday.

\(b\) Tenure on conversion. An employee converted under paragraph (a)

of this section becomes:

\[\[Page 42246\]\]

\(1\) A career-conditional employee, except as provided in paragraph

(b)(2) of this section; or

\(2\) A career employee if he or she has completed 3 years of

substantially continuous service in a temporary appointment under Sec.

213.3102(u) of this chapter, or has otherwise completed the service

requirement for career tenure, or is excepted from it by Sec.

315.201(c).

\(c\) Acquisition of competitive status. A person whose employment is

converted to career or career-conditional employment under this section

acquires a competitive status automatically on conversion.

\[FR Doc. 06-6464 Filed 7-25-06; 8:45 am\]

BILLING CODE 6325-39-P

####  Excepted Service-Appointment of Persons with Disabilities and Career and Career-Conditional Employment Regulation

> Questions and Answers
>
> The regulations guiding the Excepted Service \--Appointment of Persons
> with Disabilities and Career and Career-Conditional Appointment are
> found in the Code of Federal Regulations (CFR). The citation is 5 CFR
> 213.3102(u). The questions and answers listed here are not meant to be
> a substitute for reading the regulations. We hope this information
> will be helpful to your agency\'s managers, Human Resources offices
> and Special Program Coordinators.

-   [OVERVIEW](http://www.opm.gov/disability/appointment_disabilities.asp#1)

-   [APPLICATION
    PROCEDURES](http://www.opm.gov/disability/appointment_disabilities.asp#2)

-   [PROOF OF DISABILITY/CERTIFICATIONOF JOB
    READINESS](http://www.opm.gov/disability/appointment_disabilities.asp#3)

-   [ELIGIBILITY
    REQUIREMENTS](http://www.opm.gov/disability/appointment_disabilities.asp#4)

-   [SELECTION OF INDIVIDUALS WITH
    DISABILITIES](http://www.opm.gov/disability/appointment_disabilities.asp#5)

-   [APPOINTMENT
    TYPE](http://www.opm.gov/disability/appointment_disabilities.asp#6)

-   [TEMPORARY
    APPOINTMENTS](http://www.opm.gov/disability/appointment_disabilities.asp#7)

-   [NON-TEMPORARY
    APPOINTMENTS](http://www.opm.gov/disability/appointment_disabilities.asp#8)

-   [REDUCTION-IN-FORCE](http://www.opm.gov/disability/appointment_disabilities.asp#9)

-   [SAFEGUARDING CONFIDENTIAL
    INFORMATION](http://www.opm.gov/disability/appointment_disabilities.asp#10)

-   [CONVERSION -TEMPORARY 5 CFR 213.3102(U) APPOINTMENT TO PERMANENT 5
    CFR 213.3102(U)
    APPOINTMENT](http://www.opm.gov/disability/appointment_disabilities.asp#11)

-   [CONVERSION -PERMANENT 5 CFR 213.3102(U) APPOINTMENT TO CAREER OR
    CAREER-CONDITIONAL
    APPOINTMENT](http://www.opm.gov/disability/appointment_disabilities.asp#12)

##### Overview

> **Q. Where can the new regulation be found?**
>
> A. The Federal Register has posted the new regulation on the Federal
> Register Web site at <http://origin.www.gpoaccess.gov/fr/> and the
> Office of Personnel Management (OPM) has posted it on its website at
> [www.opm.gov/fedregis](http://www.opm.gov/fedregis/) and
> [www.opm.gov/disability](http://www.opm.gov/disability). OPM provided
> notification to Federal agencies through the Chief Human Capital
> Officer Council.
>
> **Q. What is the effective date of the new regulation?**
>
> A. The date the regulation goes into effect is 30 days after
> publication in the Federal Register.
>
> **Q. Why are the rules on employment of individuals with disabilities
> changing?**
>
> A. OPM is changing the procedures in support of the President\'s \"New
> Freedom Initiative\" introduced in 2001, which encourages Federal
> agencies to consider employment opportunities for people with
> disabilities. The regulation improves the Federal Government\'s
> ability to hire persons with these disabilities. It is designed to
> remove possible barriers and increase employment opportunities for
> persons with disabilities.
>
> **Q. What are the new changes?**
>
> A. The regulation modernizes the appointment processes in several
> significant ways:

-   The appointing authorities for persons with disabilities (excepted
    service) Schedule A appointing authorities 5 CFR 213.3102(t) (mental
    retardation), (u) (severe physical disabilities), and (gg)
    (psychiatric disabilities) are combined into one streamlined
    authority, 5 CFR 213.3102(u).

-   Agencies may accept proof of disability and certification of job
    readiness from an expanded number of entities, i.e., a licensed
    medical professional (e.g., a physician or other medical
    professional duly certified by a State, the District of Columbia, or
    a U.S. territory, to practice medicine); a licensed vocational
    rehabilitation specialist (i.e., State or private); or any Federal
    agency, State agency or agency of the District of Columbia or a U.S.
    territory that issues or provides disability benefits.

-   The distinction between proof of disability and certification of job
    readiness is clarified (i.e., documentation of mental retardation,
    severe physical disability or psychiatric disability vs.
    certification the applicant is likely to succeed in performing the
    duties of the position for which he or she is applying).

-   The temporary employment options for appointments under the new
    authority, 5 CFR 213.3102(u), are clarified. Agencies may make
    temporary (for positions not expected to last more than 1 year),
    time-limited or permanent appointments under this authority.

-   The employment options for appointments under this authority are
    clarified. In cases where an applicant does not have certification
    of job readiness, an agency may appoint the individual to a
    temporary appointment to determine the applicant\'s readiness for
    continued employment

> **Q. Why is the term \"mental retardation\" used in the new regulation
> instead of cognitive disability, develop mental disability, or
> intellectual disability?**
>
> A. OPM used this term in the new regulation because it is the official
> terminology used in the authorizing Executive Order 12125, dated March
> 15, 1979.
>
> **Q. Why should agencies consider using this hiring authority?**
>
> A. Agencies should use this hiring authority for a number of good
> reasons:

-   Individuals with disabilities are a source of excellent applicants.

-   No public notice is required. This may shorten the time to hire a
    well qualified candidate

-   It can support an agency\'s Career Patterns initiative.
    Technological advances and growing emphasis on telework may dovetail
    with the needs of many applicants with disabilities.

-   Agencies don\'t have to clear surplus employee lists prior to using
    the appointing authority.

##### Application Procedures

> **Q. How does a person with mental retardation, severe physical
> disability or psychiatric disability apply for Federal jobs the new
> regulations?**
>
> A. Individuals with disabilities may be considered for excepted
> service positions under the 213.3102(u) appointment authority by
> reviewing vacancy announcements posted on
> [www.usajobs.opm.gov](http://www.usajobs.opm.gov/) and submitting
> resumes for positions that are of interest to the applicant, or they
> may contact agency Special Placement Coordinator(s) in the agency for
> which they wish to work. (Special Placement Coordinators are involved
> with the hiring, placement, and advancement of individuals with
> disabilities at their agency; a list of these coordinators can be
> found at <http://apps.opm.gov/sppc_directory/>). Because appointments
> under 5 CFR 213.3102(u) are excepted service appointments, agencies
> may accept resumes without posting job notices. Applicants should
> indicate \"5 CFR 213.3102(u)\" on their resumes for both application
> methods.
>
> **Q. In what other ways may a person with disabilities apply for
> Federal jobs?**
>
> A.  OPM provides information about the application process at
> [www.opm.gov/disability/appempl_3-11.asp](http://www.opm.gov/disability/appempl_3-11.asp). 
> There are several other application options available to applicants
> with disabilities.  For example:

-   Competitive Appointments.  Many applicants with disabilities find
    employment through standard competitive procedures in the same
    manner as individuals without disabilities. 
    ([www.usajobs.opm.gov](http://www.usajobs.opm.gov/))

-   Student Employment Programs.  This program helps Federal employers
    find the right people to fill current and future hiring needs.  It
    also gives students the opportunity to get hands-on experience. 
    This program has two major components -- the Student Temporary
    Employment Program (STEP) and the Student Career Experience Program
    (SCEP). 
    ([www.usajobs.opm.gov/students.asp](http://www.usajobs.opm.gov/students.asp))

-   Federal Career Intern Program.  This program is designed to help
    agencies recruit and attract exceptional individuals into a variety
    of occupations.  It was created under [Executive Order
    13162](http://www.opm.gov/EO/13162.asp), and is intended for
    positions at grade levels GS-5, 7, and 9.  In general, individuals
    are appointed to a 2-year internship.  Upon successful completion of
    the internships, the interns may be eligible for permanent placement
    within an agency. 
    ([www.opm.gov/careerintern/](http://www.opm.gov/careerintern/))

-   Veterans Appointments.  There are a number of authorities available
    to assist veterans who are seeking, or wish to change, Federal
    employment including, Veterans Recruitment Appointment (VRA), 30% or
    More Disabled Veterans Program, and Veterans Employment Opportunity
    Act (VEOA) appointments.  See OPM\'s VetGuide at
    http://www.opm.gov/veterans/vetguide.pdf

##### Proof of Disability/Certification of Job Readiness

> **Q. What is proof of disability documentation?**
>
> A. The following is a list of some examples of documents agencies may
> accept as proof of mental retardation, a severe physical disability or
> a psychiatric disability. Ultimately, it is the agency\'s choice what
> type(s) of documentation will be acceptable:

-   Statements or letters on a physician\'s/medical professional\'s
    letterhead stationary.

-   Statements, records or letters from a Federal Government agency that
    issues or provides disability benefits.

-   Statements, records or letters from a State Vocational
    Rehabilitation Agency counselor.

-   Certification from a private Vocational Rehabilitation or other
    Counselor that issues or provides disability benefits.

> As the regulation is implemented and used by agencies, this list may
> grow to include other types of certification. OPM will issue
> additional guidance to agencies on what constitutes \"appropriate
> documentation\" on an \"as needed\" basis.
>
> **Q. Must applicants with disabilities provide proof of his/her
> disability?**
>
> A. Yes, proof of the disability is required for appointments of
> persons with mental retardation, severe physical disabilities, or
> psychiatric disabilities. This regulation allows agencies to accept as
> proof of disability documentation from a licensed medical professional
> (e.g., a physician or other medical professional duly certified by a
> State, the District of Columbia, or a U.S. territory, to practice
> medicine); a licensed vocational rehabilitation specialist (i.e.,
> State or private); or any Federal agency, State agency, or an agency
> of the District of Columbia or a U.S. territory that issues or
> provides disability benefits.
>
> **Q. What is certification of job readiness?**
>
> A. The certification of job readiness is a determination that
> applicants with disabilities are likely to succeed in the performance
> of the duties of the position he or she is seeking. Certification of
> job readiness is required for appointments of persons with mental
> retardation, severe physical disabilities, or psychiatric disabilities
> unless the hiring agency appoints the individual to a temporary
> appointment in lieu of the job readiness certification ([see following
> Q &
> A](http://www.opm.gov/disability/appointment_disabilities.asp#qa)).
> The same entities that may provide proof of disability may also
> certify an individual\'s job readiness.
>
> **Q. Who may certify disability and job readiness?**
>
> A. OPM expanded the types of entities from which an agency may accept
> proof of disability and certification of an applicant\'s job
> readiness. Agencies may accept proof and certification from a licensed
> medical professional (e.g., a physician or other medical professional
> duly certified by a State, the District of Columbia, or a U.S.
> territory, to practice medicine); a licensed vocational rehabilitation
> specialist (i.e., state or private); or any Federal agency; State
> agency, or agency of the District of Columbia or a U.S. territory that
> issues or provides disability benefits.
>
> **Q. Can a person with a disability submit the same documentation or
> certification more than once when applying for a position under this
> authority? Must the documentation be dated within a specific
> timeframe?**
>
> A. Provided the information is accurate, there are no OPM imposed
> limitations on the number of times an applicant may submit such
> documentation or requirements concerning the timeframe, which the
> documentation must be dated.

##### Eligibility Requirements

> **Q. What are the eligibility requirements for an applicant to be
> appointed under 5 CFR 213.3102(u)?**
>
> A. Applicants with disabilities must have mental retardation, a severe
> physical disability or a psychiatric disability; have proof of the
> disability; certification of job readiness (if not hired on a
> temporary appointment in lieu of the job readiness certification); and
> meet all required qualifications for the position.
>
> **Q. Do the new rules apply to all applicants with disabilities?**
>
> A. No, the new rules apply only to those individuals with mental
> retardation, severe physical disabilities, or psychiatric
> disabilities. (References: Executive Orders 12125 and 13124)
>
> **Q. Why do the changes apply only to those with mental retardation,
> severe physical disabilities, or psychiatric disabilities?**
>
> A. The Executive Orders authorizing these appointments are limited to
> people with mental retardation, severe physical disabilities, and
> psychiatric disabilities. Executive Order 12125 dated March 15, 1979,
> and Executive Order 13124 dated June 4, 1999, permit individuals with
> mental retardation, severe physical disabilities, or psychiatric
> disabilities to obtain competitive status after two years of
> satisfactory service in an excepted service position. These Executive
> Orders were established to assist these individuals with disabilities
> and to build a Federal workforce that draws from the strength of
> America\'s diversity.
>
> **Q. Is there a comprehensive list of the specific disabilities that
> are included (or excluded) under the new rules?**
>
> A. This regulation covers individuals with mental retardation, severe
> physical disabilities, or psychiatric disabilities. The new rules do
> not specifically include or exclude any one particular type of
> disability under these three classes of disability. Different Federal
> programs use different operational definitions of disability, as do
> researchers, advocacy groups, and other interested parties. Variations
> occur because many groups define disability for different purposes.
> Determinations whether a specific disability is included or excluded
> under the new rules for the purposes of appointment under 5 CFR
> 213.3102(u) are made by the expanded entities previously identified in
> this document. Hiring agencies may also consult the Americans with
> Disabilities Act, the Rehabilitation Act of 1973, agencies such as the
> Department of Veterans Affairs, and State Vocational Rehabilitative
> Services offices for additional guidance regarding particular medical
> conditions.

##### Selection of Applicants with Disabilities

> **Q. How many times can an individual be appointed under this
> authority?**
>
> A. There is no limit on the number of times an individual may be
> appointed as long as he/she meets the regulatory requirements for
> appointment.
>
> **Q. Do the new rules create a hiring priority for individuals with
> disabilities?**
>
> A. No, the new regulation does not provide for priority in Federal
> hiring. The regulation applies to excepted service appointments.

##### Appointment Type

> **Q. What is the appointment authority for people with disabilities
> under this regulation?**
>
> A. People with disabilities are appointed under 5 CFR 213.3102(u).
>
> **Q. What is the Federal agency\'s process to convert employees
> currently under 5 CFR 213.3102(t) and 5 CFR 213.3102(gg) appointments
> to the new single authority, 5 CFR 213.3102(u) authority?**
>
> A. Agency Human Resources Offices will process Standard Form 50\'s,
> Notification of Personnel Actions, in accordance with OPM\'s Guide to
> Processing Personnel Actions. This Guide will be updated with the
> appropriate codes for use when converting current employees on the (t)
> or (gg) authorities to (u). OPM will issue official guidance
> concerning correct coding procedures.

##### Temporary Appointments

> **Q. May agencies appoint individuals to temporary appointments in
> lieu of a job readiness certification?**
>
> A. Yes, at agency discretion, an individual may be appointed to a
> temporary position under the 5 CFR 213.3102(u) authority in lieu of a
> job readiness certification. The hiring agency may then convert the
> individual to a time-limited or permanent appointment, again under 5
> CFR 213.3102(u), at any time during the temporary appointment. (The
> beginning date of creditable service, for conversion to career/career
> conditional conversion purposes, is the effective date of the
> conversion to the excepted appointment). The agency may also, at its
> discretion, accept service under another type of temporary appointment
> in the competitive or excepted service as proof of job readiness.
>
> **Q. What are the temporary appointment options under the new
> regulation?**
>
> A. Under the new 5 CFR 213.3102(u) appointing authority, a hiring
> agency may make:

-   A temporary appointment for an individual who has the proof of
    disability but not the certification of job readiness. Using some
    type of temporary appointment in lieu of certification of job
    readiness has long been available to agencies. OPM is continuing
    this practice but clarifying it in the context of the revised
    appointing authority. The individual may work under the 5 CFR
    213.3102(u) appointment until the agency determines that the
    individual is able to perform the duties of the position, or he/she
    gains the certification from one of the entities listed in this
    document. Once certification is obtained, the agency may then
    appoint the individual to a time-limited or permanent appointment
    under the 5 CFR 213.3102(u) authority. If the individual does not
    gain certification during the appointing authority timeframe, or
    does not demonstrate satisfactorily his or her ability to perform
    the duties of the job, the agency must separate the employee. (Refer
    to 5 CFR 213.104 for the definition and restrictions on temporary
    appointments in the excepted service.)

-   A temporary appointment of an individual who provides proof of a
    disability and certification of job readiness, when the duties of
    the position do not require it to be filled on a permanent basis.
    (Refer to 5 CFR 213.104 for the definition of temporary appointment)

##### Non-temporary Appointments

> **Q. What are other appointment options under the new appointing
> authority?**
>
> A. Under the new 5 CFR 213.3102(u) appointing authority, a hiring
> agency may also, in addition to the temporary appointments identified
> in the question above, make:

-   A time-limited appointment of an individual who provides proof of
    disability and certification of job readiness, when the duties of
    the position do not require it to be filled on a permanent basis.
    (Refer to 5 CFR 213.104 for the definition of time-limited
    appointment.)

-   A permanent appointment of an individual who provides proof of
    disability and certification of job readiness.  Note to hiring
    agencies: the intent of Executive Orders 12125 and 13124 is to
    permit these deserving individuals (upon meeting the requirements)
    to obtain civil service competitive status which is obtained through
    conversion to the competitive service rather than remaining in the
    excepted service.

##### 

##### Reduction-in-Force

> **Q. What is the impact of the consolidation of the three appointing
> authorities in a Reduction-in-Force (RIF)?**
>
> A. The final regulations establish a new 5 CFR appointing authority (5
> CFR 213.3102(u)) that consolidates multiple excepted appointing
> authorities into one expanded excepted appointing authority. Impact
> will depend on the actual circumstances of the restructuring, and how
> an agency decides to effect the RIF. Agencies have discretion in
> determining which positions to abolish, as well as discretion to
> provide affected competing excepted service employees with certain
> assignment rights. Therefore, impact (positive, neutral, or negative)
> depends on the implementation of a RIF by the agency.

##### Safeguarding Confidential Information

> **Q. How will agencies safeguard confidential medical information?**
>
> A. There are no changes to the current procedures. Per OPM\'s Guide to
> Personnel Record keeping (http://www.opm.gov/feddata/recguide.pdf the
> employing agency must maintain any authoritative medical
> documentation, certificate of disability, statement of employability,
> etc., in a separate, confidential folder, rather than in the person\'s
> Official Personnel Folder (OPF). The information must be treated as
> confidential medical records with access limited only to those whose
> official duties require such access. OPM encourages agencies to
> develop written policies to further ensure that the confidentiality
> and security of private information is maintained.

##### Conversion - Temporary 5 CFR 213.3102(u) Appointment to Permanent 5 CFR 213.3102(u) Appointment

> **Q. Does an individual\'s work experience, while on a temporary
> appointment, count towards the 2 year time period required for
> noncompetitive conversion to career-conditional employment if that
> individual is subsequently converted to a non-temporary 5 CFR
> appointment?**
>
> A. Yes.

##### Conversion - Permanent 5 CFR 213.3102(u) Appointment to Career or Career-Conditional Appointment

> **Q. How can applicants with disabilities appointed under 5 CFR
> 213.3102(u) receive a career or career-conditional appointment under
> these regulations?**
>
> A. An agency may noncompetitively convert to a career or
> career-conditional appointment in the competitive service an employee
> who has completed 2 years of satisfactory service under this
> authority. Satisfactory service is service that begins with a
> non-temporary (e.g., permanent or indefinite) 5 CFR 213.3102(u)
> appointment. (Refer to 5 CFR 315.709)
>
> **Q. Is conversion to a career or career-conditional appointment
> mandatory after 2 years on a 5 CFR 213.3102(u) appointment?**
>
> A. No, conversion to a career or career-conditional appointment is not
> mandatory. The hiring agency maintains the discretion to determine
> whether an employee is ready for placement in the permanent career
> workforce. The agency is not required to convert an individual on the
> 5 CFR 213.3102(u) appointing authority; however, the intent of
> Executive Orders 12125 and 13124 concerning employment of persons with
> mental retardation, severe physical disabilities, and psychiatric
> disabilities is to permit these individuals to obtain \"civil service
> competitive status.\" Civil service competitive status is obtained
> through conversion to the competitive service, rather than remaining
> in the excepted service.
>
> **Q. Are individuals with disabilities eligible for noncompetitive
> conversion to a career or career-conditional appointment only in the
> agency where he or she worked prior to completion of the 2-year
> period?**
>
> A. No, individuals with disabilities are eligible to be
> noncompetitively converted in any Federal agency. Agency selective
> placement coordinators are urged to try and place disabled people with
> other agencies, if placement in their own agency is not possible.
> Checking the job listings on the OPM USAJOBS
> ([www.usajobs.opm.gov](http://www.usajobs.opm.gov/)) is one way to
> locate appropriate positions for these individuals.
>
> **Q. If an agency wants to hire a person with a disability converting
> from a 5 CFR 213.3102(u) appointment who worked, while on the
> appointment, with another agency, does the gaining agency have to
> clear the Reemployment Priorities List (RPL)?**
>
> A. Yes, if the individual is from a different agency. However, if the
> person is going from one location/activity/component to another
> location/activity/component in the same agency, the agency would not
> have to clear the RPL. For purposes of the RPL, all DOD agencies are
> considered the same agency. DOD agencies (e.g., Defense Logistics
> Agency, Defense Investigative Service) and the Departments of Army,
> Navy, and Air Force are all considered DoD.
>
> **Q. Are candidates subject to a new 2-year conversion period if they
> move from one position to another position?**
>
> A. No, in a case of a 5 CFR 213.3102(u) appointee transferring from
> one agency to another, time previously spent under a Schedule A
> appointment counts toward the completion of the 2-year period if the
> person is reappointed without a break in service.

*The ABCs of SCHEDULE A*

For the Hiring Manager

How to Hire Using the Schedule A Appointing Authority

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . 2

EASY HOW TO STEPS . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . 3

FREQUENTLY ASKED QUESTIONS . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . 5

RESOURCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . 7

RECRUITMENT / HIRING . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . 7

ACCOMMODATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . 8

**INTRODUCTION**

One of the most common complaints about the federal hiring process is
that it takes too long. As noted by the Merit Systems Protection Board
in its report entitled Reforming Federal Hiring \-- Beyond Faster and
Cheaper (September 2006), it takes an average of 102 days to complete
all of the steps in the competitive hiring process, from making the
request, to making the appointment. Certainly you, as a federal hiring
manager or official, do not look forward to the prospect of spending
three months or more trying to fill a position. Moreover, we know that
excellent potential employees are lost because they too do not want to
wait (or cannot afford to wait) months for a hiring decision. So what
can you do? Use Schedule A!

Schedule A is an excellent alternative to the frustrating and bloated
traditional hiring process. Moreover, hiring individuals with
disabilities furthers several goals. Every federal agency strives to be
diverse, inclusive and provide equal opportunity to all. Agencies
appreciate that a diverse workforce is its greatest asset. Further,
Congress has mandated that the federal government be the model employer.
Reaching that status means federal agencies need to make significant
improvement in the area of hiring people with disabilities. Meeting that
goal while also getting positions filled quickly makes using Schedule A
a WIN-WIN proposition!

Using the Schedule A appointing authority, found at 5 CFR § 213.3102(u),
qualified candidates who meet the Office of Personnel

Management's (OPM) guidelines can be hired non-competitively --

-   without the typical recruitment headaches;

-   without posting and publicizing the position; and

-   without going through the certificate process.

How? By following the Easy How-To Steps detailed in the next section.

**EASY HOW-TO STEPS**

1\. Hiring managers should first approach the Selective Placement
Coordinator (SPC) or Disability Program Manager (DPM) in their agency
(this person might be housed in HR, or they may be a part of the EEO
office). The manager should alert the SPC/DPM of the job opening. The
manager should also explain what competencies the ideal candidate should
possess, thinking critically about the essential functions of the
position.

2.  A skilled SPC/DPM, after consulting his/her resources (which should
    include, but not be limited to, all local colleges and universities,
    local Vocational Rehabilitation service providers, the Employer
    Assistance & Recruiting Network (EARN), the Department of Labor's
    Workforce Recruitment Program (WRP), the Department of Defense's
    Wounded Warriors program, counterparts at other agencies, etc.),
    will be able to come back to the manager with potential Schedule A
    applicants who have already been determined to meet the
    qualifications for the position. The number of candidates the
    manager is presented with will vary greatly, depending on the level
    of specialty required by the job.

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2.  You, as the hiring official, can now review the resumes and
    references of the applicants, conduct interviews, etc., and then
    make a selection. Resume and reference reviews should be thorough to
    accurately assess job readiness. If you are not satisfied with any
    of the Schedule A applicants presented to you, you retain the option
    of using the traditional competitive process to fill the vacancy.

3.  The selection decision, once made, should be relayed to the
    appropriate persons within HR who extend offers of employment on
    behalf of the agency. For some agencies, this might be handled
    through the SPC/DPM.

4.  Once the offer has been accepted, a start date may be established to
    bring the candidate on board. This requires coordination with the
    SPC/DPM and/or your servicing HR Specialist to ensure that any
    accommodation needed is in place on your new employee's first day.

***That's it!***

Seem easy? It is! Moreover, a skilled SPC/DPM will keep a cadre of
Schedule A eligible candidates on stand-by (this can take the form of a
"resume bank" or "Schedule A Registry," and should include people with
the necessary knowledge, skills and abilities needed to succeed in the
major occupations of the agency), so that they can assist busy hiring
managers to very quickly fill job openings. No more three, six, or nine
month waits!!

**The Federal Government -- Opportunities for All!**

**FREQUENTLY ASKED QUESTIONS**

Q. What is Schedule A?

A. Schedule A is an appointing authority, or hiring authority. t is an
Excepted Service appointment for persons with disabilities. The
regulations guiding the Excepted Service -- Appointment of Persons with
Disabilities, Career, and Career-Conditional Appointment -- are found in
the Code of Federal Regulations (CFR). The citation is 5 CFR §
213.3102(u).

Q. Why should agencies consider using this hiring authority?

A. Agencies should use this hiring authority for a number of good
reasons:

-   Individuals with disabilities are an untapped source of excellent
    applicants;

-   No public notice is required. In fact, many of the usual HR-related
    stumbling blocks are avoided, which could result in significantly
    reducing the time necessary to hire a well-qualified candidate;

-   Doing so can support an agency's Career Patterns initiative.
    Technological advances and growing emphasis on tele-work may
    dovetail with the needs of many applicants with disabilities; and

-   Agencies don't have to clear 'surplus employee' lists prior to using
    Schedule A.

Q. What about accommodations? Aren't they expensive and a hassle?

A. No! More often than not, providing accommodations is simple and
usually free! Moreover, you are not alone in trying to work through
accommodation requests. Your agency's SPC/DPM can help you. Your agency
may also have a person who serves as the Reasonable Accommodation
Coordinator (RAC), to help with accommodation needs. There are also
several resources outside of your agency which can help, some of which
are listed herein -- just check our Resources page!

> And remember, just as we all need assistance at some point in the work
> place, accommodations may be needed by an individual with a
> disability. You want all of your employees to be at their best at
> work, and accommodations play a role in reaching that goal. Providing
> accommodations, however, does not have to be a difficult, expensive or
> time consuming process.

Q. Is this appointment to a permanent position?

A. It can be. Agencies may self-determine what type of placement to
make, based on the needs of the position, as well as the qualification
level of the candidate. A hiring agency may make a temporary
appointment, a time-limited appointment when the duties of the position
do not require it to be filled on a permanent basis, or a permanent
appointment. Permanent appointments are strongly encouraged, unless
there is a compelling reason to do otherwise.

Q. What about a probationary period?

A. Depending on the type of appointment, probationary periods typically
last up to two years. Schedule A candidates should be held to the same
performance standards as all other employees. Once the employee's
accommodation needs, if any, have been met, then you should expect no
more or less from a Schedule A employee than you would from any other
employee. Once the probationary period has been successfully completed,
employees should be converted to permanent competitive status.

**RESOURCES**

**RECRUITMENT / HIRING**

EARN -- The Employer Assistance & Recruiting Network (EARN) is a free
service that connects employers looking for quality employees with
skilled job candidates. EARN provides recruiting services, as well as
employer success stories and information on the business case for hiring
people with disabilities. Further information can be found at
<http://earnworks.com/>.

WRP -- The Workforce Recruitment Program (WRP) is a recruitment and
referral program that connects federal sector employers nationwide with
highly motivated post-secondary students and recent graduates with
disabilities who are eager to prove their abilities in the workplace
through summer or permanent jobs. Students represent all majors, and
range from college freshmen to graduate students and law students. A
searchable database is available through the WRP website. WRP is ready
to help you fill your summer or permanent hiring needs! Further
information can be found at [http://wrp.gov](http://wrp.gov/).

For Veterans with Disabilities -- There are numerous organizations and
agencies that exist to assist veterans with disabilities find and
maintain employment. The following is a sample of useful resources to
keep handy:

-   The Department of Labor's (DOL) Veterans Employment & Training
    Service <http://www.dol.gov/vets/welcome.html>

-   Hire Heroes <http://www.hireheroesusa.org/>

-   Wounded Warriors Project
    [http://www.woundedwarriorproject.org](http://www.woundedwarriorproject.org/)

Advocacy Groups -- There are several different advocacy groups that also
serve as excellent resources for recruiting and hiring individuals with
disabilities. The following is a sampling of those resources:

-   American Association of People with Disabilities
    http://www.aapd-dc.org/

-   Council of State Administrators of Vocational Rehabilitation
    <http://www.rehabnetwork.org/>

-   Deaf and Hard of Hearing in Government <http://dhhig.org/>

-   American Council of the Blind http://www.acb.org/

Federal Resources -- There are numerous federal programs designed to
meet the needs of people with disabilities in finding employment. The
following is a non-exhaustive list of programs/resources:

-   The Office of Personnel Management's "Disability Site"
    <http://www.opm.gov/disability/>

-   DOL's Office of Disability Employment Policy
    <http://www.dol.gov/odep/>

-   Also check out the federal government's one-stop web site for people
    with disabilities, their families, employers, veterans and service
    members, workforce professionals and many others.
    [www.DisabilityInfo.gov](http://www.disabilityinfo.gov/)

**ACCOMMODATIONS**

CAP -- Within the federal government there is a wonderful program housed
within the Department of Defense. The Computer/Electronic Accommodations
Program (CAP) provides assistive technology and services to people with
disabilities throughout the federal government FREE OF CHARGE! That
means you, as a hiring manager, can tap this resource for help in
accommodating an employee with a disability. CAP will do the needs
assessment, buy the needed technology, train the employee on how to use
it, and follow up with updates. All you have to do is ask! (Note: Before
contacting CAP directly yourself, check with the SPC/DPM or HR, as they
may already have a relationship with CAP.) Further information can be
found at <http://www.tricare.mil/cap/>.

JAN -- The Job Accommodation Network (JAN) represents the most
comprehensive resource for job accommodations available, and is a
terrific and easy-to-use resource. This free consulting service is
designed to increase the employability of people with disabilities. JAN
provides individualized worksite accommodation solutions, as well as
information on job accommodations and related subjects for employers and
people with disabilities. Additional information can be found at
<http://www.jan.wvu.edu/>.

U.S. Equal Employment Opportunity Commission

1-800-669-4000 / TTY 1-800-669-6820

www.eeoc.gov

Rev. 2/08