HomePersonal Assistance Services (PAS) Policy

# 									Personal Assistance Services (PAS) Policy							

July 24, 2019

*(Applies to Foreign Service and Civil Service Employees)*

#### **Obligation to Provide Personal Assistance Services**

a. It is the policy of the U.S. Department of State (the Department) to provide Personal Assistance Services (PAS) to an employee who requires such services due to a “targeted disability.” The U.S. Equal Employment Opportunity Commission (EEOC)[1]defines PAS as follows (*See* 29 C.F.R. § 1614.203(a)(5)): “The term *personal assistance services*means assistance with performing activities of daily living that an individual would typically perform if he or she did not have a disability, and that is not otherwise required as a reasonable accommodation, including, for example, assistance with removing and putting on clothing, eating, and using the restroom.” The employee or independent contractor whose primary job functions include provision of personal assistance services is referred to as the PAS Provider.

b. Under no circumstance is a PAS Provider to perform any of the employee’s essential job duties. The PAS Provider is only able to provide access to otherwise inaccessible aspects of the job or personal care. Services provided may include pushing a wheelchair or assisting an individual to get into or out of a vehicle at the worksite. Services do not include helping individuals perform their specific job functions, unlike sign language interpreters who provide services for employees who are deaf to facilitate communication. Employees who receive PAS may not direct the provider to perform tasks unrelated to personal assistance services. Any change in services must be approved in advance by the Disability/Reasonable Accommodation Division (HR/OAA/DRAD). Under no circumstance may the performance of other tasks result in failure to provide personal assistance services required under paragraph (d)(5)(i) of 29 C.F.R. § 1614.203.

c. Eligible employees may receive PAS during work hours, for job-related travel, and to participate in employer sponsored events. Work hours include time that an employee is teleworking, whether the telework is part of an agency telework program available to all employees or is being provided as a reasonable accommodation.

d. NOTE: A personal services contractor (PSC) may be covered by the Department’s Reasonable Accommodation and/or Personal Assistance Services procedures, if the PSC shares an employer-employee relationship with the Department. A PSC may contact his or her supervisor and/or HR/OAA/DRAD to discuss his or her coverage under these procedures.

**Definitions:**

*(Applies to Foreign Service and Civil Service Employees)*

a. The legal definitions of key terms relating to Personal Assistance Services are found in the EEOC’s Final Rule on Affirmative Action for Individuals with Disabilities in Federal Employment, Fed. Reg. Vol. 82, No. 1 (Jan. 3, 2017) and 29 C.F.R. § 1614.203(a). The Department includes definitions of certain terms here, for the convenience of employees and applicants, and employees and applicants are also encouraged to review the legal definitions found in the authorities listed above.

b. Personal assistance services: Assistance with performing activities of daily living that an individual would typically perform if he or she did not have a disability, and that is not otherwise required as a reasonable accommodation, including, for example, assistance with removing and putting on clothing, eating, and using the restroom.

c. Personal assistance services (PAS) provider: The employee or independent contractor whose primary job functions include provision of personal assistance services.

d. Targeted disability: A disability that is designated as a ‘‘targeted disability or health condition’’ on the Office of Personnel Management’s Standard Form 256 or that falls under one of the first 12 categories of disability listed in Part A of question 5 of the Equal Employment Opportunity Commission’s Demographic Information on Applicant form.

e. Undue hardship:  An action requiring significant difficulty or expense to the employer.  Factors to be considered include:
        - The nature and net cost of PAS needed;
        - The financial resources of the Department as a whole; and
        - The impact of PAS upon the operation of the Department’s mission, including the impact on the ability of other employees to perform their duties and to conduct business.

**Recipients of Requests from Employees:**

*(Applies to Foreign Service and Civil Service Employees)*

a. An employee assigned to a position in the United States may make an oral or written request for PAS to the employee’s supervisor; a supervisor or manager in the employee’s immediate chain of command; the employee’s bureau executive director; or the Disability/Reasonable Accommodation Division (HR/OAA/DRAD).

b. An employee assigned to a position outside the United States may make an oral or written request for PAS to his or her supervisor; a supervisor or manager in his or her chain of command; the post’s management officer; or HR/OAA/DRAD.

c. Individuals requiring PAS during a training assignment to the Foreign Service Institute (FSI) at the George P. Shultz National Foreign Affairs Training Center (Shultz NFATC) should submit a request for PAS, orally or in writing, to HR/OAA/DRAD.

**Initiating Requests for PAS:**

(Applies to Foreign Service and Civil Service Employees)

a. An employee may request PAS through Disability/Reasonable Accommodation Division (HR/OAA/DRAD) at any time, orally or in writing.

b. A representative may make a request on behalf of someone else.  A family member, health professional, or other representative acting on the Department of State employee’s or employment applicant’s behalf may request PAS.  If the Department receives a request from a representative, HR/OAA/DRAD will seek confirmation from the employee.

**Processing Requests for PAS:**

a. When an employee makes a request for PAS, the interactive process is initiated. If clarification is necessary to determine eligibility for PAS, based on disability status, the Disability/Reasonable Accommodation Division (HR/OAA/DRAD) will consult with the Bureau of Medical Services (MED).

**Decision Maker:**

*(Applies to Foreign Service and Civil Service Employees)*

a. The Disability/Reasonable Accommodation Division (HR/OAA/DRAD) is the Department’s designated decision maker on all requests for Personal Assistance Services (PAS).

b. The Under Secretary for Management or designee must approve all denials of PAS based on undue hardship.

**Time Frame for****Processing Requests and Providing PAS:**

*(Applies to Foreign Service and Civil Service Employees)*

Generally

a. The Disability/Reasonable Accommodation Division (HR/OAA/DRAD) will process requests for PAS and deliver the services promptly.  The time necessary to process a request is dependent on numerous factors including, but not limited to, whether it is necessary to obtain supporting information such as medical documentation; procurement processes; hiring processes; and other circumstances.  For examples of extenuating circumstances, see “Extenuating Circumstances” section in this document.

b. The time frame for processing a request (including providing PAS, if approved) is as soon as possible but no later than 30 business days from the date the request is made orally or in writing. The time frame begins when a request for PAS is made, and not necessarily when it is received by HR/OAA/DRAD. Therefore, everyone involved in processing a request should respond as quickly as possible. This includes referring a request to HR/OAA/DRAD and providing technical assistance to HR/OAA/DRAD regarding issues raised by a request.

c. This 30-day period includes the two day time frame in which supervisors/managers should forward requests to HR/OAA/DRAD. Employees who request PAS should communicate directly with HR/OAA/DRAD regarding the processing and time frame of their request for PAS. HR/OAA/DRAD must contact the requestor as soon as possible after a request for PAS is made.

d. The Department will process requests and, where appropriate, provide PAS in as short a period of time as reasonably possible. The time frame above indicates the maximum amount of time it should generally take to process a request and provide PAS. HR/OAA/DRAD will strive to process the request and provide PAS sooner, if possible.

e. In the case of newly hired employees or employees being assigned to a new position, the Department will try to have PAS in place when the employee first reports to duty.  However, this may not always be possible.

f. If HR/OAA/DRAD must request medical information or documentation from a requestor’s medical care provider, the time frame will stop on the day that HR/OAA/DRAD makes a request to the individual to obtain medical information or sends out a request for information/documentation. The time frame will resume on the business day that the information/documentation is received by HR/OAA/DRAD.

g. If the targeted disability is obvious or already known to HR/OAA/DRAD, if it is clear why PAS is needed, and if PAS can be provided quickly, then HR/OAA/DRAD should not require the full 30 business days to process the request.

h. When a delay occurs in processing or providing PAS, HR/OAA/DRAD must notify the individual of the reason for the delay as soon as possible. To review how HR/OAA/DRAD may work with the employee to provide interim PAS solutions, see the “Providing Interim Relief Measures” section in this document.

**Expedited Processing of a Request:**

a. When necessary, the Department will make an effort to ensure expedited processing of a request for PAS.  Expedited processing might be necessary where PAS is needed to participate in a specific activity that is scheduled to occur shortly. This includes where PAS is needed:
        - To enable an employee to attend a last minute meeting or other office related event.
        - To enable an employee to participate in work-related travel, both domestic and abroad.

**The Interactive Process:**

*(Applies to Foreign Service and Civil Service Employees)*

a. The interactive process is a back-and-forth communication between the individual desiring PAS, or his or her representative, and a Department of State employee, such as a Disability/Reasonable Accommodation Division (HR/OAA/DRAD) Reasonable Accommodation Analyst and/or a member of management, to clarify the workplace barrier the individual is experiencing; the disabling condition at issue; and the proposed solution.  The obligation to initiate the interactive process, in most circumstances, lies with the individual requesting PAS, or his or her representative.

b. The individual requesting PAS and HR/OAA/DRAD will engage in the interactive process to discuss the request if, for example:
        - It is not evident that the individual has a targeted disability;
        - It is not clear whether there is an effective PAS solution; or
        - There is more than one possible solution in order to provide PAS.

c. Communication is a priority throughout the entire process. On receiving a request for PAS, HR/OAA/DRAD will explain to the individual that HR/OAA/DRAD will be making the decision on the request in consultation with other Department of State subject matter experts, as needed.

d. When the request for PAS is made by a third party, HR/OAA/DRAD must, if possible, confirm with the employee with a targeted disability that he or she wants PAS and authorizes the third party to discuss the need for PAS with the Department, before proceeding.  It may not be possible to confirm the request if the individual has, for example, been hospitalized.  In this situation, HR/OAA/DRAD will process the third party’s request and will consult directly with the individual needing PAS as soon as it is practicable to do so.

e. HR/OAA/DRAD, in consultation with Office of Medical Services (MED) and the Office of the Legal Advisor (L), as appropriate, will determine whether an individual has a targeted disability within the meaning of the Rehabilitation Act.  Additional medical documentation about the individual’s disability may be requested.

f. Per the Department’s policy on the “Confidentiality of Medical Information, Legal Authorities” (3 FAH-1 H-3671.4-1), the Bureau of Medical Services (MED) is required to comply with the Privacy Act and the Rehabilitation Act.

g. An employee’s (or his or her representative’s) failure to respond to requests for documentation identified as necessary in order to consider a request for PAS, or to cooperate in the Department’s efforts to obtain such documentation, may result in a delay or denial of a PAS request.

h. HR/OAA/DRAD will identify possible PAS solutions, in consultation with the individual requesting PAS, the immediate supervisor, manager, the Bureau’s Executive Director’s Office, and/or Departmental subject matter experts, as appropriate.

i. The individual requesting PAS must help, to the extent possible, to identify an effective PAS solution.  While the individual does not have to be able to specify the precise solution, he or she does need to describe the problems posed by the workplace barrier(s).

j. Any delays by Department personnel may result in the agency’s failure to meet the Department’s obligations to provide PAS. The Department expects that all agency personnel will give a high priority to responding quickly to HR/OAA/DRAD’s request for information or assistance.

**Confidentiality Requirements:**

a. Under the Rehabilitation Act, medical information obtained in connection with the PAS process must be kept confidential. This means that all medical information that the Department obtains in connection with a request for PAS must be kept in files separate from the individual’s personnel file. This includes the fact that PAS has been requested or approved. It also means that any Department employee who obtains or receives such information is bound by these confidentiality requirements.

b. When the Disability/Reasonable Accommodation Division (HR/OAA/DRAD) deems it necessary to share information with select Department personnel to make appropriate determinations regarding a PAS request, HR/OAA/DRAD will inform the recipient of these confidentiality requirements. The information disclosed will be no more than is necessary to process the request. In certain situations, HR/OAA/DRAD will not necessarily need to reveal the name of the requestor and/or the office in which the requestor works, or even the type of disability.

c. Current and relevant medical information is required to properly assess and address the needs of the individual. In addition, the Department’s policy on “Insufficient Medical Documentation” (3 FAH-1 H-3671.3) states that medical subject matter professionals are the best qualified to review requests for a proper determination.

**Extenuating Circumstances:**

*(Applies to Foreign Service and Civil Service Employees)*

a. The following non-exhaustive list provides examples of extenuating circumstances that may lengthen the time needed to make a decision about and/or provide PAS:
        - There is an outstanding request for medical information, or the Bureau of Medical Services (MED) is evaluating medical information which has been provided;
        - The individual needs to use the PAS solution on a trial basis to ensure it is effective;
        - New staff needs to be hired or contracted for;
        - The requested PAS raises security concerns, and additional time may be needed to evaluate the request and consider other options; and/or
        - The requestor does not need the accommodation within the 30 day time frame, for example, due to the an employee’s expected date of Entry on Duty (EOD), transfer, or assignment.

b. Where extenuating circumstances exist, the Disability/Reasonable Accommodation Division (HR/OAA/DRAD) should notify the individual of the reason for the delay and the approximate date on which a decision or provision of PAS is expected.

**Providing Interim Relief Measures:**

(Applies to Foreign Service and Civil Service Employees)

a. The Disability/Reasonable Accommodation Division (HR/OAA/DRAD) may decide that interim relief measures are appropriate if:
        - They do not interfere with the operations of the agency; and
        - The individual is informed in writing that the measures are being provided only on a temporary/interim basis, while awaiting either the provision of PAS or a decision on whether the PAS request will be granted.

b. If an interim relief measure is appropriate, HR/OAA/DRAD will continue the interactive process and ensure that interim, or temporary, solutions are provided to the individual.

**Notification of Decision:**

*(Applies to Foreign Service and Civil Service Employees)*

a. The Disability/Reasonable Accommodation Division (HR/OAA/DRAD) will inform the individual requesting PAS or his or her representative whether the requested PAS solution will be granted; whether an alternative PAS solution will be provided; or that the request is denied. The notification of decision will be provided in writing by HR/OAA/DRAD.

b. If HR/OAA/DRAD grants the requested PAS solution or an effective alternative solution, the notification will describe the solution being offered as well as when it will be provided. A decision to provide a solution other than the one specifically requested will be considered a decision to grant PAS. The notification will explain why the Department believes that the chosen solution will be effective.

c. If HR/OAA/DRAD denies the PAS request, the notice will include the reason for denial. The Department cannot simply state that a PAS request is denied because of “undue hardship” or because it would be “ineffective.” Rather, the notification will specifically state why the PAS solution would result in undue hardship or why it would be ineffective.

d. In order to ensure the implemented PAS solution continues to be effective, HR/OAA/DRAD has the right to reassess its effectiveness. In addition, the employee may ask for HR/OAA/DRAD to review its effectiveness throughout the duration of the implemented PAS solution.

**Denial of Requests for PAS:**

**Grounds for Denial:***(Applies to Foreign Service and Civil Service Employees)*

The following grounds for denial are a non-exhaustive list of reasons why the Disability/Reasonable Accommodation Division (HR/OAA/DRAD) may deny a request for PAS:

a. The employee does not have a targeted disability.  If the individual requesting PAS does not provide adequate documentation or other evidence indicating that he or she has a targeted disability within the meaning of the Rehabilitation Act, he or she does not have a legal right to a PAS;

b. There is no PAS solution that would permit the employee to receive assistance with performing activities of daily living that an individual would typically perform if he or she did not have a disability;

c. The requested PAS solution would constitute an undue hardship for the Department.  Even if a requested PAS solution would be effective, and is necessary to receive assistance with performing activities of daily living, it generally can be denied if granting the request would constitute an undue hardship for the Department.  The Under Secretary for Management (M) or designee must approve undue hardship determinations; or

d. Granting the requested PAS solution would violate other laws, regulations, or collective bargaining agreements.  The Department may not be required to grant a PAS solution if it would violate Federal laws, regulations, or collective bargaining agreements.

**Reconsideration of Request Previously Denied:**

An individual whose request for PAS is denied may request reconsideration by the Disability/Reasonable Accommodation Division (HR/OAA/DRAD) within 10 business days of receipt of the written decision denying PAS or may appeal the decision in accordance with the “Appeal of a PAS Denial” section in this document.

**Appeal of a PAS Denial:*****(Applies to Foreign Service and Civil Service Employees)*

An individual whose request for PAS is denied may appeal that denial by submitting information, in writing, to the Director General of the Foreign Service and Director of Human Resources (DGHR) within 10 business days of receipt of the written decision denying PAS.

**Right to File a Complaint:**

a. Pursuant to 29 C.F.R. § 1614.203(d)(3)(iii)(D) and 29 C.F.R §1614.105, if an individual requesting PAS believes he or she has been subjected to discrimination, harassment, and/or reprisal for prior protected activity or opposition to illegal discrimination, the right to file a complaint will be lost unless the employee initiates contact with an EEO Counselor or the Office of Civil Rights (S/OCR) within 45 calendar days of denial, regardless of whether the employee participates in an informal dispute resolution process. This action will also preserve the right to file a formal complaint of discrimination with S/OCR.

b. Contact with S/OCR or an EEO Counselor is the first step in the EEO process. Contact S/OCR at: (202) 647-9295 or General Email at: SOCR_Direct@state.gov. To request EEO Counseling email: SOCRCounselorChannel@state.gov. S/OCR is located at: 2201 C Street, NW, Suite 7428, Washington, DC 20520.

c. The names of EEO Counselors are often listed on the EEO bulletin boards and/or EEO SharePoint sites maintained by specific posts/offices. If an individual is unable to locate an EEO Counselor, he or she can contact S/OCR directly. S/OCR maintains a roster of State’s EEO Counselors and can assign an available EEO Counselor.

**Right to Alternative Dispute Resolution Process:**

All employees of the Department of State who file EEO complaints of discrimination will have the opportunity to elect Alternative Dispute Resolution (ADR). ADR is available in both the informal and formal EEO processes.

Participation in the EEO/ADR process is at the discretion of the Aggrieved/Complainant. Management’s participation in the EEO/ADR process is mandatory. Final authority for granting access to the ADR process rests with S/OCR.

#### **No Adverse Action/Prohibition Against Reprisal for Making a Request for PAS**

*(Applies to Foreign Service and Civil Service Employees)*

The Department of State prohibits reprisal against an individual because he or she has made a request for PAS.  See also the section on the “Right to File a Complaint” in this document and/or the “EEO Retaliation/Reprisal” policy in 3 FAM 1550.

**Funding and Payment for PAS:**

*(Applies to Foreign Service and Civil Service Employees)*

a. Funding for PAS will generally be provided by the Disability/Reasonable Accommodation Division (HR/OAA/DRAD).

b. The Department is permitted to compensate a family member for PAS that are provided in the workplace regardless of whether or not that family member also performs PAS off the job without compensation. If that family member is hired as a professional PAS provider at the Department, the Department must compensate the family member as either a contractor or federal employee.

#### **Selection of Personal Assistance Services Providers**

*(Applies to Foreign Service and Civil Service Employees)*

a. When selecting someone who will provide personal assistance services to a single individual, the Department will give primary consideration to the individual’s preferences to the extent permitted by law.

b. Disability/Reasonable Accommodation Division (HR/OAA/DRAD) will coordinate the procurement of the PAS and provide the employee and supervisor with instructions for scheduling and canceling services as needed.

c. The PAS Provider will meet with the employee and HR/OAA/DRAD to go over specifics of the individual’s needs, the tasks to be performed, and the manner in which tasks are to be performed. Any change in services must be approved in advance by HR/OAA/DRAD. The PAS Provider will document specific needs to deliver quality care, restricting personal health information only to HR/OAA/DRAD.

d. In the event that the PAS Provider has concerns that what is being asked by the employee with a targeted disability falls outside of the Department’s written contract/agreement or the employee with a targeted disability has concerns that they are not receiving appropriate services, both parties must immediately contact HR/OAA/DRAD. HR/OAA/DRAD will work with the employee and the Contractor/PAS Provider to address any concerns.

**Security Escorts for Contract Personal Assistance Services Providers:**

*(Applies to Foreign Service and Civil Service Employees)*

a. While security policies vary somewhat from one Department of State location to another, in general Department security policy requires that visitors be escorted by the person they are visiting at all times. The person who “signs for” the visitor at the guard desk is responsible for that visitor at all times until the visitor leaves.

b. Disability/Reasonable Accommodation Division (HR/OAA/DRAD) does not provide escorts for PAS Providers who are here to provide service to Department employees. Escorting the PAS Provider is the responsibility of the person who requests the service.

**PAS Providers on Official Travel:**

*(Applies to Foreign Service and Civil Service Employees)*

a. An employee who travels for work and who the Disability/Reasonable Accommodation Division (HR/OAA/DRAD) determines requires the services of a PAS Provider is not personally responsible for covering the additional, necessary costs incurred as a direct result of the travel. HR/OAA/DRAD will work with the employee and manager to determine whether a PAS Provider will be provided to travel with the employee, or whether the service will be provided at the destination only. HR/OAA/DRAD can explore both of these options even if the employee indicates a preference.

b. HR/OAA/DRAD may request justification to determine if the request is reasonable.

c. When an employee with a disability makes a new request for PAS for approved and official travel, the interactive process is initiated. If needed, a disability determination must be made, an analysis completed, and a solution identified.

----

        - See  29 C.F.R. 1614.203(a)(9) (“The term  targeted disability  means a disability that is designated as a ‘targeted disability or health condition’ on the Office of Personnel Management’s Standard Form 256 or that falls under one of the first 12 categories of disability listed in Part A of question 5 of the Equal Employment Opportunity Commission’s Demographic Information on Applicants form.”)

 

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