Personal Assistants for Handicapped Grant Application Reviewers and On-Site Compliance Reviewers Who Are Not Federal Employees B-252039 September 1, 1993 72 Comp.Gen. 305

B-252039: Sep 1, 1993

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May pay for personal assistants for handicapped grant and compliance reviewers who are not federal employees since the cost of the personal assistants is an allowable cost of acquiring the personal services of the handicapped grant and compliance reviewer. Asks whether the Department may pay for personal assistants for handicapped grant application reviewers and on-site compliance reviewers who are not federal employees. BACKGROUND Several statutory programs administered by OSERS require the use of grant application reviewers or on-site compliance reviewers who are not federal employees.[1] For example. We held that federal agencies could not pay for the services of attendants for handicapped employees attending training outside their regular duty stations because such expenses were personal in nature.

Personal Assistants for Handicapped Grant Application Reviewers and On-Site Compliance Reviewers Who Are Not Federal Employees B-252039 September 1, 1993 72 Comp.Gen. 305

Civilian Personnel Compensation Handicapped personnel attendants The Office of Special Education and Rehabilitative Services, Department of Education, may pay for personal assistants for handicapped grant and compliance reviewers who are not federal employees since the cost of the personal assistants is an allowable cost of acquiring the personal services of the handicapped grant and compliance reviewer.

DECISION The Assistant Secretary, Office of Special Education and Rehabilitative Services (OSERS), Department of Education, asks whether the Department may pay for personal assistants for handicapped grant application reviewers and on-site compliance reviewers who are not federal employees. For the reasons discussed below, we conclude that OSERS may pay for such assistants.

BACKGROUND

Several statutory programs administered by OSERS require the use of grant application reviewers or on-site compliance reviewers who are not federal employees.[1] For example, section 18 of the Rehabilitation Act of 1973, as added by Pub. L. No. 99-506, Sec. 109, 100 Stat. 1807, 1813 (1986), requires that:

"Applications for grants or contracts in excess of $60,000 in the aggregate authorized to be funded under this Act [29 U.S.C. Sec. 701 et seq.] . . . shall be reviewed by panels of experts which shall include a majority of non-federal members. Non-federal members may be provided travel, per diem, and consultant fees not to exceed the rate provided for grade GS-18 of the General Schedule under section 5332 of title 5, United States Code."

29 U.S.C. Sec. 717 (1988). Similarly, section 621(f)(3) of the Rehabilitation Act of 1973, as amended by Pub. L. No. 99-506, Sec. 703(d)(1), 100 Stat. 1807, 1832, requires the Department to perform on- site compliance reviews of "Projects With Industry" grantees, and mandates that at least one member of the review team be a nonfederal employee with relevant experience or expertise. 29 U.S.C. Sec. 795g(f)(3) (1988). Furthermore, section 711(f)(3) of the Rehabilitation Act of 1973, as amended by Pub. L. No. 99-506, Sec. 805(b), 100 Stat. 1807, 1839, requires the Department to perform on-site compliance reviews of grantees receiving funding under the "Centers for Independent Living" program, and specifies that at least one member of an on-site compliance review be a nonfederal employee with experience or expertise in the provision of independent living services. 29 U.S.C. Sec. 796e(f)(3) (1988).

OSERS' concern with its authority to pay for personal assistants for handicapped nonfederal grant application and on-site compliance reviewers stems from the presence of specific authority to cover such services for federal employees and prior Comptroller General decisions. With regard to the latter, in B-188710, Mar. 23, 1978, reconsideration denied, B-188710, Aug. 21, 1979, we held that federal agencies could not pay for the services of attendants for handicapped employees attending training outside their regular duty stations because such expenses were personal in nature. In response to this decision, Congress amended 5 U.S.C. Sec. 3102 and section 7 of the Federal Advisory Committee Act (FACA), to permit the employment of personal assistants for handicapped federal employees and advisory committee members both at their regular duty stations and while on travel status. Pub. L. No. 96-523, 94 Stat. 3039 (1980); see also H.R. Rep. No. 1279, 96th Cong., 2d Sess. 4 (1980). OSERS argues that while there is no explicit authority as there is for federal employees, section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. Sec. 794, and the Department's implementing regulations, 34 C.F.R. Part 105, provide the requisite authority to cover the subject expense.

OSERS indicates that it procures these nonfederal reviewers' consulting services through purchase orders. In order to accommodate nonfederal reviewers who are handicapped, OSERS proposes to pay for personal assistants from its program appropriations. The assistants' services would also be procured using purchase orders.

ANALYSIS

We do not view 5 U.S.C. Sec. 3102 or section 7 of FACA as limitations on OSERS' authority. Those statutes reflect no more than Congress' disagreement with our view reflected in B-188710, Mar. 23, 1978, reconsideration denied, B-188710, Aug. 21, 1979, that the expense of personal assistants for handicapped federal employees is not a proper object of expenditure of appropriated funds. The legislative history of the act amending those provisions indicates that Congress viewed the provision of personal assistants for federal employees as a reasonable accommodation for otherwise qualified individuals. See H.R. Rep. No. 1279, 96th Cong., 2d Sess. at 4, 5 (1980).

We also are not unmindful of the views of the House Committee on Post Office and Civil Service on a situation roughly analogous to that posed by OSERS. As introduced, the bill amending section 7 of FACA would have specifically extended the availability of appropriated funds to pay for personal assistants for handicapped consultants to advisory committees. In deleting this provision from the bill, the House Committee commented as follows:

"The committee believes that since consultants are retained on a contractual basis, the better approach is to leave arrangements for personal assistants to the terms of the contracts negotiated between handicapped consultants and advisory committees. The committee also believes that it would be inappropriate for the government to assign a personal assistant who would be bound by government employment and travel regulations to a consultant who would not be bound by those regulations."

We agree that the cost of personal assistants to assist handicapped grant and compliance reviewers are simply costs of acquiring the personal services of such reviewers. In our opinion, such costs are allowable and the Department may pay for personal assistants for handicapped grant and compliance reviewers who are not federal employees. Accordingly, we need not consider OSERS argument that section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. Sec. 794, and the Department's implementing regulations, 34 C.F.R. Part 105, provide the requisite authority to cover the subject expense.

1. Even where there is no such requirement, grant application reviewers, who are also referred to as field readers or peer reviewers, may include persons who are not federal employees. 34 C.F.R. Sec. 75.217(b)(2) (1992).